Cobban and another (Appellants) v Director of Public Prosecutions (Respondent)

Case summary

Case ID

UKSC/2024/1002

Parties

Appellant(s)

Joel Borders & Jonathan Cobban

Respondent(s)

Director of Public Prosecutions

Issue

(1) On a proper construction of section 127(1)(a) of the Communications Act 2003, does private consensual messaging fall within the scope of the offence which the section contains? (2) If private consensual messaging does fall within the scope of section 127(1)(a), are convictions for the appellants’ offences compliant with Articles 8 and 10 of the ECHR?

Facts

The appellants were each formally police constables serving within the Metropolitan Police Service (“MPS”). They were members of a private WhatsApp group consisting of seven MPS officers, including Wayne Couzens. It is not in issue that between April 2019 and August 2019, the appellants were involved in sending variously racist, misogynistic, sexist, homophobic, and disablist WhatsApp messages within the group. No member of the WhatsApp group challenged the appellants nor did they express concern about the content of the messages they received. The messages were discovered after the inspection of Mr Couzens’ mobile phone, following his separate arrest and subsequent conviction for the kidnapping, rape, and murder of Sarah Everard in June 2021. On 9 December 2022, an MPS misconduct panel dismissed the remaining members and placed all officers on the police barring list. The appellants were each subsequently convicted of multiple offences of improper use of a public electronic communications network contrary to section 127 of the Communications Act 2003. The appellants each resigned from the MPS following their conviction. They appealed their conviction to the Divisional Court. In refusing the appeals, the Divisional Court certified the above issues as points of law of general public importance and one which ought to be considered by the Supreme Court. The appellants now apply for permission to appeal to the Supreme Court.

Date of issue

4 November 2024

Case origin

PTA

Appeal

Justices

Lord Reed

Lord Sales

Lady Simler

Permission to Appeal

Permission to Appeal decision date

27 January 2025

Permission to Appeal decision

Refused

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