Jurisdiction(s):
United Kingdom

CA 2003 s 127 and private WhatsApp: Divisional Court on grossly offensive messages, Articles 8 and 10 proportionality, and limited privacy for police officers (England and Wales)

Published on: 04 September 2024

Published by a LexisNexis Corporate Crime expert

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Article summary

Cobban and another v Director of Public Prosecutions [2024] EWHC 1908 (Admin)

What are the practical implications of this case?

A clear separation is drawn between holders of public office (police officers exchanging messages about policing matters) and private individuals who might be prosecuted under section 127(1) of the Communications Act 2003 on the basis of consensual private communications’ content
Where Convention rights are engaged, a proportionality assessment is required, in line with the approach in Casserly [2024] EWCA Crim 25; 1 Cr App 18

The appellants maintained that, unless R v Collins [2006] UKHL 40; [2007] 1 WLR (HL) is restricted to its own facts, the law would capture consensual sharing of indecent material between private persons. Lord Brown had highlighted this concern at [27] in Collins, leaving it open. The higher court sided with the DPP: officers who, contrary to professional standards, traded abhorrent private messages about their policing duties could not plausibly assert a reasonable expectation of privacy. The court therefore marked a firm boundary between such officers and private individuals, as confirmed at [110]...

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