Provincial and Criminal Offences
In the conclusion to a paper discussing law reform and text-based online violence against women (OVAW), Barker and Jurasz (2021) asserted that ‘the law itself cannot (and should not) be charged with tackling the phenomenon’ (261). The following is a critical discussion of this statement. The paper begins with a review of the government’s current legislative approach to OVAW. It then reviews the limited case law available. The discussion proceeds to cite relevant recommendations, and closes with remarks on efforts in Scotland to expand the law to address the phenomenon.
The pervasiveness and severity of OVAW, narrowly defined to recognised offenses, are beyond doubt. In a survey conducted in the UK, one in five women reported having experienced online abuse or harassment, nearly half of which containing sexist or misogynistic language and 27% threatening sexual or physical assault (Amnesty International UK 2017). The survey results were cited in the Consultation Outcome of the Online Harms White Paper (OHWP 2020). In its response to the consultation, the government acknowledged that online intimidation and abuse can stop ‘talented individuals, particularly women and those from minority backgrounds, from standing for public office, or undertaking high profile roles such as journalism’ (OHWP Cm 354). In the current Draft Online Safety Bill (CP 405), online service providers would have a duty of care regarding content that is harmful to adults. In section 46, harmful content is defined as follows:
Content is within this subsection if the provider of the service has reasonable grounds to believe that the nature of the content is such that there is a material risk of the content having, or indirectly having, a significant adverse physical or psychological impact on an adult of ordinary sensibilities (“A”). (3)
If the content affects people with a certain characteristic, the provider is to assume that A possesses said characteristic (s46(4)). The government may also define harmful content under section 47. The Bill has attracted criticism. Harbinja (2021) observed that the notion of indirect harm is ambiguous and that the ‘adult of ordinary sensibilities’ standard is vague. Why this standard should be used in assessing risk instead of the ‘reasonable person’ standard is uncertain. However, the drafters may have intended to create opportunities for activist or pro-feminist judges to take judicial notice (Hunter, McGlynn and Rackley 2010) of the harms resulting from OVAW.
Returning to the assertion made by Barker and Jurasz (2021) that the law cannot (and should not) tackle OVAW, what is meant by ‘the law’ is somewhat unclear. However, the authors previously (2018) posited that criminal law has a significant role to play and that legislation targeting misogynistic online abuse should be created. In criminal proceedings, courts in England and Wales rely on section 127 of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988. Barker and Jurasz (2021) identified three lower court rulings, though these have not been referenced by a higher court. In R v Nimmo and Sorley (2014, unreported), the defendants posted extremely threatening tweets, and the magistrate noted the ‘serious harm’ (6) caused to the victims. In R v Viscount St Davids (2017, unreported), the victim was subjected to ‘racist, sexist, and misogynistic abuse’ on social media (Barker and Jurasz 2021 252). One or more threats to kill (ibid 254) were made in R v Nunn (2014, unreported)
Further review of the case law suggests that decisions involving published online communications are uncommon. Typically, in cases involving the two statutes, messages have been sent directly by text or email. Three exceptions are notable. Chambers v DPP ( 1 WLR 1833) involved a tweet in which the defendant threatened to blow up an airport. In DPP v Kingsley Anthony Smith ( EWHC 359 (Admin)), the defendant posted extremist (religious) messages to his Google+ page. Finally, Chabloz v Crown Prosecution Service ( EWHC 3094 (Admin)) involved blog hyperlinks to hateful (racist) YouTube videos. It is unsurprising that cases involving OVAW are rarely reported. For a seminal paper, Lewis, Rowe and Wiper (2017) conducted an in-depth study of the experiences of women engaging in pro-feminist discourse online. The study included a survey with 226 valid responses. In all, 44 of the respondents had contacted police regarding abuse. Only seven reported satisfaction with the police response, for a rate of 16%. In contrast, the overall satisfaction rate for police responses in England in Wales was 84% in 2014 (ibid). In interviews, participants stated that police were indifferent to online abuse or that officers were ‘uncertain about the legal and organizational capacity to respond’. (The authors concluded that ‘online abuse is most usefully conceived as a form of abuse or violence against women and girls, rather than as a form of communication’.)
Arguably, then, the law can (and should) tackle OVAW, if OVAW is narrowly defined. However, police, prosecutors, and courts must make greater efforts to recognise it and the harms it causes. Worldwide, 85% of women have reported witnessing online violence against other women (The Economist 2020). The European Institute for Gender Equality (2017) argued that police discount and minimise the harms of online violence against women and girls (VAWG), and construct the experiences of victims as ‘incidents’ rather than patterns of behaviour. The Institute recommended that training on online VAWG with a gender perspective be introduced for police responses. Glitch UK and End Violence Against Women Coalition (2020) also argued that law enforcement officials should ‘receive updated training and appropriate resourcing to handle cases of online violence’ (10). Eckert (2018) argued that law, police, social media, and society ‘do not yet fully acknowledge the seriousness and frequency with which women are targets of online abuse’ (1297). Substantial commitments of resources will be necessary to achieve this end.
If OVAW is defined more broadly to include expressions of or the promotion of misogyny, then statutory intervention will likely be necessary. This was among the aims of Recommendation 13 of the Independent Review of Hate Crime Legislation in Scotland: Final Report (Justice Directorate 2018): ‘Stirring up of hatred offences should be introduced in respect of each of the protected characteristics including any new protected characteristics.’ The Report recommended that gender be recognised as a protected characteristic with regard to hate crime (Chapter 4.1). Additionally, as making the demonstration of misogyny a recognised aggravating factor would likely accelerate positive change, the language of Recommendation 9 was as follows:
Where an offence is committed, and it is proved that the offence was motivated by hostility based on gender, or the offender demonstrates hostility towards the victim based on gender during, or immediately before or after, the commission of the offence, it would be recorded as aggravated by gender hostility. The court would be required to state that fact on conviction and take it into account when sentencing.
The changes would ‘form part of an effective system to prosecute online hate crime and hate speech’ (ibid, Executive Summary). The recommendations were not included in the final version of the Hate Crime and Public Order (Scotland) Bill (67B). However, the Misogyny and Criminal Justice in Scotland Working Group (MCJSWG) was established to consider them; the working group is to report by February 2022 (MCJSWG 2021). The battle for statutory change continues (Brooks 2018).
Amnesty International UK (2017) is the most reliable secondary source used for the essay. The data are clearly presented, with expert commentary interspersed with the figures. The content is organised with appropriate headings. It is directly relevant. It quantifies the extent of OVAW, the psychological impact of online abuse, and satisfaction with responses the reporting of abuse. The source is objective. Data (survey results, interview transcripts, expert opinion) are presented without author comment. The author’s opinion is stated only in the discussion/conclusion. That said, Amnesty International is an advocacy organisation.
The methodology appears sound. A data weighting technique was used to ensure that samples were representative. The survey was conducted by Ipsos MORI, which has an established reputation. Although the description of the methods was rather brief, the article was intended for a general audience. Nonetheless, an appendix providing additional information and perhaps supplementary tables would have been welcome. Expert opinion was provided by Laura Bates, founder of the Everyday Sexism Project. The discussion was also informed by Women’s Aid. Finally, the article is relatively timely, given the paucity of research in the area. The survey was conducted in 2017. The Economist’s report is more recent but is less in-depth.
Two issues may be concerning. First, Amnesty International is known for its field work. Its research is generally qualitative (and of high quality) rather than quantitative. However, the organisation is relatively well-funded, and it has numerous people volunteering to assist. The second issue is related to respondent satisfaction with responses to their reporting of abuse. Respondents were most satisfied (~33%) with the response of police. The finding is directly opposite that reported by Lewis et al. In their study, respondents were least satisfied with the police response. Their survey was conducted only two years earlier. Additional research may be warranted.
Amnesty International UK ‘Online abuse of women widespread in UK’ (2017) https://www.amnesty.org.uk/online-abuse-women-widespread
Barker K and Jurasz O ‘Online Violence Against Women: The Limits & Possibilities of Law’ (2018) Stirling Law School and Open University Law School
Barker K and Jurasz O ‘Text-Based (Sexual) Abuse and Online Violence Against Women: Toward Law Reform?’ in The Emerald International Handbook of Technology Facilitated Violence and Abuse (Emerald Publishing Limited 2021)
Brooks L ‘Scotland Declines to Introduce Misogynistic Harassment Law’ (2018). The Guardian https://www.theguardian.com/society/2018/may/31/scotland-declines-to-introduce-law-for-misogynistic-harassment
Eckert S ‘Fighting for Recognition: Online Abuse of Women Bloggers in Germany, Switzerland, the United Kingdom, and the United States’ (2018) New Media & Society 20(4)
European Institute for Gender Equality ‘Cyber Violence Against Women and Girls’ (2017) https://www.stoponlineviolence.eu/wp-content/uploads/2020/08/EIGEcyber_violence_against_women_and_girls.pdf
Glitch UK & End Violence Against Women Coalition ‘The Ripple Effect: COVID-19 and the Epidemic of Online Abuse’ (2020) https://www.endviolenceagainstwomen.org.uk/wp-content/uploads/Glitch-and-EVAW-The-Ripple-Effect-Online-abuse-during-COVID-19-Sept-2020.pdf
Harbinja, E ‘U.K.’s Online Safety Bill: Not That Safe, After All?’ (2021) The Lawfare Institute https://www.lawfareblog.com/uks-online-safety-bill-not-safe-after-all
Hunter R, McGlynn C & Rackley E ‘Feminist Judgments: An Introduction’ in R Hunter, C McGlynn and E Rackley (eds) Feminist Judgments: From Theory to Practice (Hart Publishing 2010)
Lewis R, Rowe M, Wiper C ‘Online Abuse of Feminists as an Emerging Form of Violence Against Women and Girls’ (2017) British Journal of Criminology 57(6)
The Economist Intelligence Unit ‘Measuring the Prevalence of Online Violence Against Women’ (2020) The Economist https://onlineviolencewomen.eiu.com/
Chabloz v Crown Prosecution Service  EWHC 3094 (Admin)
Chambers v DPP  1 WLR 1833
DPP v Kingsley Anthony Smith  EWHC 359 (Admin)
R v Nimmo and Sorley (24 January 2014) Westminster Magistrates’ Court https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Judgments/r-v-nimmo-and-sorley.pdf
R v Nunn (29 September 2014) City of London Magistrates’ Court
R v Viscount St Davids (11 July 2017) Westminster Magistrates’ Court
Draft Online Safety Bill (CP 405) ISBN 978-1-5286-2563-0 from https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/985033/Draft_Online_Safety_Bill_Bookmarked.pdf
Communications Act 2003 c 21
Hate Crime and Public Order (Scotland) Bill SP Bill 67B https://www.parliament.scot/-/media/files/legislation/bills/current-bills/hate-crime-and-public-order-scotland-bill/stage-3/bill-as-amended-at-stage-3.pdf
Malicious Communications Act 1988 c 37
Justice Directorate (Scottish Government), Independent Review of Hate Crime Legislation in Scotland: Final Report (31 May 2018) https://www.gov.scot/publications/independent-review-hate-crime-legislation-scotland-final-report/
Scottish Government, ‘Misogyny and Criminal Justice in Scotland Working Group: Remit’ (30 July 2021) https://www.gov.scot/publications/misogyny-and-criminal-justice-in-scotland-working-group-remit/
Secretary of State for Digital, Culture, Media and Sport and Secretary of State for the Home Department, ‘Online Harms White Paper Consultation Outcome’ (15 December 2020) https://www.gov.uk/government/consultations/online-harms-white-paper/online-harms-white-paper
Secretary of State for Digital, Culture, Media and Sport and Secretary of State for the Home Department, Online Harms White Paper (Cm 354). https://www.gov.uk/government/consultations/online-harms-white-paper/outcome/online-harms-white-paper-full-government-response
It's unlikely. In R v LS (2021 ONSC 4429), the defence was looking forward to cross-examining a witness. The Crown changed its mind about calling her. The resourceful defence, relying on R v Finta (1994 SCC 129), asked the Court to call the witness.
The Court decided the circumstances were "very far removed" from those of Finta:
In our case, it is not at all necessary for this Court to call A.C. as a witness at trial. The defence is perfectly capable of doing so. In fact, the defence has the fortunate assurance of knowing that A.C. cannot easily resile from the evidence that the defence wants to elicit at trial because I am told that the said evidence is contained, expressly, in the statement that she gave to the police. Hence, the full toolkit will be available to Mr. Edgar, experienced defence counsel, including sections 9(1) and 9(2) of the Canada Evidence Act, RSC 1985, c C-5, as amended, if necessary. (23)
I admit, the title is a bit of an exaggeration. Detainees have the right to counsel, and police have a positive duty to implement this right. However, the detainee also has duties. In R. v. Sivalingam, 2019 ONCJ 239, Schwarzl, J. provided a good overview of the principles involved. The decision has been cited dozens of times throughout Canada though not, as of June 2021, by a higher court.
[40.] First, where the police assist the detainee or control the means of exercising his rights to counsel, the police must be reasonably diligent, which is the same standard to which the detainee is held if he was implementing his rights on his own: R. v. Wilding, 2007 ONCA 853 (CanLII),  O.J. No. 4776 (C.A.); R. v. Vernon, 2015 ONSC 3943 (CanLII),  O.J. No. 4157 (S.C.J.), leave to appeal refused 2016 ONCA 211; R. v. O’Shea,  O.J. No. 1178 (S.C.J.).
[41.] Second, while police must be reasonably diligent in assisting the detainee in exercising his rights to counsel, they are not required to exhaust all reasonable means for the detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288 (CanLII),  O.J. No. 952 (S.C.J.) ¶ 46 – 67; R. v. Sharma,  O.J. No. 2991 (S.C.J.).
[42.] Third, having consideration for the circumstances of each case, the test is not whether the police could or should have done more, but rather whether the police provided the detainee with the necessary information and assistance to allow him to exercise his rights: R. v. Gentile,  O.J. No. 3664 (S.C.J.) at ¶ 24; R. v. Blackett,  O.J. No. 2999 (S.C.J.) at ¶ 23 – 24, and 29; R. v. Antoninas, 2014 ONSC 4220 (CanLII),  O.J. No. 5226 (S.C.J.) at ¶ 93; and R. v. Vernon, supra.
[43.] Fourth, the detainee is required to be reasonably diligent in the pursuit of his rights: R. v. Leclair and Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at p. 135; R. v. Littleford, 2001 CanLII 8559 (ON CA),  O.J. No. 2437 (C.A.); R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Clarke, 2005 CanLII 15452 (ON CA),  O.J. No. 1825 (C.A.) at ¶ 31-33; R. v. Van Binnendyk,  O.J. No. 2899 (C.A.).
[44.] Fifth, where a detainee wants to call a specific lawyer or a third party to access counsel, he has a duty to tell the police who he wants to call and why: R. v. Williams,  O.J. No. 2559 (C.A.) at ¶ 39; R. v. Johnston (2004), 2004 BCCA 148 (CanLII), 183 C.C.C. (3d) 157 (B.C.C.A.); R. v. Antoninas, 2014 ONSC 4220 (CanLII),  O.J. No. 5226 (S.C.J.); R. v. Cheema, 2018 ONSC 229 (CanLII),  O.J. No. 121 (S.C.J.) at ¶ 31; R. v. Mumtaz,  O.J. No. 229 (S.C.J.) at ¶ 25 – 28.
[45.] Sixth, unless the detainee expresses to the police dissatisfaction with the legal advice received, he is not entitled to Charter relief: R. v. Neziol,  O.J. No. 4372 (S.C.J.); R. v. Kumarasamy,  O.J. No. 303 (S.C.J.); R. v. Cairns, 2004 CanLII 17588 (ON CA),  O.J. No. 210 (C.A.); R. v. Burley (2004), 2004 CanLII 9437 (ON CA), 181 C.C.C. (3d) 463 (Ont. C.A.); R. v. Clarke, supra at ¶ 31- 33; R. v. Traicheff,  O.J. No. 4361 (S.C.J.), aff’d  O.J. No. 5355 (C.A.); R. v. Shoker,  O.J. No. 4563 (S.C.J).
On the facts, the court found that the Defendant had not demonstrated that it was more likely than not that the police breached his right to counsel.
As cross-examiner, you can (and should) be vigorous and thorough. It is not "abusive" to challenge a witness on unpleasant things, for example, their biases or their criminal record, as long as your question is asked in good faith and is not intended to mislead the witness. But there are limits.
There are three types of provincial offences: mens rea, strict liability and absolute liability. The type of offence has consequences for both the prosecutor and the defendant. A two-step analysis may be used to identify the type of offence.