On 8th August 2024, a “55-year-old woman from near Chester”, was arrested. As the police knew full well would happen and owing to a series of media stories that had preceded the arrest, she was easily and immediately identified as successful businesswoman and X/Twitter user, Bernie Spofforth.
Bernie’s arrest made headlines around the globe. Cheshire Police went public announcing that she had “made a social media post containing inaccurate information about the identity of the attacker in the Southport murders” and Chief Superintendent Alison Ross warned:
“We have all seen the violent disorder that has taken place across the UK over the past week. It’s a stark reminder of the dangers of posting information on social media platforms without checking the accuracy.”
That was the police and online story. In real life, with Bernie known to be in a state of distress already suffering the media attacks and destruction of her reputation, 5 officers, three polices cars and a van with a prisoner cage were dispatched to arrest her at home, choosing early evening to do so. She was deprived of sleep, held for 36 hours, had her phone and computer confiscated, and was then released on bail without charge but on condition not to use social media.
A month later, the police quietly released Bernie from bail, advising they were taking “No Further Action.”
Arrest for a post on X
Based only on the above message posted on 29 July 2024, and an allegation, posted on X by a self-appointed ‘misinformation expert’, that Bernie was the first person to post the name and information in her post, the police alleged reasonable suspicion of offences contrary to:
Was that suspicion reasonable? Or were the police overreaching?
Public Order Act 1986, section 19 – publishing written material to stir up racial hatred
Looking at the message, a name “Ali-Al-Shakati” might suggest Arabic origin and might fairly lead suspicious police officers to consider the s19 offence of stirring up racial hatred. However, they did so without thought since, for one simple reason, it could never withstand the most basic scrutiny: s19(1) requires the material to be “threatening, abusive or insulting”:
19 Publishing or distributing written material
(1) A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if—
(a) he intends thereby to stir up racial hatred, or
(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.
Nothing in the message could reasonably be described as threatening, abusive or insulting. Accordingly, the police could never have had a reasonable suspicion of this offence having been committed.
Online Safety Act 2023, section 179 – false communications with intent to cause harm
Section 179 is a new free speech offence. It criminalises sending false communications with the intent to cause harm.
It begins:
179 False communications offence
(1) A person commits an offence if—
(a) the person sends a message (see section 182),
(b) the message conveys information that the person knows to be false,
(c) at the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience, and
(d) the person has no reasonable excuse for sending the message.
(2) For the purposes of this offence an individual is a “likely audience” of a message if, at the time the message is sent, it is reasonably foreseeable that the individual—
(a) would encounter the message, or
(b) in the online context, would encounter a subsequent message forwarding or sharing the content of the message.
(3) In a case where several or many individuals are a likely audience, it is not necessary for the purposes of subsection (1)(c) that the person intended to cause harm to any one of them in particular (or to all of them).
On careful reading and even before considering the defence of reasonable excuse, for an offence to be established, several elements must all be satisfied:
- The message must convey false information. (While not explicit, this is implied by the next element.)
- The sender must know the information is false.
- The sender must intend to cause non-trivial harm to identifiable individuals and caused by their encountering the message.
- Knowing information is false
A practical point arises from the first element identified: anyone being questioned in relation to s179 should require the police to identify exactly what information they say is false. It is possible that information believed by the police and accused to be false is later proved to be true.
On the second element, the phrase starting Bernie’s message, “If this is true”, introduced a major hurdle for the police. S179(1)(b) necessitates that the sender knows the information is false at the time of sending. “If this is true” clearly signalled an uncertainty that is at odds with any suggestion Bernie knew the allegations to be false.
If the police suspected this phrase was being used deceitfully as cover for an outright lie, rather than, as Bernie had told the police, that she had seen the information reported elsewhere, what was the basis for their suspicion? It could have been reliance on the misinformation from the self-proclaimed ‘misinformation expert’ that Bernie was the first person to post the name of the suspect. However, before her arrest, Bernie had provided the police with evidence that this ‘expert’ admitted he did not know his allegation was correct and she provided evidence of prior internet postings.
In any event, ‘knowledge’ of a falsehood was far from the only difficulty for the police.
- Intent to Cause Harm to identifiable individuals
No one with the name ‘‘Ali-Al-Shakati” was identified anywhere in the world. It was, as the police knew, a fake name.
Who was the ‘likely audience’ of identifiable individuals to whom the police suspected Bernie intended harm? Here, three ‘sub-elements’ of the offence must be addressed:
- s179(1)(c) requires this to be a likely audience e. by subsection (2), individuals who would encounter the message.
- The harm intended is not that of encountering a fist in the face, or a brick from a rioter or other violence, but by s179(2) is that to be caused by ‘encountering a message’.
- By implication of s179(2)(b) and (3), which would otherwise be largely otiose, those individuals must be identifiable.
Two key observations must follow:
- The individuals to who harm is intended cannot be a race en masse e.g. ‘muslims’ or ‘black’ people (though they could be an identifiable group of individuals associated by race, for example, attendees at a particular church or mosque).
- Since there is no other way to ‘encounter a message’, s179 was only aimed at the harm suffered from reading or being read a message. It was never aimed at or relevant to actions from third parties, whether rioting or anything else.
Accordingly, the police were completely off base in imagining s179 was about causing riots and could never have had a reasonable suspicion of this offence either.
The danger of police misinformation
Bernie Spofforth has paid an extraordinarily higher price than embarrassment for having to withdraw within a couple of hours the posting of information she had read after learning it was inaccurate. Her life has, at least temporarily, been destroyed by the desire of police, politicians and media to find a Public Enemy Number One to blame for the social unrest that followed the Southport murders, and to portray social media without control as a danger to society.
What has been shown is the danger of a government spewing misinformation and threats about the effect and reach of the law, just as happened with covid. We have police officers who do not understand the law, who are continually overreaching and who are perceived as policing for the politicians.
It is misinformation from the police, politicians and media that should be under the greatest scrutiny and which presents the greatest threat. As Cheshire Police tweeted about Bernie’s arrest: “It’s a stark reminder of the dangers of posting information on social media platforms without checking the accuracy. It also acts as a warning that we are all accountable for our actions, whether that be online or in person.” Quite right.
We can now expect Bernie to be considering legal action against Cheshire Police for false arrest and, along with several mainstream media publications and a myriad of individuals social media, very large damage claims for the defamation and the non-trivial psychological and physical harm she has suffered.