Joe Kelly - criminalised for a tweet

by Free Speech Union

Joe Kelly - criminalised for a tweet

by Free Speech Union
Free Speech Union
Case Owner
The Free Speech Union is a non-partisan, mass membership public interest body that stands up for the speech rights of its members and campaigns for free speech more widely.
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Free Speech Union
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The Free Speech Union is a non-partisan, mass membership public interest body that stands up for the speech rights of its members and campaigns for free speech more widely.
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Joe Kelly was convicted and sentenced in Scotland for posting a “grossly offensive” tweet. Having had his appealed denied by the Scottish Courts and having been labelled an “example case” to deter others from “pressing the blue button” and posting allegedly offensive content, he is now seeking to take his case to the European Court of Human Rights in Strasbourg.

This case goes beyond obtaining justice for Joe, it is about challenging the arbitrary use of power to interfere with lawful free speech and halting the development of blasphemy law by another name.

Please donate to support this critical Scottish legal case and share with others who may wish to support.

Who is Joe Kelly?

Joe was a labourer on building sites until he was forced to stop working because of the death threats he was receiving as a result of his tweet regarding Sir Captain Tom Moore. He is currently on Personal Independence Payment.

Joe enjoys playing pool and going to football games.

What happened to Joe Kelly?

Joe Kelly was convicted for contravening the Communications Act 2003, section 127(1)(b), which makes it a criminal offence to make an electronic post which is “grossly offensive”, for a tweet he posted relating to the death of Sir Captain Tom Moore.  

Joe was at home on February 3, 2021, when he tweeted “the only good Brit soldier is a deed [i.e. dead] one, burn auld fella buuuuurn” along with a picture of Captain Tom. The tweet was only visible to his handful of followers for 20 minutes before he began to receive threats directed against him and his family and deleted it.

However, it was not soon enough: someone had already reported Joe to the police for his tweet. So began a long and distressing legal process. Scotland’s prosecution service decided to prosecute Joe and despite his counsel’s best attempts to defend his lawful right to free speech (which includes, as Lord Sedley stated, the “heretical, unwelcome and provocative”) he was convicted and sentenced to a community payback order.

The Sheriff, who made the decision to convict and sentence, said the punishment for Joe’s tweet should act as a deterrence to others, so that they will think twice before “pressing the blue button”. He said Joe was a “good example” for people to realise how quickly things can get out of control even if one doesn’t have many followers.

What is Joe Kelly’s legal case?

Scotland’s Sheriff Appeal Court refused to hear Joe’s appeal because of a 2012 Scottish court decision that “wilfully abusive remarks made for no purpose other than to cause offence” are not protected by the lawful right to free speech.  Scots law does not allow an appeal against that decision to either the High Court of Justiciary or the UK Supreme Court.

Having exhausted domestic remedies Joe is now looking to challenge the case at the European level, at the European Court of Human Rights in Strasbourg. Joe’s counsel (Fred Mackintosh KC and Cameron Smith) will make the argument that a statement like that made by Joe by means of a public telecommunications system should not need to have artistic or political meaning for it be protected by the right to free speech laid down in the Convention.  If applied in the way that the Sheriff did in Joe’s case the term “grossly offensive” is far too vague, and will have a chilling effect. A person’s right to freedom of speech should not be subject to interference on this basis.

This is not a radical idea – in fact, the Law Commission of England and Wales have already called for reform of section 127 of the Communications Act 2003  and the UK government has already proposed repeal the criminalisation of “grossly offensive” use of public communication systems in England and Wales as a result.

Why should you support his case?

Joe Kelly’s case is alarming. He didn’t harm anyone or engage in hate speech. He didn’t damage any live person’s reputation. Who hasn’t said something offensive, distasteful, thoughtless or controversial at the pub? Should Joe be landed with a criminal record and punished just because his expression was online and related to someone society has decided to venerate?

The strength of free speech, the foundation of liberal democratic societies, is measured exactly by how tolerant we are of speech that we find reprehensible and offensive. Now more than ever we should resist the urge of the State to criminalise expressions of dissent which relate to society’s “sacred cows” (e.g. members of the Royal family); we cannot allow the development of blasphemy laws by another name. This is not progress but regression.

This case goes beyond individual justice for Joe Kelly. It is about ensuring this “deterrence” (i.e. “chilling effect”) on free expression does not materialise. And it is about ensuring Scotland is not left behind as the only country within the UK which maintains a legal concept (“grossly offensive”) in the regulation of messages sent on public communication systems which is, ironically, in absolute antithesis to the Enlightenment values that Scotland brought to the world.

What is Joe’s crowdfunding for? 

Any donations made to Joe’s crowdfunder are to fund the legal expenses associated with preparation of an application to the European Court of Human Rights.

If permission to hear the case at the European level is granted, it is hoped that subsequent steps forward will be funded by the Court’s own system of legal aid.

Thank you for your support.

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