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Jo C.
Jo C., Barrister
Category: UK Law
Satisfied Customers: 69362
Experience:  Over 5 years in practice.
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I have been charged with sending an offensive message to my

Customer Question

HI , I have been charged with sending an offensive message to my first cousin under section 127(1)(B) and (3) of the COMMS ACT 2003.
I did so after severe provocation. He sent the first message and my replies were "intended" to only wind him up. The CPS deemed that they were racially offensive. Is/are there any reasonable defences ?
Submitted: 4 months ago.
Category: UK Law
Customer: replied 4 months ago.
The provocation was instigated by him and he has a history of same. He also was offensive in his messages in terms of my sexuality which I have been struggling for for many years. What possible defence arguments could be used ?
Customer: replied 4 months ago.
My court hearing is on 2/8/17.
Expert:  Jo C. replied 4 months ago.

Sorry for the delay.

How can I help with this please?

Customer: replied 4 months ago.
what are my possible areas of defense ? Is extreme provocation instigated by the other party and which is highly offensive a viable defense ?p.s. I am now going to be unavailable for several hours so may we pick this up later ?
Expert:  Jo C. replied 4 months ago.

You need to be careful with this. The first problem I can see immediately is that receiving an unpleasant message is nothing even remotely like severe provocation. It is just annoying. Severe provocation would be something like the murder of your child.

Expert:  Jo C. replied 4 months ago.

Things like that are always better if they are understated.

If he has been sending objectionable messages as well then you would probably be able to argue that it is six of one and half a dozen of the other but that is not severe provocation.

Expert:  Jo C. replied 4 months ago.

In any event, provocation is not a defence.

Reasonable excuse is not even a statutory defence.

Expert:  Jo C. replied 4 months ago.

The only defences are that you either did not send it or that the message is not obscene, menacing or indecent.

In fairness, those words are almost as strong as 'extreme provocation' and the Crown do have a tendency to try to apply them to messages that are only mildly annoying as well so there is always a challenge in that.

Expert:  Jo C. replied 4 months ago.

However, this is a summary only offence so can only be tried by Magistrates and they do not have the best reputation for being fair to the defence.

Can I clarify anything for you?

Jo

Customer: replied 4 months ago.
Thank you for the above Jo. If I were to be able to show that he started the whole process by sending obscene messages relating to my sexuality which in turn would be deemed offensive under the malicious comms statute and this is what caused my response for which I was being prosecuted, can I argue that there would have been no breach of law by me had he not started the whole thing ?
Further, his messages caused me tremendous pain as for many many years I have been struggling with my sexuality and trying to keep it hidden due to being married, with children and cultural stigma within Asian community.
Let me have your opionion please
Expert:  Jo C. replied 4 months ago.

No, not really.

There is no defence in saying that he started the whole thing.

I'm really sorry but all this would do is establish that he was no better than you which, in truth, is pretty commonly the case with the criminal law. Victims do tend to be just next week's defendant.

Most of these malicious communication offences are a load of twaddle.

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