When is something said in private criminal? When it is threatening or abusive and likely to cause the reasonable person fear or alarm.
In Preston v PF Dundee, the appellant was convicted of a contravention of Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. He had engaged the services of an online chatroom where he proceeded to utter graphic statements promoting the rape and abuse of children. At trial, the Sheriff rejected the appellant’s claim that the statutory defence had been made out. That defence requires an accused to be acquitted if it is shown that the threatening or abusive behaviour was reasonable.
The Appeal Court rejected the appeal. It was significant that the use of the chatline was not entirely private. The calls were recorded and monitored. Users of the chatline received recorded messages advising of this. The appellant ought to have been aware that his comments were not private. In any event, there was nothing in the comments made by the appellant which could give rise to the conclusion that his behaviour was reasonable.
Although the trial and resultant appeal focussed upon whether the comments were made in private, that sidesteps the real issue. Even if the appellant established that his behaviour was only intended for other using the chatroom, could it ever have been described as reasonable? Consider: –
- That the comments were clearly intended for transmission to others;
- That the comments were regarded as “illicit” by the chatroom host company, and users were advised that the chatroom rules prohibited users from discussing matters such as child abuse¹; and
- The promotion of child abuse could not, in any way, be regarded as reasonable.
The answer to that question must be “No.”