Sending “jokey” messages to a closed group of people who will not be offended by them is lawful, the High Court has heard in the appeal of two former police officers who shared “grossly offensive” messages in a WhatsApp group with Wayne Couzens.
Former Pcs Jonathon Cobban and Joel Borders were each given a three-month jail sentence for sending grossly offensive messages on a public communications network.
Westminster Magistrates’ Court heard in November 2022 that the men joked about raping a female colleague, talked about tasering children and people with disabilities, and displayed racist views in the group chat called “Bottle and Stoppers” which included Couzens.
The messages were discovered after Couzens’ devices were searched after his arrest for the kidnap, rape and murder of 33-year-old marketing executive Sarah Everard in March 2020.
At the High Court on Wednesday, lawyers for Cobban and Borders – who were granted bail after their sentencing – brought an appeal against their convictions which was opposed by the Director of Public Prosecutions (DPP).
Nicholas Yeo, for the two men, told judges that the offence they were convicted of “does not extend to private consensual messaging” and is instead aimed at messages “that would not be welcomed by the addressee”.
He said: “If one looks at the word indecent, it would be absurd to conclude that it applies to wanted indecent messages.”
The barrister added: “Messages between partners to the extent that it was indecent would be an offence … The entirety of internet pornography would be an offence.”
Mr Yeo continued in written submissions: “It is lawful to send jokey, bombastic and iconoclastic messages to a closed group of people who will not be grossly offended thereby.”
He later told the hearing that the “necessity” of regulating public or targeted statements is different from private, consensual messages.
Jocelyn Ledward KC, for the DPP, said there were no errors of law in the previous judge’s decision-making and that the men’s argument over the law is “fundamentally misconceived”.
She said in written submissions: “The provision is not exclusively concerned with protecting people from receipt of unsolicited messages of the proscribed character, but is rather aimed at ensuring propriety in communications over electronic public networks.”
The court was told that in one exchange, Borders wrote: “I can’t wait to get on guns so I can shoot some c*** in the face!”
In another, Cobban joked about sexually abusing domestic violence survivors whom he said “love it… that’s why they are repeat victims more often than not”.
Ms Ledward said the messages “unambiguously denigrated, belittled, maligned and marginalised certain sections of society”.
She continued: “The appellants self-evidently did intend their ‘jokes’ to be grossly offensive to those to whom they related, ie female victims of serious sexual offences, victims of domestic abuse, people with Down syndrome, ethnic minorities, and gay people.
“Indeed, it was the very fact that the jokes targeted such vulnerable members of society that, in the appellants’ view, rendered them ‘darkly humorous’.”
Both men were given dismissal notices following an Independent Office for Police Conduct investigation and added to the College of Policing barred list.
The hearing before the Lady Chief Justice Baroness Carr and Mr Justice Saini is due to conclude on Wednesday with a decision expected at a later date.
