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KATE MEEK
DISTRICT JUDGE (MAGISTRATES' COURTS)
SOUTH TYNESIDE MAGISTRATES’ COURT

(Ms Rachel Masters)

v

Mr Leonard Lowther
(Mr Simon Myerson QC)

JUDGMENT
___________________________________________________________________________

CONTENTS PAGE

A. INTRODUCTION 2
B. AGREED FACTS AND CHRONOLOGY 3
C. BASIS OF PROSEUCTION 5
D. THE LAW 6
E. THE EVIDENCE 10
F. COURSE OF CONDUCT 15
G. HARASSMENT 19
Ms Elliott MP’s role and relationship of relevance between 19
Ms Elliott MP and Mr Lowther
Impact on Ms Elliott MP, motivation of Mr Lowther 21
Form of communication 27
The actions of others 29
Content and nature of communications 30
H. EUROPEAN CONVENTION ART 10 RIGHT TO FREEDOM OF EXPRESSION 36
I. CONCLUSIONS AND DECISION 38
Findings 39
The charge 39
Harassment 39
European Convention Article 10 right to freedom of expression 41
Decision 41
 A. INTRODUCTION

1. The Defendant in this case is Leonard Lowther. He is represented by Mr Simon Myerson QC

instructed by Cohen Cramer Solicitors and the Crown by Crown Advocate Ms Rachel Masters. The
complainant is Julie Elliott MP.

2. Mr Lowther is charged with an offence contrary to Section 2(1) and (2) and the Protection from
Harassment Act 1997 specifically that between 16th May 2018 and 3rd October 2018 at Sunderland he
pursued a course of conduct which amounted to the harassment of Julie Elliott MP and which he
knew or ought to have known amounted to the harassment of her in that he repeatedly published a
menacing message, repeatedly contacted Ms Elliott via the Twitter social media platform, repeatedly
alleged that Ms Elliott was guilty of perverting the course of justice and repeatedly accused Ms Elliott
of conspiring with other (sic) to use Northumbria Police as a personal police force. (When originally
charged the date range was 3rd February 2018 to 3rd October 2018 but this was changed prior to any
involvement I had in the case).

3. There has been some delay in these proceedings being concluded. The case was initially transferred
to be heard at Leeds Magistrates Court. I am unclear as to the reason for this transfer. By the time
the case was returned to South Tyneside Magistrates Court neither the prosecution nor the defence
raised any objection to it being returned. Mr Lowther entered his not guilty plea at the first hearing
at Leeds Magistrates’ Court on 27th April 2019 and a trial was listed to take place during October
2019. That trial listing and subsequent ones were not effective for a variety of reasons including legal
arguments about disclosure and then, in 2020, in part due to restrictions that came into force due to
the Covid 19 pandemic. Thereafter, the case was transferred back to South Tyneside where it first
came before me on 2nd September 2020. On 13th January 2021 there was a hearing listed to deal
with legal arguments but which in essence again focussed primarily on disclosure issues – some of
which it then transpired had been dealt with earlier in the proceedings at various hearings and/or in
direct correspondence at times when Mr Lowther had been represented by a different legal team
and/or represented himself as a litigant in person. All outstanding disclosure issues were dealt with
at that hearing.

4. The trial finally took place over 16th and 17th February 2021. Given the time at which the trial
concluded on 17th February and the extent of the submissions I received, I considered it appropriate
to reserve judgment. Due to other commitments it has not been possible to deliver this decision and
judgment until today.

5. This case involves the alleged harassment of a Member of Parliament, Ms Julie Elliott. Given some of
the issues that arose in the case it may be necessary in this judgment to refer to the fact that Ms
Elliott MP represents the Labour Party as well as some of her stated political policies and beliefs. It
may also be necessary to refer to other politicians, political parties, polices, the alleged action or
inaction of some MPs and the political composition of parliamentary constituencies . This should be
clear in the judgement but, in case not, they are included only for explanatory purposes. They are not
and should not be interpreted as expressing any view about any such political party, politician or
political policy or view held.

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B. AGREED FACTS AND CHRONOLOGY

6. Much of the factual evidence of the case was agreed and so it is helpful to set it out at this stage.

6.1 Ms Julie Elliott was at all material times and remains the elected Member of Parliament
for the Sunderland Central constituency. In this role she represents the Labour Party

6.2 In or around 2017 Mr Lowther raised a complaint or complaints against Sunderland City
Council which at his request were investigated by Ms Elliott MP’s constituency office in
late 2017. The complaint referred to a number of decisions being taken by Sunderland
City Council associated with a regeneration plan in an area of Sunderland. The conclusion
of the investigation by Ms Elliott’s office was that Mr Lowther’s grievances were without
substance.

6.3 At all material times Mr Lowther used a personal Facebook account called “Len Lowther”

6.4 At all material times Mr Lowther used (and had administrative rights over) a Facebook
account called “The Problem with Sunderland is Labour” (TPWSIL).

6.5 At all material times Mr Lowther used the handle “@LenLowther27” for his personal
account on the social media platform Twitter.

6.6 At all material times Ms Elliott MP and her office used the handle “@JulieElliottMP” as a
professional account in association with her role as an MP on the social media platform
Twitter. Ms Elliott MP used this account but it was also used and monitored by others
within her office on her (professional) behalf.

6.7 Each of the Facebook groups or pages and each of the Twitter accounts referred to in
paragraphs 6.3 – 6.6 were publicly accessible pages and generally accessible to all users
of the relevant social media platform. The extent to which any other individuals not
relevant to these proceedings may have been blocked or in some other way had their
access limited or declined was not considered.

6.8 Mr Lowther accepts that between 16th May 2018 and 3rd October 2018 he was
responsible for authoring and creating the posts/comments/tweet on both Twitter and
Facebook relied on by the Crown as attributable to him and referred to in this judgment
as such.

6.9 On 5th June 2017 a complaint was made to the police about a male (IM). It was alleged
that he had made a post on a closed Facebook group page (not TPWSIL) which was of a
threatening nature about Ms Elliott MP and/or her staff (“the IM Facebook post”). A
screen shot of the alleged post was passed to the police by Ms Elliott’s office as well, I
understand, as it having been sent direct to the police. IM was subsequently charged
with an offence under s127 of the Communications Act 2003 or, as the subsequent letter
from Northumbria Police refers to, “a case of Malicious Communications” (presumably
referencing the Malicious Communications Act 1998 although in fact it does not matter
which). At court IM pleaded not guilty. He denied creating the IM Facebook post. One of
the disputed issues identified by IM in his defence was whether or not the offending
Facebook post was created by IM as it appeared in the screen shot or whether either the
Facebook post and/or the screen shot had been created or edited by another. On 22nd
February 2018 the proceedings against IM were discontinued. A letter dated 8th March
2018 sent to IM by Northumbria Police said “…I can confirm that the reason for the

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 discontinuance was a result of failing in the police investigation…”. (“the IM/police
letter”).

6.10 I have referred to the reasons why that case was discontinued elsewhere in this
judgment and particularly within the section of DS Reeves’ evidence. The explanation
provided by DS Reeves in his evidence was unchallenged by the defence.

6.11 On 6th February 2018 a male (CR) placed a post on the Facebook group page TPWSIL
using the comment “Hang the old hag” (“the CR post”). There were a number of
comments posted in response to this post on TPWSIL Facebook page including one by Mr
Lowther which read “more please”. CR was charged with an offence under s127
Communications Act 2003 in relation to his post. He pleaded not guilty. On 17th March
2018 at his trial CR was convicted of that offence. The relevant statutory provision allows
for the offence to be committed in a variety of different ways. In CR’s case the specific
determination of that court was that the post “hang the old hag” was “menacing”. It had
not been contested that the phrase had been used in relation to Ms Elliott MP. Mr
Lowther gave evidence at CR’s trial about the nature of the TPWSIL Facebook page.

6.12 On 19th May 2018 a male (AP) posted an image (“the AP image”) on Facebook of a
woman apparently being hung. The has an appearance of a historical line drawn image
eg from an encyclopaedia or illustrated history book. Next to the image AP wrote ‘Julie
Elliott’. (“the AP post”). This image and comment were placed on the Facebook page of
Mr Lowther. See item 8 of Annex A for this post. AP was interviewed by the police under
caution about this image having attended the police station as a voluntary attender on
29th June 2018.

6.13 On 19th July 2018 a male (PC) was alleged to telephone the office of Julie Elliott and
threaten violence against staff. He was subsequently prosecuted and on 7th August 2018
he pleaded guilty to an offence (or offences) under s1 Malicious Communications Act
1988.

6.14 On 20th September 2018 Mr Lowther was arrested and interviewed by the police.
When he was arrested it was not on suspicion of the offence he is now charged with but
on suspicion of other offences albeit based on the same facts giving rise to the current
charge. Following that interview he was released under investigation. He was
interviewed again on 5th March 2019. In each interview Mr Lowther provided a prepared
statement at the outset of the interview and thereafter largely and to any relevant
extent made no reply to subsequent questions.

7. In addition, it is helpful to note at this stage that prior to the time frame this charge is
concerned with, it is agreed that it had been reported in the national media on more than
one occasion that John McDonnell MP had allegedly been recorded repeating a comment of
another or others that included a reference to Esther McVey MP being “lynched”. The
reports included that he had been asked about the appropriateness of that and whether he
considered he should apologise. John McDonnell is and was at all relevant times a Labour
MP. It is not necessary for me to make any comment about the accuracy of otherwise of
those reports and I do not do so but it is agreed that it is important explanatory background
to an aspect of this case and Mr Lowther’s defence.

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 C. BASIS OF PROSECUTION

8. In advance of the trial I was provided with a trial bundle. I was also provided with a written opening
from the prosecution and had received written submissions including on the basis of the prosecution
from both Ms Masters and Mr Myerson QC at the earlier hearing on 13th January 2021. The trial
bundle contained a number of exhibited documents mostly Facebook posts and tweets and exhibited
compilation documents created by the police which consisted of combinations of those messages
and posts sometimes with commentary added. Each such compilation document had been prepared
and exhibited to demonstrate one aspect or another of the prosecution case. Some of the original
exhibited posts and messages fell outwith the relevant dates and actions specified in the charge and
as set out in the prosecution opening. During the trial I heard oral evidence. Again it appeared that
some of this evidence fell outwith the alleged actions specified in the charge and opening.

9. The basis on which the prosecution was brought and presented at trial was a matter that I sought
clarification about at the hearing on 13th January 2020 and during the course of the trial. I was
grateful for the straight forward approach taken by Ms Masters and the clarity she offered when
these requests were made but given the issues, which again became apparent after hearing the oral
evidence, I also considered it necessary to confirm the position on some points with the advocates at
the conclusion of the trial as follows:

9.1 The prosecution’s case is limited to the time frame 16th May 2018 to 3rd October 2018.

9.2 The prosecution case relies on the messages/posts within the two main exhibits - DR17
and DR19.

9.3 Other posts and messages were exhibited in the trial bundle (sent to the Court by e mail
on 15th February 2021). I was invited to consider them to the extent I consider them
relevant.

9.4 Within that trial bundle the exhibit DR/3 jumps from Item 10 to Item 25. Items 11 – 24
were not included and not relied on.

9.5 Within that trial bundle there are communications within the additional exhibited
communications from dates outwith the relevant time frame. Some pre date, some post
date the charge dates. Some others were undated.

9.6 Whilst the trial bundle was extensive there was only a small number of further
tweets/posts by Mr Lowther of relevance within the relevant timescale. A number of
individual tweets/messages were exhibited in more than one compilation document as it
was asserted they were capable of supporting different aspects of the prosecution case
and the compilation documents were arranged in that way. To the extent there were
additional messages/posts that were relevant to this case, they were generally of the
same nature and content as the messages/posts referred to within DR17 and DR19.

9.7 The prosecution case does not rely on any of the events of 16th June 2018.

9.8 The prosecution case does not rely on the incident where photographs of a meeting
between Julie Elliott MP and a local councillor and subsequent messages in February
2018 (at the outset of the exhibits within the trial bundle) were posted on Facebook.

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 9.9 Other than to the extent that the actions/alleged actions of IM, CR, AP, PC provide
explanatory evidence and background information, the prosecution case relies on the
actions of Leonard Lowther and not others

9.10 The phrase “repeatedly contacted Ms Elliott via the Twitter Social Media platform”
adds nothing to the charge in terms of what constitutes the alleged harassment. It is not
the prosecution case that it is repeated contact that constitutes the harassment over and
above those tweets/posts that are said to constitute tweets/posts of the nature/content
described by the remainder of the wording in the charge. This is not a case where the
Crown say the harassment or an element of the harassment arises as a result of the
sheer volume of the contact absent anything else.

D. THE LAW

10. These are criminal proceedings. The Crown bring the case and the burden rests on the Crown to
prove the charge. The standard of proof is a high one – beyond reasonable doubt. If Mr Lowther is to
be convicted of the offence with which he is charged I must be satisfied on consideration of the
evidence so that I am sure that each element of the offence has been proved.

11. Within the Magistrates’ Court jurisdiction unless the Defendant is charged with alternative offences,
there is no power to find the Defendant not guilty as charged but guilty of a lesser or alternative
offence other than in very limited circumstances. This case and the charge before the court does not
fall within those limited circumstances. Accordingly, I am only entitled to reach a decision of guilty or
not guilty on the charge Mr Lowther faces.

12. For the purposes of this case the relevant statutory provisions setting out the elements of the
offence charged are found within the Protection from Harassment Act 1997 (“the 1997 Act”):
S1(1) A person must not pursue a course of conduct –
(a) Which amounts to harassment of another, and
(b) Which he knows or ought to know amounts to harassment of another
S1(2) For the purposes of this section….. the person whose course of conduct is in question
ought to know that it amounts to or involves harassment of anther if a reasonable
person in possession of the same information would think that the course of conduct
amounted to or involved harassment of another

S2(1) A person who pursues a course of conduct in breach of section 1(1) ….is guilty of an
offence

S7(2) References to harassing a person include alarming the person or causing the person
distress.

S7(5) References to a person, in the context of the harassment of a person, are references
to a person who is an individual.

S7(3) A ‘course of conduct’ must involve –

(a) In the case of conduct in relation to a single person (see section 1(1)), conduct on at least two
occasions in relation to that person

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13. This prosecution relates to online speech by Mr Lowther. Mr Myerson QC argues that Mr
Lowther’s European Convention Article 10 right to freedom of expression is engaged. Article 10
of the European Convention on Human Rights provides:
10(1) Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers. This Article shall not prevent States
from requiring the licensing of broadcasting, television or cinema enterprises.
10(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may
be subject to such formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in confidence, or for maintaining
the authority and impartiality of the judiciary.

14. By s 3(1) of the Human Rights Act 1988:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and
given effect in a way which is compatible with the Convention rights.

15. There is a body of case law concerning the elements of harassment a proportion of which arise
from proceedings involving civil actions where damages or an injunction are sought under s3 of
the 1997 Act in relation to alleged actual or apprehended behaviour that would amount to a
harassment. For the purposes of such civil actions the definition of harassment refers back to
that within s1(1) of the 1997 Act. Such case law is therefore also relevant to the criminal
jurisdiction.

16. During the course of the trial and submissions I was referred to and considered the following
cases:

Lau v DPP [2000]Crim LR 580

Thomas v News Group Newspapers Ltd, Simon Hughes [2001] EWCA Civ 1233
Pratt v DPP [2001] EWHC Admin 483
DPP v Baker [2004] EWHC 2782 (Admin)
Dowson v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB)
Chambers v DPP [2012] EWHC 2157 (Admin)
Scottow v CPS [2020] EWHC 3421 (Admin)

17. It is not necessary to set out a detailed chronology or review of the relevant case law but the
following have been of particular relevance and the extracts merit setting out more fully.
Elsewhere I have referred to other cases only as necessary.

18. Dowson v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB) [142] sets out a
summary of what must be proved as a matter of law in order:

“[142] ..…What must be proved as a matter of law for the claim in harassment to succeed

(1) There must be conduct which occurs on at least two occasions

(2) Which is targeted at the claimant
(3) Which is calculated in an objective sense to cause alarm or distress
(4) Which is objectively judged to be oppressive and unacceptable

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 (5) What is oppressive and unacceptable may depend on the social or working context in
which the conduct occurs
(6) A line is to be drawn between conduct which is unattractive and unreasonable and
conduct which has been described in various ways: ‘torment’ of the victim. ‘of an
order which would sustain criminal liability.”

19. More recently Scottow v CPS [2020] EWHC 3421 (Admin) [24 – 25] again addressed the issue:

[24] A helpful summary can be found in the very recent judgment of Nicklin J in Hayden v
Dickenson [2020] EWHC 3291 (QB) [40-44]. Points of particular relevance identified at [44] as
follows…..:

(ii) The behaviour said to amount to harassment must reach a level of seriousness passing beyond
irritations, annoyances, even a measure of upset, that arise occasionally in everybody's day-to-
day dealings with other people. The conduct must cross the boundary between that which is
unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the
border from the regrettable to the objectionable, the gravity of the misconduct must be of an
order which would sustain criminal liability under s.2 …

(iii) … It does not follow that any course of conduct which causes alarm or distress therefore
amounts to harassment; that would be illogical and produce perverse results ….

(iv) s.1(2) provides that the person whose course of conduct is in question ought to know that it
involves harassment of another if a reasonable person in possession of the same information
would think the course of conduct involved harassment. The test is wholly objective. "The Court's
assessment of the harmful tendency of the statements complained of must always be objective,
and not swayed by the subjective feelings of the claimant".
…
(vi) Where the complaint is of harassment by publication, the claim will usually engage Article 10
of the Convention and, as a result, the Court's duties under ss.2, 3, 6 and 12 of the Human Rights
Act 1998. The PfHA must be interpreted and applied compatibly with the right to freedom of
expression. It would be a serious interference with this right if those wishing to express their own
views could be silenced by, or threatened with, proceedings for harassment based on subjective
claims by individuals that they felt offended or insulted …

(vii) In most cases of alleged harassment by speech there is a fundamental tension. s.7(2) PfHA
provides that harassment includes "alarming the person or causing the person distress".
However, Article 10 expressly protects speech that offends, shocks and disturbs. "Freedom only to
speak inoffensively is not worth having".

(viii) Consequently, where Article 10 is engaged, the Court's assessment of whether the conduct
crosses the boundary from the unattractive, even unreasonable, to oppressive and unacceptable
must pay due regard to the importance of freedom of expression and the need for any restrictions
upon the right to be necessary, proportionate and established convincingly. Cases of alleged
harassment may also engage the complainant's Article 8 rights. If that is so, the Court will have to
assess the interference with those rights and the justification for it and proportionality … The
resolution of any conflict between engaged rights under Article 8 and Article 10 is achieved
through the "ultimate balancing test" identified in re S [2005] 1 AC 593 [17] per Lord Nicholls.

(ix) The context and manner in which the information is published are all-important … The
harassing element of oppression is likely to come more from the manner in which the words are
published than their content…"

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 [25] Three further points may be added:
(1) …..

(2) ….. where the claimant is, by choice, a public figure that should influence any assessment of
whether particular conduct amounts to harassment of that individual; such a person has
"inevitably and knowingly laid themselves open to close scrutiny of their every word and deed",
and others can expect them to be more robust and tolerant accordingly: Poruba v Russia 8237/03
[2009] ECHR 1477 [45], and domestically, Trimingham v Associated Newspapers Ltd [2012] EWHC
1296 (QB) [249-250].

(3) In a case of alleged harassment by publication the Court, in order to protect the right to
freedom of speech, "should take account of the extent to which the coverage complained of is
repetitious and taunting, as opposed to being new, and prompted by some fresh newsworthy
event. The imposition of liability in respect of coverage that falls in the latter category will be
harder to justify": Sube [106(2)].

20. And at paragraph 35 Scottow v CPS [2020] EWHC 3421 (Admin) went on to summarise the
approach to be taken when it is asserted that the Article 10 Europen Convention Rights to
freedom of expression of the Defendant are engaged.

[35] The approach is well-known. A measure that interferes with freedom of expression is only
justified if it is prescribed by law, pursues one or more of the legitimate aims identified in Article
10(2), and is shown convincingly to be "necessary in a democratic society". "Necessary" is not
synonymous with "indispensable", but nor is it as flexible as such terms as "useful" "reasonable"
or "desirable". One must consider whether the interference complained of (1) corresponds to a
pressing social need, (2) is proportionate to the legitimate aim pursued and (3) is supported by
reasons which are relevant and sufficient……..some of the consequences of this approach are
spelled out in the harassment authorities I have cited……. They apply to that crime and tort
because, and to the extent that, it engages the right to freedom of expression, and applies to a
course of conduct….”

21. Further guidance of assistance in undertaking the necessary approach is set out at
paragraphs [42] – [47] from which I take the key points of relevance:

21.1 It is necessary to identify whether there is an interference by the state with the
Defendant’s Article 10 right to freedom of expression. [42]. If so:
21.1.1 The relevant provisions of the Human Rights Act apply.
21.1.2 It is for the Crown to justify the prosecution rather than the Defendant’s task to
press the free speech argument [43].
21.1.3 The Court must address what legitimate aim is pursued by the prosecution and
whether, on the facts and circumstances of the individual case, the conviction of
the Defendant is a proportionate means of responding to some pressing social
need within a democratic society [43] [42]. The Court is “duty bound” [45] to test
the prosecution against the requirements of Article 10(2)

21.2 The well established proposition that free speech encompasses the right to offend
and indeed to abuse another must be acknowledged. [43]

21.3 It is not correct that the only way in which the alleged acts of a Defendant can be
justified is if they contribute to a “proper debate”. The notion of a “debate of general

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 interest” is a feature of privacy jurisprudence relating to claims of the public disclosure of
private facts. “It is not the law that individuals are only allowed to make personal
remarks about others online if they do so as part of a "proper debate".” [44]

22. I also considered the section within Blackstone’s Criminal Practice 2021 at B2.181 – B2.193
“Offences of Harassment”.

E. THE EVIDENCE

23. I heard oral evidence from DS 3045 Reeves – the Officer in the case, Julie Elliott MP and Graham
March – Ms Elliott’s constituency office manager.

24. I received a trial bundle referred to above. I was referred to the exhibits, some of the disclosed
unused material and the police interviews. Given the significant references to Mr March’s
statement when he gave his evidence I was invited to read his written statement in full.

25. The main exhibits in the case were DR17 and DR19 which in turn included a number of
posts/tweets attributable to Mr Lowther and a chronology of other events. These posts/tweets
form the basis of and are the primary evidence relied on by the prosecution. I have combined the
two into one document at Annex A which allows for the full messages along with any associated
images to be shown. It also includes some other events to assist with the chronology. At the
conclusion of the trial and before commencing this judgment I confirmed the accuracy of Annex
A with the trial advocates. In this judgment when referring to any message or post or other event
within Annex A I refer to it by the number attributed to it with the Annex. Given that I have
attached a copy of Annex A to this judgment I have avoided where possible setting out the text
of relevant communications in the judgment itself.

26. Mr Lowther did not give oral evidence at the trial. He had been interviewed on two occasions by
the police. Transcripts of his interviews and copies of prepared statements he gave at those
interviews were provided within the trial bundle.

27. I heard closing submissions from Ms Masters and Mr Myerson QC.

28. This judgment does not refer to every piece of evidence I read or heard. This does not mean that
I have not considered it all, rather that the judgment refers to that which I consider it necessary
and relevant to my decision and any findings I have made. I have set more of an overview of the
evidence each witness gave and any impression of them at this stage but considered any relevant
detail in my later assessment as relevant.

DS 3045 Reeves

29. There was nothing particularly contentious about this evidence. DS Reeves was a straightforward
witness who answered the questions that were asked of him in straight forward way, made
concessions and acknowledged the limitations of the evidence where it was appropriate to do so.
At times when asked he offered his opinion about the nature and meaning of some of the
communications whether individually or when grouped together. When he did I thought it was
given in a measured and balanced way. He was overall a credible witness.

30. DS Reeves set out how he became involved in this and other investigations. The background to
his involvement in this case was that the three relevant social media accounts had generated
complaints from Ms Elliott MP and Mr March which led to some successful and some abandoned

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 prosecutions. He was asked in June or July of 2018 to become involved and deal with them in a
more coordinated manner rather than them being dealt with in an ad hoc or disjointed manner.
He agreed by that stage no enquiries had led to any prosecution against Mr Lowther. There had
been occasions when Mr Lowther had been recorded as “eliminated” in connection with
investigations although DS Reeves could not provide absolute clarity as to what alleged actions or
which complainant(s) each of these investigations related to.

31. On 20th September 2018 Mr Lowther was arrested and interviewed by DS Reeves and a
colleague. He was arrested on suspicion of a different offence under the 1997 Act. This arrest
and interview was based on the material exhibited in DR17 and DR19 to that date. It was at that
stage that various devices that were used for Social Media by Mr Lowther were seized. Following
interview Mr Lowther was released under investigation and subsequently re interviewed as a
voluntary attender on 5th March 2019. During each interview Mr Lowther provided a pre
prepared written statement and then largely made no reply to questions asked other than to
make some comment on the validity of the investigation and the nature of some of the questions
asked. Transcripts of the interviews and the prepared statements were provided in the trial
bundle.

32. DS Reeves prepared exhibits DR17 and DR19. He described them as compilations of documents
of most interest to the investigation (DR17) and a key timeline of events including events of
relevance but outwith the allegation against Mr Lowther (DR19). In his evidence DS Reeves went
through the messages and other chronological events in exhibits DR17 and DR19 setting out his
view of each.

33. He said that from his investigation the following themes appeared in the posts/tweets.

33.1 The use of the phrase hang the old hag which was used in comparison with other
politicians actions. His impression was that the comments could be treated as
threatening, that there was a recurring theme of making a comparison with John
McDonnell MP, that Mr Lowther had commented in a tweet on 1.7.18 that Ms Elliott MP
had said she found it threatening, that some of the messages appeared to be a protest
about Ms Elliott making a complaint about AP. Also that there had been private
messages sent to people attaching a hyper link to the public Facebook page in order that
they could comment and post the phrase hang the old hag – he said he “supposed” in
some kind of protest.

33.2 Comments about perverting the course of justice which tended to relate to the IM
case and the idea that there had been some sort of collusion and corruption and that IM
had been set up and that Ms Elliott and Miles Elliott had been involved with the police in
creating some form of fake evidence.

33.3 He said that Mr Lowther’s social media activity relating to Ms Elliott appeared to
increase around 30.6.18/1.7.18

34. DS Reeves was able to provide further information regarding the IM case. He explained that the
screen shot of the post had been sent both to the police and Ms Elliott MP’s office. It was also
sent to the police by Ms Elliott MP’s office. Mr Miles Elliott (Ms Elliott MP’s son who was
employed by her office at that time) raised a complaint with the police about it. IM was charged
and prosecuted. During the course of those proceedings IM raised issues about the provenance
of the screen shot as he said he had not created or posted any such post. He raised issues about
where/who the police had received the screen shot from. The CPS tasked the police with

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 providing more continuity evidence and/or obtaining the original message and/or capturing the
message at its original posting. They were unable to do this; the original screen shot had been
sent by an anonymous source or at least someone who was not prepared to become involved in
any criminal prosecution or provide a witness statement about their capture of the post. The
Facebook page on which it had originally been posted was a closed group and the police could
not gain access themselves to that group’s page to capture the original post (if it was still there).
It was not possible to prove the original source of the post and it was as a result of this that the
proceedings were discontinued. There had been a local investigation or enquiry into police
practices in this case following the discontinuance of it. The OIC in that case or at least the
officer who had been tasked with the initial stages of the investigation had been offered
management advice regarding future action in any similar case about capturing the relevant
material at the outset of the investigation. The investigation or enquiry into the police practices
in this case did not reveal Ms Elliott MP, Miles Elliott or the office of Ms Elliott MP more generally
had behaved inappropriately. He did not believe that Ms Elliott MP had been involved in any
material way at all in this matter; the complaint and accompanying statement had come from
Miles Elliott.

35. Regarding the screen shot DS Reeves agreed that there were two possibilities:

35.1 The screenshot image was an accurate replica of a post by IM

35.2 The screenshot was an image of a post apparently by IM but which had either been
created as a fake post/screenshot from the outset or an original post had been tampered
with . When put to him he agreed with Mr Myerson QC that a proposition that it was
fake was reasonable.

Ms Elliott MP

36. Ms Elliott MP gave evidence about her background in politics, her office set up and her
experience with social media within that context. She explained that the Twitter account with
the handle @JulieElliottMP was her professional account which was not used for any personal
purposes. Her staff used it but she was also fairly active on it being responsible for about 80% of
the activity. She said she also has a professional Facebook account.

37. Ms Elliott MP confirmed she had seen all of the public posts and tweets set out in DR17 and 19 at
or around the time they were posted. She said the social media activity from Mr Lowther had
become relentless. A lot was brought to her attention. She thought Facebook was where most of
the “aggravation” came from. Although she did not look at it others brought it to her attention.
She said a point came when she asked people to stop telling her what was on Facebook about
her but people in a well meaning way still told her as they were concerned and though she
should know.

38. A large part of Ms Elliott MP’s evidence was about how the Social Media activity of Mr Lowther
and others impacted on her and others, how it had made her feel, the consequential measures
taken and what if any steps she had taken to stop or address it. This is considered in in the
harassment assessment (section G) of this judgment and so I shall not repeat it here.

39. Ms Elliott MP saw no room for interpreting Mr Lowther’s use of the phrase “hang the old hag” as
an argument about double standards between CR’s treatment and that of John McDonnell MP
following the reported comments by him referred to at paragraph 7 . Somewhat surprisingly Ms
Elliott MP said she knew nothing of the reports about John McDonnell MP until Mr Lowther
raised it. She thought the inference from the use of those words on social media was that she

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 should be hung and it was likely to encourage physical violence to be used against her, her staff
or her family.

40. Ms Elliott MP said that she was a well experienced MP, that she was used to people disagreeing
with her and perfectly happy to engage in political debate and robustly so. She didn’t consider
these communications fell within such a category. When asked about whether it was unusual for
a political opponent to publicly disagree with her, she commented that Mr Lowther was not a
political opponent. She said that whilst she had no issue with Mr Lowther disagreeing with her,
she did have a huge issue when he posted things on social media that she thought were
threatening and encouraged others to do so. She agreed that people have a right to freedom of
expression and, to an extent, that included offensive things but there was a line. That had been
crossed by Mr Lowther.

41. There was no issue so far as I was concerned with Ms Elliott MP’s credibility and I consider she
was an open and honest witness who gave the evidence she considered relevant. The evidence
she clearly wanted to give was entirely understandable. She described what she had seen, how
what she had seen affected her and her family. She provided her subjective views of the
communications, their consequences and the parameters of and limitations she thought proper
to the right of others to disagree publicly and otherwise with her. The problem was that in
significant ways Ms Elliott MP’s evidence did not align with the case the Crown were presenting.
The parameters – for example as to time frame, incidents relied on, whose actions were being
considered, what actions of Mr Lowther were being considered – were often different. I have
described it elsewhere as a disconnect between the Crown’s case and the evidence Ms Elliott MP
gave. It is not a criticism of Ms Elliott MP but it did in my view reflect the realistic position and
that made it difficult to unpick her evidence and apply it to the charge Mr Lowther faced, his
alleged actions and the basis on which the Crown put their case. Again this is something I have
discussed elsewhere in this judgment where relevant and so shall not repeat in any further detail
here.

Mr March

42. Mr March is and was at the relevant time the office manager for Ms Elliott MP. Again his
evidence of relevance is considered elsewhere in this judgment and particularly in the
harassment assessment section (G) re impact.

43. More generally he gave evidence about how he had taken the lead in monitoring social media
activity relating to Ms Elliott MP, that it had become overwhelming as there had been so much of
it and a point had come when he had considered it appropriate to consider or actually stop
showing some of it to Ms Elliott MP to protect her. He said there were often multiple posts a day,
it made grim reading and it became so excessive it was difficult to keep on top of it. He thought
he started monitoring the activity of Mr Lowther around the end of 2017 into 2018 and he would
have first raised it with the police early 2018 although he could not be entirely sure of either time
frame.

44. Again with Mr March there was the same issue about the relationship between his evidence and
the specific charge Mr Lowther faced and the basis on which it was being put by the Crown. He
too referred to and relied on the actions of others and other incidents that were not part of the
Crown’s case.

45. Mr March was also I thought an open and honest witness. But with Mr March there was a
credibility issue. I am clear here not in any sense of whether he was telling the truth rather that

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 in perhaps a very human way he had a tendency to become wedded to a position and
maintained it whatever. There were misattribution of actions and consequences of actions,
allegations were made or words used in a casual way which then did not stand up to more
detailed scrutiny but his view remained fixed. He talked about Mr Lowther “whipping up a mob”
– when examined further this appeared to relate to an incident on 16th June 2018 not relevant to
this case nor the actions of Mr Lowther or certainly not in any way that could be described as him
whipping up a mob. It appeared he essentially considered that Mr Lowther was responsible for
everything posted on the TPWSIL Facebook page. When asked about the consequences of Mr
Lowther’s communications he referred to people posting pictures of guns, talking about guns,
posts of politicians being killed but that such posts were not central to his concerns. Any such
posts of course are to be deprecated but he struggled to provide the detail when asked or to
relate them to the alleged actions of Mr Lowther. He referred to direct threats of violence from
Mr Lowther or threats leading directly from his actions – the risk he thought was demonstrated
within the “chatter” around his posts. More than once when challenged to be more specific he
referred back to what was a very general reference to “chatter” on social media. His view about
any use of the words “hang the old hag” whatever the context was very straight forward –
another court had considered them to be menacing (or, as he said on one occasion, harassment)
and therefore to use them however it was done, was in his view disgusting.

46. As Ms Elliott MP had done, Mr March confirmed the office’s previous dealings with Mr Lowther
about the complaint and then enquiry into the City Council’s development plans. I was left with
the impression both had come to consider those dealings – whether at the time or within
hindsight - to have been been problematic.

Mr Lowther

47. Mr Lowther did not give evidence. He had been interviewed twice by the police – on 20/9/18 and
5/3/19. On each occasion he gave written prepared statements and then largely made no reply
to the questions asked.

48. On 20/9/18 Mr Lowther had been arrested on suspicion of a different offence of harassment
with fear of violence but arising out of the same communications relied on in this case. His
prepared statement at this police interview:

48.1 Referred to his asserted comparison of double standards between the treatment of
John McDonnell MP regarding his alleged repetition of a comment about Esther McVey
MP (see paragraph 7 above) and that of CR and that he thought his (Lowther’s)
comments about this were political comment.
48.2 He denied making any threats towards Ms Elliott MP
48.3 Stated that he did not condone any sort of violence used when discussing political
matters or otherwise.
48.4 Raised concerns that he had been interviewed on three previous occasions for
similar matters with no further action being taken on each occasion which had caused
him stress and concerned him about his freedom of speech.
48.5 He considered his further arrest on this occasion to be harassment by Northumbria
Police and to be a political act to prevent his attempts at exposing Ms Elliott MP and her
son for producing fake evidence in the IM investigation.

49. The interview went on to ask questions about Mr Lowther’s use of Social Media, connection with
TPWSIL, his view of Julie Elliott MP, whether he accepted responsibility for the posts and tweets

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 referred to and to ask his opinion about the reasons for them and how he thought it would make
Ms Elliott MP feel seeing and knowing about them. He was also asked about a meeting he had
held or been present at and had posted on social media about. His post about the meeting said it
was to form a new group that would be an “alliance of independent thinkers open to all apart
from the far left or the far right. This is not a quick fix and last night it was agreed to begin with a
5 year plan to change Sunderland’s political landscape, here’s hoping it works, at least we’re
going to try. Once set up we hope you all join and support the cause”. He was asked about how
Ms Elliott MP featured in that 5 year plan and whether it was the intention of the group to
remove her from office or to encourage or to pressure her to resign. He was asked who was in
the group.

50. On 5/3/19 Mr Lowther was interviewed again, this time including about the posts/tweets that
form part of this charge and that came after 20/9/18. His prepared statement on this occasion
broadly repeated the concerns raised in the previous one and also asserted there was corruption
taking place between the then Northumbria PCC or the Chief Constable of Northumbria Police
and Ms Elliott MP in an attempt to silence his views. The interview covered similar areas and
topics as the one in September although focussed more on the more recent communications.

51. It was not submitted by the Crown that I should draw any adverse inference under either s34 of
the Criminal Justice and Public Order Act 1994 or s35 of the same Act in relation to Mr Lowther
not answering questions during his police interview or giving evidence at his trial. I did not
consider it appropriate to draw any adverse inference from either. So far as his silence in
interview is concerned his prepared statements were quite full as to the basis of his defence and
he did not, through his advocate (given he did not give evidence), rely on any material facts at
court that he had not provided in interview. Secondly, in relation to his not giving evidence at
trial, Whilst no doubt it would have been interesting to hear from Mr Lowther given; the nature
of his defence, his acceptance of the factual evidence relied on by the Crown, the objective
assessment of his actions the court was bound to undertake and, that he did not raise any of the
statutory defences under the 1997 Act which would almost inevitably have required a positive
account to have been advanced, I have not drawn any adverse inference.

F. COURSE OF CONDUCT

52. It is an essential element of the offence that Mr Lowther pursued a “course of conduct”. Acts
that do not amount to a course of conduct cannot lead to a conviction under this provision
whatever their number or nature. Mr Myerson QC raised two issues about this element:

52.1 That the acts complained of do not amount to a “course of conduct”. They instead
fall within 4 separate categories or potential courses of conduct – (i) repeatedly
publishing a menacing message, (ii) repeatedly contacting Ms Elliott via Twitter (iii)
repeatedly alleging that Ms Elliott was guilty of perverting the course of justice and (iv)
repeatedly accusing Ms Elliott of conspiring with other (sic) to use Northumbria Police as
a personal force.

52.2 Mr Lowther was charged on 21st March 2019. The offence he is charged with is a
summary only offence. Generally speaking by s127 Magistrates Courts Act 1980
prosecutions for summary offences must be initiated within 6 months of the offence
date other than in relation to particular offences and/or in particular circumstances none
of which apply here. DPP v Baker [2004] EWHC 2782 (Admin) confirms that the offence
under s1(1) of the 1997 Act is a continuing one but at least one incident said to form the

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 course of conduct must occur within the date of 6 months before the date of charge or
other form of initiation of criminal proceedings. 6 months prior to charge in this case was
22nd September 2018. It is submitted by Mr Myerson that even if there were a course of
conduct on or before 22nd September 2018 there was no act that could form part of that
course of conduct after 22nd September 2018.

53. Ms Masters’ submitted that there was no basis in law in which it could be said different forms of
communication and/or different acts and/or different subject matters could not amount to such a
course of conduct. Further, that in any event in this case there was sufficient connection between the
incidents to amount to a course of conduct; there was a connection in the subject matter, the
different activities identified in the charge and referred to by the defence overlapped, Mr Lowther
was the person drawing the tweets and posts together, his cumulative behaviour was premeditated
by the intention to cause Ms Elliott alarm and distress and/or to damage her reputation with each act
calculated to do so.

54. I should say that the above points were raised by Mr Myerson QC more strongly within his skeleton
argument prepared for the hearing on 13th January 2021 than at the trial. By the time of his closing
submissions at the trial, whilst both were raised neither were particularly pressed; in relation to the
first point he specifically said he was not taking the point any further than he had done previously
and it was “not advanced with any vigour”. However, them having been raised and not abandoned I
shall deal with them.

55. As recently reiterated in Scottow v CPS [2020] EWHC 3421 (Admin) at para 38(2) “….the harassment
authorities show actions on different occasions must have some link if they are to count as a “course
of conduct”. This is a point of law, but one that flows from the ordinary meaning of the words”. In
Pratt v DPP [2001] EWHC Admin 483 at para 10 it was put “…whether or not the incidents however
many there may be, can properly be said to be so connected in type and in context to justify the
conclusion that they can amount to a course of conduct”.

56. Whilst there was not agreement as to whether there was a “course of conduct” the underlying facts
set out at paragraphs 56.1 to 56.4) on which that assessment fell to be made were not disputed.
Paragraphs 56.5 – 56.8 refer to my analysis of the relevant posts/tweets.

56.1 The exhibits DR17 and DR19 are relied on as setting out the social media
communications that the prosecution assert amount to the course of conduct. They are
now merged within the agreed chronology at Annex A. Within that chronology, 13
incidents (at 1, 2,3, 4, 5, 8, 14, 15, 17, 24, 28, 34, 40) of the total 41 incidents are either
not Facebook posts or tweets by Mr Lowther and/or not about or related to the subject
matters complained of and/or a Facebook post or tweet at all and/or not within the
relevant timescale for the charge or, finally in the case of 40, this is a duplicate to show
more clearly the attachment to the Tweet at 39. Paragraphs 56.2 to 56.8 refer to the
remaining 28 tweets or posts only.

56.2 They are all posts or tweets accepted to have been written by Mr Lowther. The
Facebook posts were all on publicly accessible pages - one the group page TPWSIL, the
other Mr Lowther’s personal page. The tweets were all posted on Mr Lowther’s publicly
accessible Twitter account.

56.3 All of the tweets included or “tagged” more than one “handles” (so, I understand,
being sent to the Twitter “feeds” of the accounts to which those handles relate). Each
tweet includes the handle @JulieElliottMP.

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56.4 Some of the Facebook posts include screen shots or posts of tweets most of which
were tweets attributable to Mr Lowther. At least one tweet included a retweet.

56.5 Some of the Facebook posts and tweets contain comments of relevance to more
than one of the subject matters referred to in the charge, others only one.

56.6 Some of the references to the subject matters in the charge use the specific wording
in the charge, others do not.

56.7 Overall they occur over the course of approximately 4 ½ months. Whilst there are
some short clusters of incidents, broadly speaking there is a relatively even spread of the
posts/tweets throughout the relevant time period without large gaps of time between
incidents. By medium and subject matter they can be broken down as follows:
(a) 12 communications (6, 7, 10, 11, 25, 26, 27, 31, 32, 33, 35, 39) are tweets that in
my view are related to the subject matter of alleging that Ms Elliott was guilty of
perverting the course of justice. I have included here comments that include
references to fake evidence. Of these, 5 were replicated as screenshots or posts
onto one of the Facebook pages of relevance (7, 10, 11, 26) and one (35) was
retweeted. The remaining 7 (6, 25, 27, 31, 32, 33, 39) were presented as a tweet
that was not replicated on Facebook or by way of retweet.

(b) 9 communications (7, 11, 20, 21, 32, 33, 35, 36, 37, 39) are tweets that are
related to the subject matter of accusing Ms Elliott of conspiring with others to
use Northumbria Police as a personal police force. Of these, 2 were replicated as
either screenshots or reposted onto one or other of the Facebook pages of
relevance (7, 11) and one (35) was retweeted. The remaining 6 (10, 21, 32, 33,
37, 39) were presented as a tweet that was not replicated on Facebook or by
way of retweet.

(c) 5 communications (9, 20, 21, 22, 41) are tweets that are related to the subject
matter of repeatedly publishing a menacing message in that they included the
phrase “hang The old hag” . Of these one (9), was replicated as a
screenshot/posted onto of the Facebook pages of relevance

(d) 9 communications (7, 10, 11, 12, 13, 23, 26, 29, 30) are Facebook posts that are
related to the subject matter of alleging that Ms Elliott was guilty of perverting
the course of justice. I have included here comments that include references to
fake evidence. Of these, 4 posts were screenshots or posts of twitter comments
(7, 10, 11, 26) and so replication onto a Facebook page of tweets already
identified at paragraph 56.7(a) above. The remaining 5 (12, 13, 23, 29, 30) were
single Facebook posts only with no evidence of replication elsewhere.

(e) 9 communications (7, 11, 12, 13, 16, 18, 19?, 23, 29, ) are Facebook posts that
are related to the subject matter of accusing Ms Elliott of conspiring with others
to use Northumbria Police as a personal police force. Of these, two (7 and 11)
were screenshots or posts of twitter comments and so replication onto a
Facebook page of tweets already identified at paragraph 56.7(b) above. The
remaining 7 (12, 13, 16, 18, 19, 23, 29,) were single Facebook posts only with no
evidence of replication elsewhere.

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 (f) 7 communications (9, 16, 18, 19, 23, 29, 30) are Twitter comments that are
related to the subject matter of repeatedly publishing a menacing message in
that they included the phrase “hang the old hag”. Of these, one (9) , was a
screenshot or post of a twitter comment and so replication onto a Facebook
page of a tweet already identified at paragraph 56.7(c) above. The remaining 6
(16, 18, 19, 23, 29 and 30) were single Facebook posts only with no evidence of
replication elsewhere.

56.8 On the above analysis the 28 incidents give rise to 52 descriptions of the
communications. This reflects firstly that a number of the posts/tweets are
communications that relate to more than one subject matter and secondly that a
number of the communications were first tweeted and then posted on Facebook.

56.9 There are a relatively few additional relevant (by timescale and subject matter)
Facebook posts or tweets exhibited within the trial bundle.

57. I am satisfied that there is a link between the relevant posts/tweets relied on and they are so
connected in type and in context as to justify the conclusion that they amount to a course of
conduct rather than separate and distinct actions:

57.1 There are a significant number of communications over a relatively short period of
time without significant gaps between any of them – there is a temporal connection or
link.

57.2 Whilst the tweets are all sent to individual accounts depending on which handles are
included (but always including @JulieElliotMP) and the Facebook posts or comments are
not, there is a link or connection in the method of communication; each is by social
media and each on publicly available sites or accounts operated by Mr Lowther. On a
number of occasions the communications are commenced by one form of social media
(Twitter) and then replicated by being posted on another (Facebook).

57.3 There is a link or connection in the subject matter throughout the period:

57.3.1 There is no distinct period of time that is characterised by communications

referring to one subject matter or another.

57.3.2 More than one of the subject matters is referred to within a number of the
individual messages.

57.3.3 Whether or not referred to in the same communications there is a link or

connection between the subject matters in that each refer to and can be
characterised by (and I put this as neutrally as I can at this stage as it is only for
the purposes of setting out what I am satisfied is the connection which assists in
forming the course of conduct) Mr Lowther’s apparent sense of injustice with the
criminal justice system and agencies and within this his dissatisfaction with Ms
Elliott MP’s involvement. Whilst the communications may at times refer to
different events, the connection remains as the comments remain characterised
by the same sense of injustice and dissatisfaction for broadly the same reasons in
relation to each such event. The different events together appear to strengthen
a cumulative sense of dissatisfaction rather than prompt it as a result of a
separate event.

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 57.3.4 The asserted inappropriate relationship between Ms Elliott and Northumbria
Police runs throughout the communications and a connection is drawn between
that and each of the other subject matters.

57.3.5 By way of (non exhaustive) example see communications at 23 and 29 for

interrelationship/link/communication between the topics.

58. I also disagree with the submission that there is no possible course of conduct within the relevant
6 month timescale (ie due to their being no relevant incident post 22.9.18).

58.1 Again each are in close temporal proximity to the earlier communications and also to
each other. There are 5 communications within 10 days of the last communication pre
22.9.18

58.2 Each communication uses the social media platform Twitter and Mr Lowther’s
Twitter account. Each tags more than one handle. Each tags @JulieElliottMP

58.3 Communication 36 returns to the topic of the relationship between Ms Elliott MP

and Northumbria Police – albeit nor referring to the phrase “personal police force”

58.4 Communication 37 returns to the theme of the relationship between Ms Elliott MP

and Northumbria Police and consequential double standards – albeit not referring to the
phrase “personal police force”

58.5 Communication 39 (the attachment to the tweet) returns to the themes of the
relationship between Ms Elliott MP and Northumbria Police (albeit not referring to the
phrase “personal police force”) and the allegation of the production of a fake document
by Ms Elliott

58.6 Communication 41 returns to the theme of double standards between the use by
different people of the phrases “hang the old Hag” and “Lynch Her”

59. For the reasons set out above and applying the tests set out in paragraph 55, I am satisfied that
based on the communications relied on by the prosecution there was a course of conduct and that
course of conduct included at least one relevant act within the time period between 23.9.18 and the
date of charge.

G. HARRASSMENT

60. Turning to whether or not I am satisfied that the course of conduct amounted to harassment there
are a number of issues that need to be considered as well as the actions said to amount to the course
of conduct themselves. None of them alone is determinative of whether or not the accepted actions
of Mr Lowther amount to harassment but they are each of relevance to my overall assessment.

Ms Elliott MP’s role and the relationship of relevance between Ms Elliott MP and Mr Lowther

61. Ms Elliott MP is a public figure. She is the elected Member of Parliament for the Sunderland Central
Constituency. People will privately and publicly disagree with her and form opinions about her and

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 sometimes do so, and express them, robustly. Common sense and law dictates that she can expect to
have her words and actions subjected to close scrutiny and to be more robust and tolerant of such
scrutiny. Ms Elliott acknowledged this in her own evidence.

62. Mr Lowther was at the relevant times one of Ms Elliott MP’s constituents. There is no personal
relationship between them. Prior to the alleged acts of harassment Mr Lowther had contacted Ms
Elliott MP’s office on a number of occasions in relation to a complaint he had made against
Sunderland City Council. This concluded with Ms Elliott MP’s office conducting an investigation and
determining there was no wrongdoing on the part of the Council and communicating that to Mr
Lowther. The prosecution submit this provided a motive for Mr Lowther to harass Ms Elliott MP, to
target her and the lack of any reference to the earlier complaint and enquiry in the Facebook posts
and tweets relied on is telling in this regard. The existence of the previous complaint and enquiry
does not prevent further communication to and about Julie Elliott MP by Mr Lowther whether about
that issue or not. It does not mean that any further unconnected communication, negative or
otherwise, would amount to harassment or lower the threshold as to what would amount to
harassment.

63. Mr Lowther administers his own public Facebook page and also another group page called “The
problem with Sunderland is Labour” (TPWSIL). I have no other knowledge of that group other than
what I heard and read about in the evidence in this trial. This did not include when, how or why it
was established. The copies of the posts from that site that I saw during this trial (and which I think I
can be safe in assuming were a small fraction of the overall posts on that site) included ones that
asserted wider criticisms and allegations against Ms Elliott or her office as well as the Labour Party
and figures within the Labour Party both locally and nationally both by Mr Lowther and others. From
the posts and the group’s name it seems a matter of common sense to assume it is a social media
group motivated in large part by its members criticism of the Labour Party in Sunderland and more
widely. Mr March agreed as much in his evidence. In his police interview (see paragraph 49) in
September 2018 Mr Lowther was asked questions about a meeting he had been present at or
convened of an “alliance of independent thinkers open to all apart from the far left or the far right”
which was to begin “with a 5 year plan to change Sunderland’s political landscape”. Whilst he took
exception to the questions asked by the police in that interview, I understand from his case that he
does not dispute that meeting took place, nor the general purpose of it. It appears clear from the
totality of the evidence that he is – and again I put this as neutrally as I can - a disgruntled constituent
and critical of both Ms Elliott MP and, at least the local, Labour Party.

64. On two occasions Ms Masters sought to draw comparisons between this case and the example of
commonly encountered cases of alleged harassment which involve ex partners of a former domestic
relationship. On each occasion Ms Masters submitted there was no difference between the two. I
acknowledge that those comparisons were drawn in the context of firstly, whether it was reasonable
for Ms Elliott MP to have sought the assistance of the police rather than a potentially quicker civil
remedy and, secondly, when making submissions about there being no need for commonality of the
form and subject matter of communications/actions in order that there be a course of conduct.
However, it did draw the comparison to my attention. In my view it is also a useful comparison to
make at this stage but here to highlight the very different context of the two types of case. Using Ms
Masters’ analogy, I do not suggest that every unwanted, unnecessary or uninvited negative or
unpleasant contact between or about two former domestic partners (whatever the content and
whatever the medium) following the breakdown of their relationship would amount to harassment
in law. There is however, as a starting point at least, an obvious and stark difference between that
situation and similar contact or comment from or about an MP by one of their constituents. The
relationship was and is wholly different, the possibilities of the legitimacy of the contact or
publication likewise.

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65. This case involves a Member of Parliament and one of their constituents; a constituent who, on the
face of it, has a number of complaints about that MP and/or events that have involved that MP
and/or her relationships with others. Both Ms Elliott MP and Mr March in their evidence and then Ms
Masters in her closing submissions readily recognised that a person must be able to criticise, to form
and express an opinion including those at odds with the another. But each then put limits on it. The
various limits they appeared to set included various descriptions: whether it genuine, healthy or
proper debate; whether Ms Elliott as an experienced MP saw it as such; whether it was adverse
comment or criticism from a political opponent (and which Ms Elliott MP did not consider Mr
Lowther to be); whether so much mud was thrown that some it would inevitably stick; whether it
would be seen as appropriate or acceptable by a right thinking member of society; whether it
involved the use of words – whatever the context – that had previously been determined to be
menacing on different facts in a previous case involving a different defendant; whether it would be
acceptable in another form of communication such as published within a newspaper.

66. In the context of my assessment of what amounted to harassment and particularly when considering
a person’s freedom of expression, Ms Masters submitted that the impact of communications of the
type this case was concerned with would have a greater impact on Ms Elliott MP as a Member of
Parliament given both security issues relevant to that role and that her career relies heavily on her
reputation and credibility. Accordingly the argument went, if anything she should be afforded greater
protections under the 1997 Act than others. I do not suggest anything other than the law applies
equally to MPs generally or to Ms Elliott MP specifically as it does to any other complainant of a
charge of harassment. I do not dispute that there may be inherent risks when carrying out the role of
MP nor that there are reputational issues (although I am less persuaded that Ms Elliott’s career as an
MP rests on her credibility to a significantly greater degree than a large number of others). That
presumably is why she and other MPs have available to them particular advice and resources to
assist in assessing their security risks and necessary protective measures that Ms Elliott MP and Mr
March described in their evidence. It does not however result in a different or lower test in law as to
what amounts to harassment. Whilst any case will be determined on its own facts and circumstances,
if anything, the jurisprudence suggests the contrary whether based purely on domestic jurisprudence
or within an assessment of a person’s Article 10 European Convention rights. As already set out from
the recent example of Scottow v CPS [2020] EWHC 3421 (Admin) [25(2)] ….. where the claimant is,
by choice, a public figure that should influence any assessment of whether particular conduct
amounts to harassment of that individual; such a person has "inevitably and knowingly laid
themselves open to close scrutiny of their every word and deed", and others can expect them to be
more robust and tolerant accordingly: Poruba v Russia 8237/03 [2009] ECHR 1477 [45], and
domestically, Trimingham v Associated Newspapers Ltd [2012] EWHC 1296 (QB) [249-250].

Impact on Ms Elliott MP, Mr Lowther’s motivation

67. I heard evidence from Ms Elliott MP and Mr March which included her evidence about the impact on
her. They both also commented on their view of Mr Lowther’s motivation and I was addressed on
both by Ms Masters.

68. The legal test for what amounts to harassment is as an objective one. This is set out statute at s1(2)
of the 1997 Act and repeatedly in case law. Again I need not set out a chronology of the relevant
jurisprudence but both Dowson v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB)
[142] and Scottow v CPS [2020] EWHC 3421 (Admin) already referred to at paragraphs 18 and 19
make the point clear.

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69. The evidence of Ms Elliott MP and Mr March was that the posts and tweets from Mr Lowther had
been relentless, that they had caused distress to Ms Elliott MP, that Mr March, who was primarily
responsible for the monitoring of social media, had been concerned about the potential impact on
Ms Elliott MP such that he did not show her all the social media content. Ms Elliott MP said that,
whether or not she looked at the platforms and the communications, others brought them to her
attention. A point came when Ms Elliott MP had asked others not to do so but some people still did.
In terms of the impact both said that they had to take additional security steps. This had happened at
various times for various reasons including on advice to MPs and particularly female MPs more
generally. Such examples included following the murder of Jo Cox MP and in the lead up to the 2019
general election. But both said that they had put additional security measures in place as a result of
social media activity of Mr Lowther. For obvious reasons Ms Elliott did not provide in depth detail
about some of those measures but did say for example it had resulted in changes in the way she
conducted surgeries in her office, whether and in what circumstances she would go to the city
centre. She said the impact on her and her family had been pretty horrendous and she had to alter
aspects of her life personally and how she operated as an MP. Ms Elliott MP also said it had
impacted on her staff – all were provided with personal alarms, some left her staff – and also her
family members particularly her son and his then pregnant wife.

70. So far as the use of the words hang the old hag Ms Elliott MP said she felt as if Mr Lowther was
encouraging others to post it and that she found the expression deeply distressing and that
encouraging others to post it was quite malicious and nasty.

71. In relation to the communications about fake evidence and perverting the course of justice, Ms Elliott
said she found them very upsetting as they accused her office of lying and, on a more personal level,
her son of doing so which she found really upsetting. The communications accused her of things that
were not true, she felt as if she was the victim in Mr Lowther’s behaviour and that it questioned the
credibility and honesty of her, her office and her son/family. She said that she believed she – and her
son and her office – had suffered reputational damage as a result of the allegations. She said she felt
the impact of this engaging with her constituents and referred to this in the context of campaigning
in the run up to the May 2018 local elections - it was a matter that she had been asked about and
had to explain. She said that in the 2019 general election “we did badly” and she believed these posts
played a part in that.

72. In summary Ms Elliott’s evidence was that she suffered alarm and distress as a result of the posts and
her experience with her constituents demonstrated to her that she had suffered reputational
damage.

73. Mr Myerson QC said he did not suggest that the court could not consider what the witnesses said the
consequences of Mr Lowther’s actions were or how they felt about it. But, and here he was clear he
did not seek to criticise the witnesses, he submitted that at least some of the evidence should be
treated with some caution. He suggested that it had been difficult for them as is it appeared there
had been no attempt to separate out (i) the consequences and feelings resulting from what Mr
Lowther had tweeted or posted within the communications on which Crown relied in this case from
(ii) the consequences and feelings resulting from things that have happened around Mr Lowther that
he was not responsible for in law. For example Mr March had on numerous occasions in his evidence
referred to the impact of all the “chatter” on Facebook. Mr Myerson QC went on caution me to recall
that words such as “incite”, “encouragement” were referred to in the evidence submitting that they
were words that have distinct definitions in law and are more appropriate to other charges.

74. In appropriate circumstances evidence about the impact and actions of the alleged harassment on a
person and the alleged motivation of the accused could assist in informing the assessment of
whether the actions amount to harassment. It would not be right to simply ignore without comment

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 the evidence of Ms Elliott and Mr March because the test is objective. I accept the evidence given by
Ms Elliott about the concerns she had during the relevant time period - concerns for her own security
as well as for staff and her family members. When being cross examined and asked about some press
interviews she talked about her cross party representative role at relevant parliamentary committees
and the evidence she had given to those committees about the security concerns. Whilst she was
challenged about the focus of the evidence she had given in this role, I was satisfied that, as she said,
the evidence she had given was about security issues for female MPs generally and/or as well as her
rather than just about herself. Such issues have been widely reported on including in the time period
relevant to this charge.

75. However, given the objective standard of the threshold I recognise there is a limit to the assistance to
the assessment of whether conduct amounts to harassment that such evidence can give. I considered
in this case the evidence also had some of its own particular problems. Not least - and neither do I
say this in a critical way of either Ms Elliott MP or Mr March - as Mr Myerson QC submitted there did
appear to be something of a disconnect between how the Crown put their case and the evidence
that Ms Elliott MP and Mr March, for entirely understandable reasons, wanted to give.

75.1 Both Ms Elliott and particularly Mr March explicitly referred to and relied on other
incidents that were significant to their assessment of Mr Lowther’s actions which the
Crown clarified their case did not rely on. For example there had been a demonstration
or protest march in Sunderland on 16th June 2018 around which there had been social
media and other activity that both referred to as particularly concerning. This did not
form part of the Crown’s case. There was evidence about an incident before the charge
date in which some photographs were posted on social media – again not part of the
Crown’s case.

75.2 Both Ms Elliott and Mr March held Mr Lowther responsible for the actions and
communications of others and/or that suggested that he had been acting in cohort
“association” with others or inciting them. This again was not the Crown’s case nor
reflective of the charge he faced.

75.3 Within this context Mr March referred to posts on Social Media including images of
guns, images or politicians being killed, threats of violence being made and being told or
being personally aware (I was not sure which) that people with “far right extremist
views” and “criminals” were involved. This again was not the Crown’s case against Mr
Lowther nor had it ever been. Given the nature of some of the posts that Mr March was
describing, if it was suggested that they were somehow attributed to Mr Lowther or his
actions, it was surprising this was the first time they had been mentioned by Mr March.
Ms Elliott MP considered that the actions of others (it was put as “CR, AP etc”) “all stems
from or is whipped up by Lowther”. Mr March talked about Mr Lowther “whipping up a
mob”.

75.4 Again related to Mr Lowther’s responsibility for the actions of others, when her
written statement was put to Ms Elliott MP during cross examination, she agreed with
her former written assessments. Firstly that “I accept that Mr Lowther did not coin the
phrase hang the old hag or post the image which now goes hand in hand with the
slogan……he has in my view added fuel to the fire and orchestrated a campaign within
which I am a target”. Secondly that “It is not that I believe Mr Lowther himself would use
violence against me …. but there are many vulnerable people out there who read social
media posts and take them literally”. For completeness and the avoidance of doubt DS
Reeves said in his evidence that whilst he considered the phrase hang the old hag to

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 have a “dimension” of violence to it he was unaware of any person committing any act of
violence on the back of any posts by Mr Lowther nor did he consider the phrase or Mr
Lowther’s use of it as a “call to violence”.

75.5 On the evidence I heard I am satisfied that over the relevant period changes were
made to Ms Elliott MP’s security measures. Ms Elliott MP said that all of the relevant
additional security measures were as a result of Mr Lowther’s actions. Yet when taken
further it seemed she did not mean Mr Lowther only. She went on to variously describe
it as being as required as a result of the actions of “Mr Lowther and his associates” and
that the extra measures were “entirely down to Lowther and the people he knows on
social media.”

75.6 A significant part of Mr March’s assessment of the impact on Ms Elliott, or at least

whether the communications amounted to harassment, was based on the impact of the
conviction of CR where it had been determined the phrase was menacing (or amounted
to harassment) and so to repeat it was the same and was in his view disgusting. Within
Mr March’s evidence there was no room for any assessment of the context in which the
words were posted by Mr Lowther. When asked about the context of the use of the
words “hang the old hag” as used by Mr Lowther, Ms Elliott MP said that she did not
consider that there was any comparison to be drawn between the conviction of CR and
the alleged actions/words of John McDonnell MP and thereafter his alleged failure to
apologise and no criminal investigation or prosecution of him. She did not think it
represented any legitimate or reasonable point of view about double standards or
different treatment. Indeed, Ms Elliott MP largely maintained that she did not
understand or recognise the point being made that there could be such an argument or
point of view and that the use of “hang the old hag” by Mr Lowther could be seen in that
context.

75.7 Much of Ms Elliott MP and Mr March’s evidence referred to the volume of the
posts/tweets. It was referred to in various terms – that it was relentless, that there were
multiple posts/tweets a day, that it increased post Mr Lowther’s arrest, that there was
too much for Mr March to keep on top of. Again, the Crown were clear when I sought
clarification that it was not part of their case that the volume of posts/tweets amounted
to the course of conduct other than to the extent that any posts/tweets referred to the
subject matter in the charge. I accept that that there was more Facebook and Twitter
comment by Mr Lowther than I saw in the exhibits and that it simply would not have
been practicable for me to see it all even if it was still available and relevant. Also that it
was DS Reeves who gathered together the exhibits that were presented as the most
relevant and not Ms Elliott MP and/or Mr March. But DS Reeves confirmed there had
been a number of investigations about social media issues on the relevant three
platforms - there had been other investigations, other complaints by or on behalf of Ms
Elliott MP, complaints by other people, others had been investigated, there had been
prosecutions some successful, some abandoned. He, as the experienced officer brought
in to coordinate the investigations, created the exhibits DR17 and DR19 and it was those
communications that the Crown relied on. Again I accept that DS Reeves obviously did
not include every communication of relevance to the charge subject matter in those
exhibits. If nothing else there were other communications included in other exhibits in
the trial bundle. But within that bundle there was nothing comparable to the volume
described by Ms Elliott and Mr March. I also note that in police interview on 20/9/18 DS
Reeves, who by then had been involved in this investigation since June or July 2018 and
had mined the relevant accounts to capture relevant posts, in relation to Twitter referred
to Mr Lowther having contacted Ms Elliott MP “close to 20 time via Twitter” by that date.

Page 24 of 42
 Whilst, I accept there will have been a greater volume of social media communications
that Mr Lowther was responsible for, given the difficulties with the evidence already
referred to it is not possible for me to accept on face value, and certainly not to the
criminal standard, that the volume of social media activity referred to by Ms Elliott MP
and Mr March was all of communications of the nature forming the alleged course of
conduct in this charge nor necessarily all attributable to him.

75.8 Mr March suggested that the tone and nature of the posts became more concerning
as time went on. This was explored in cross examination. I agree with Mr Myerson QC’s
submission following this exploration that the exhibits I had made available to me did not
support this contention. Again I accept I have not seen all the social media
communications of Mr Lowther. However, for the same reasons I have given about the
evidence on volume I am not able, from Mr March’s evidence alone, to draw the
conclusion to the criminal standard that his assessment about increased seriousness of
Mr Lowther’s communications is accurate.

75.9 In Ms Elliott MP’s evidence she referred to actions directed at her, her son, her
family, her office co-terminously, likewise the impact on them. Mr March the same. It is
completely understandable that she would have a view about behaviour directed at and
about her staff and family and, where relevant, be concerned about and protective of
their security. However, Mr Lowther is charged with harassment of Ms Elliott MP. S1(1A)
of the 1997 Act makes for provision for a charge of harassment against two or more
people. Mr Lowther was not charged under this provision.

75.10 In terms of reputational damage Ms Elliott again spoke about the impact on her,
Miles Elliott and her office more generally – that it was unkind, untrue that they were
saying “we” and “he” were liars. When being asked about potential other causes of
action she could have pursued Ms Elliott MP said that Miles Elliott has sought legal
advice about a civil action. In explaining the impact of reputational and saying that in the
2019 general election “we did badly” I assume Ms Elliott MP meant that she had not
polled as well in her constituency in the 2019 general election as she had done previously
or might otherwise have expected to do. I took her evidence to mean this was in relation
to the allegations of perverting the course of justice and creating fake evidence although
it may have been about the posts/tweets more widely. Either way, other than that
comment I was not provided with any evidence of how Ms Elliott MP had performed in
the 2019 general election. Nor, if as she said “badly”, what the reason or reasons for that
may have been other than her subjective evidence of her assessment of the impact due
the unspecified comments of an unquantified number of constituents. Also, as with
other areas of her evidence it appeared that the assertion was doing badly was all as a
result of Mr Lowther’s social media activity. My comments about Ms Elliott MP and Mr
March’s evidence of other’s actions is equally relevant in this context. It is also I think a
fair assessment that the totality of the posts in the trial bundle indicate that there were
other areas of disagreement between Ms Elliott MP and some of the commentators and
her constituents.

76. It was as a consequence of the above issues that I was left with the impression Ms Elliott MP and Mr
March felt that Mr Lowther was to held responsible for all the social media activity (or chatter as Mr
March referred to it) and the consequences therefrom and this whether or not it was his activity or
that of others that could not be properly attributed to him, Also whether the impact was felt by Ms
Elliott MP or others.

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77. There were some additional points raised by Mr Myerson QC around the issue of impact which I hope
I can deal with briefly. He reminded me that both Ms Elliott and Mr March had stressed the impact of
Facebook rather than Twitter. He went on to submit there was a far greater traffic of tweets than
Facebook. Unless I am mistaken in my interpretation, in fact a significant number of the
communications within the relevant 28 (see paragraph 56.1) were tweets which were then either
screenshotted or re posted onto Facebook. The original form of communication becomes less
relevant within this context. If I am incorrect in my understanding of this point then so be it but for
reasons that will become clear, it is not in my view of significance to my decision. I have considered
the issue of the social media platforms used elsewhere at paragraph 95 onwards.

78. Secondly that Ms Elliott’s more contemporaneous response to the communications was relevant as it
inferred it did not have the impact on her she now said it did or recalled it as having had. Mr
Myerson QC submitted that, had their been a significant impact, Ms Elliott MP would have taken
action to block or mute Mr Lowther on social media and to seek advice regarding a civil remedy or
injunction. Both Mr March and Ms Elliott MP were asked about muting or blocking in their evidence.
They each said this was a relatively new situation to both of them and they felt it was safer for
themselves and their staff to know what was being said in order that any risk assessment necessary
could be undertaken. So far as any civil action was concerned Ms Elliott MP said that was not
something she had the funds to pursue I have no idea about Ms Elliott MP’s financial circumstances
and so cannot make any assessment of the accuracy of that statement but have no reason to believe
that the likely costs or her belief as to the likely costs involved in pursuing a civil action was not a
pressing concern. In any event she was clear that she thought it amounted to activity that should
properly be reported to the police which she did. Both Mr March and Ms Elliott MP said they had
consulted parliamentary security bodies who had not suggested a civil action. I thought the reasons
for not taking the steps Mr Myerson QC asserts they could or should have done were entirely
credible.

79. It was also submitted by Mr Myerson QC that it was necessary for me to make a factual
determination as to when Ms Elliott MP and Mr March started to take the social media
communications from Mr Lowther seriously. Again this, it was submitted, would assist me in
assessing impact on a more contemporaneous basis.

80. He suggested I could measure that against the timing of reports being made to the police and that I
could draw some valid comparisons between the chronology of this case and that of CR’s. I do not
agree with that latter submission. The CR investigation and prosecution was based on different
circumstances and facts. I have no idea why it progressed more quickly than this case but I do note if
nothing else it referred to one Facebook post only. I assume that Mr Myerson QC does not seek to
draw a comparison between how quickly, once the relevant defendant was charged, the court dealt
with each case. Even setting aside the facts of each case, there are any number of reasons why that
may have differed and, as he is aware, this case has had a difficult chronology for a variety of reasons
none of which assist with any assessment of how serious or otherwise Ms Elliott MP considered Mr
Lowther’s actions to be. So far as any delay in police investigation between complaint and charge is
concerned, it too is always going to be fact dependent. So the only basis on which it can be submitted
that there it is a relevant comparison is the actions of the relevant individuals and the timing and
actions in reporting it to the police. I understand in the CR case that it was Miles Elliott that reported
it to the police and liaised with them. Ms Elliott MP did not give evidence at the trial not being
required to do so given the nature of the alleged facts and the charge preferred in that case. Whilst
there was some lack of clarity about precisely what was reported when, I accept the evidence of DS
Reeves, Mr March and Ms Elliott MP that various reports were made to Northumbria Police at
various times by Ms Elliott MP and others on her behalf about Mr Lowther and his social media
activity – in all likelihood also about others too. Given the background of the police investigations
into a number of related complaints and that DS Reeves was specifically assigned in order to bring

Page 26 of 42
 some coordination to the task, the fact that he did not meet with Ms Elliott MP or Mr March or take
a statement from them until September 2018 is not something I consider assists in determining
whether or not or when Ms Elliott MP or Mr March considered it was of concern. I do accept the
evidence that complaints were made prior to DS Reeves’ involvement and that they were made at
various times including throughout the early part of 2018. It is not possible for me to define it any
further.

81. The Crown submit the issue with the former complaint about Sunderland City Council and Ms Elliott
MP’s office not upholding or supporting Mr Lowther’s complaint provided the motive for him to
harass Ms Elliott MP. Mr March along with Ms Elliott MP both referred to this in their evidence. Ms
Masters said the lack of reference to the earlier complaint and enquiry in the Facebook posts and
tweets relied on is telling in this regard. The existence of the previous complaint and enquiry may
have piqued or furthered Mr Lowther’s interest in Ms Elliott MP but it does not by necessity prevent
further communication to and about her by Mr Lowther whether about that issue or not. It does not
mean that any further unconnected communication, negative or otherwise, would amount to
harassment. I am unclear why it was said the lack of reference is indicative of his intention in the
further communications. That matter was – it was clear from Mr March’s evidence – closed with a
thorough enquiry having been undertaken and thorough explanation provided to Mr Lowther. Again,
given the objective assessment that falls to be undertaken, there is in general terms a limit to the
value and relevance of a person’s intention when harassment is alleged. I do not agree in this case
the lack of reference to the former complaint against the City Council is particularly indicative of the
necessary mens rea for the offence charged nor that it assists me particularly.

82. Ms Masters also submitted that the fact Mr Lowther had incorporated the twitter handle
@JulieElliottMP in all the relevant tweets was indicative of his motivation – that he wanted her to
see the messages and he wanted her to be distressed. I have addressed this issue in the following
section in considering the form of communication.

Form of communications

83. Each communication referred to used one of the social media platforms Twitter or Facebook. By my
calculations of the 28 communications of relevance there was a relatively even spread – there were
13 Facebook posts (of which 5 appear to include a previous tweet and 8 are simple Facebook posts
with out a tweet attached), and 15 further tweets that were not posted one way or another in a
Facebook post.

84. Ms Masters drew comparisons between the use of social media for the communications relied on
and communication by letter, telephone or publication in a Newspaper as follows.

84.1 They would not be tolerated in those other forms and may be considered or become
illegal.

84.2 That their effect was or could be more marked than if such other methods were used
due to the reach of social media.

84.3 That whilst Ms Elliott MP could choose not to look at either platform, that did not
take into account what others would tell her about what they had seen especially given
the reach of Social Media.

84.4 That Mr Lowther’s tagging the @JulieElliotMP handle in each tweet meant that they
were direct communications with Ms Elliott

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 85. Mr Myerson QC submitted:

85.1 The law is clear – the internet/social media and newspapers cannot be considered
the same and the onus on tweeters and people who post on Facebook is not the same as
newspaper, radio, TV journalists, presenters and editors

85.2 The reason for this lies in part because of the more transient nature of social media
platforms and in part because of the level of trust or faith held in more mainstream
media albeit with some discount for the political stance of some.

86. Each tweet used Mr Lowther’s public twitter account. Each tagged the handle @JulieElliottMP. Ms
Masters submitted that this tagging was a deliberate act and indicative that Mr Lowther wanted Ms
Elliott MP to see the tweets and that he wanted her to be distressed. Each tweet also tagged a
number of other handles including those that appear to have been used at the time by Northumbria
Police, the Northumbria PCC, Police Standards, groupings within the Labour Party, some national
newspapers, Private Eye, the then Home Secretary Sajid Javid, the then Secretary of State for Justice
and Lord Chancellor David Gauke, the Attorney General, the Crown Prosecution Service. The handles
that were tagged appears to depend on the subject matter of the tweet. It is apparent that each
tweet was not just a private message to Ms Elliott MP but a message directed to those who Mr
Lowther considered would or should be concerned with or interested in its contents or in some cases
partly culpable for the matters alleged. Whatever the assessment of the nature of the content of the
messages and whether or not accusations or arguments that were made were reasonable or correct
the tweets appear to have been designed bring the issue to the attention of those that Mr Lowther
felt should know about them. This was the case whether as people or bodies accused of involvement
in the same or similar activities or as representatives of bodies or politicians whose role meant they
should be interested in investigating or reporting such accusations.

87. Each of the Facebook posts were made on either Mr Lowther’s publicly accessible Facebook page or
that or the group Facebook page he is an administrator of - The problem with Sunderland is Labour
(TPWSIL). Of those exhibited in DR17 and DR19 the vast majority if not all of them appear to be
TPWSIL. I have already described the nature of TPWSIL Facebook page. (see paragraph 63) It is not
in any way a moderated group with any form of independent oversight or obligation to balance. It is
not a mainstream media outlet or publisher nor clearly does it either carry or take the editorial
responsibilities of such organisations. Mr Lowther does not hold the overall responsibility for what
others say in the way that potentially e.g. an editor of a Newspaper may. There can also be no
sensible suggestion that anyone accessing the posts on TPWSIL could consider it to be an impartial or
balanced Facebook group, certainly not as far as the Labour party in Sunderland is concerned
whether from its name or at least the posts that I have seen.

88. I am not satisfied that the tweets were – as Ms Masters suggested - a direct communication to the
extent that it is the equivalent of a letter or a phone call direct from Mr Lowther to Ms Elliott MP.
The tagging the handle @JulieElliottMP was no doubt a deliberate act but it was to a professional not
a personal Twitter account, an account that both Ms Elliott MP and others on her staff monitored
and used. It was Mr March’s evidence that he was primarily responsible for monitoring the Social
Media activity. My understanding of the consequence of tagging a handle in a tweet is that it would
then appear within the “feed” of all tweets within that Twitter account. The alternative and most
direct way of communicating with a Twitter user and, I consider more akin to a letter, email or a
phone call, would have been to use the “direct message” facility. Likewise with Facebook – there
were no direct messages to Ms Elliott MP via this platform either.

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89. However, this does not take Mr Lowther much further. Even if I am correct, the absence of direct
communication of that nature does not prevent communication to or about a person being capable
of being harassment. It is established law and not at all uncommon that a person may become aware
of a course of conduct, or parts of it, indirectly, e.g via a phone call to a third party, provided there
was evidence on which the Court could properly conclude that the Defendant was pursuing a course
of conduct with the necessary mens rea (See Blackstones criminal Practice 2021 B2.187 referring to
Kellett v DPP [2001] EWHC Admin 107). Whilst the twitter account was a professional account, it is
not credible to suggest that Mr Lowther would not anticipate that Ms Elliott MP would see tweets in
which her professional account was tagged. Likewise, that posts about her on a Facebook page
entitled “The problem with Sunderland is Labour” with a wide membership would not be brought to
her attention via one of a number of routes or people. Ms Elliott MP’s evidence was that she did not
look at the relevant Facebook pages and asked people not to tell her what was there but they
continued to do so. Setting aside the inherent likelihood of them being brought to her attention,
there are communications within the exhibits that cannot be interpreted in any sensible way other
than Mr Lowther at least anticipated Ms Elliott would see them. By way of non-exhaustive example
see the posts on 28/6/18 at 16 in Annex A, on 29/8/18 at 30 in Annex A.

90. Ms Masters referred to the lack of response from Ms Elliott MP to what she submitted were direct
communications as being telling – presumably that it should have indicated to Mr Lowther that Ms
Elliott MP did not want to engage in this direct communication and therefore his contact was
unwanted. Mr Myerson QC described the communications as being less direct communication but
rather a “billboard” presumably to which no response from Ms Elliott MP was expected. I tend to
agree the latter more accurately reflects the position but, first that does not mean Ms Elliott was not
likely to see them, secondly that Mr Lowther anticipated that and thirdly, in any event, it is irrelevant
as it is not necessary for the communication to be direct for it to form a course of conduct amounting
to harassment.

The actions of Mr Lowther rather than others

91. I have already considered in some detail the evidence I heard from Ms Elliott and Mr March which in
turn referred to the actions of others and the role of the actions of others in the alleged course of
conduct and my comment on that. I need not repeat it here. It is equally applicable.

92. But, for clarity the charge against Mr Lowther relates to his actions only. The actions or alleged
actions of others are relevant in some instances for explanation and background. This is clear from
the charge and the law but, given the evidence I heard, I sought and was provided with confirmation
of this by the Crown at the conclusion of the trial again. It is not alleged by the Crown that Mr
Lowther is responsible nor criminally liable for the actions of others whether before, during or
following the posts referred to in his case. Under S3A of the 1997 Act “a person’s conduct on any
occasion shall be taken, if aided, abetted, counselled or procured by another… to be conduct on that
occasion of the other (as well as conduct of the person whose conduct it is)..…”. This case was not
put in this way and the Crown placed no reliance on that statutory provision and, given the nature of
the exhibited evidence I had sight of in this case, properly so in my view.

93. Mr Lowther was also not charged with any other offence under ss44 – 46 of the Serious Crime Act
2007 – a group of three specific offences coming under Part 2 of that Act as offences of “Encouraging
or assisting crime”. I understand at the time of his arrest in September 2018 he was arrested on
suspicion of one such offence but that did not result in a charge.

94. It is possible in a case of harassment that the actions or words of the accused person that do not
fulfiul s3A of the 1997 Act or the provisions of the Serious Crime Act but yet still offer some

Page 29 of 42
 encouragement or similar to others to act in a particular way could in themselves amount to
harassment. But it would be the act/words of the defendant that was relevant and whether those
acts/words formed part of a course of conduct that amounted to harassment. If I am right in my
assessment of that as a possibility the only candidates in the exhibits I was provided with is a series of
communications over 30/6/18 to 1/7/18 at incidents 16 – 22 of Annex A. They are dealt with in more
detail with the following section in considering the posts/tweets themselves.

Content and nature of communications

95. I have already determined that there is a course of conduct although it is clear that within that
course of conduct and the charge itself the messages refer to more than one connected subject
matter or topic.

96. As set out at paragraph 9.10 Ms Masters confirmed that the words “repeatedly contacting Ms Elliott
via the Twitter Social Media platform” within the charge added nothing to the charge in terms of
what constitutes the alleged harassment. There are three subject matters or topics to the conduct
alleged to amount to harassment. That Mr Lowther:

96.1 Repeatedly published a menacing message

96.2 Repeatedly alleged that Ms Elliott was guilty of perverting the course of justice

96.3 Repeatedly accused Ms Elliott of conspiring with other to use the Northumbria Police
as her personal police force

97. Taking each in turn. The reference to a “menacing message” within the charge was acknowledged by
all to refer to the phrase “hang the old hag” that formed the CR post from 6th February 2018 and
which resulted in his conviction on 17th March 2018 under the Communications Act 2003 with a
specific finding by the Judge who heard that trial that the phrase was “menacing” (that
determination being necessary in that case as there are different ways of committing the offence CR
was charged with)

98. It was agreed that:

98.1 The determination of Sunderland Magistrates’ Court on 17th March 2018 that the CR
post was menacing is not binding on this court.

98.2 It is not necessary for me to make any determination in this case whether in CRs case
the message was menacing. It would in any event not be possible for me to do so given
that I do not have the evidence in that case available to me.

98.3 Any determination I would make in this case must be in the context of the evidence,
facts and circumstances of this case regardless of the commonality of any words in
another case. The fact that a phrase was considered to be menacing in one case does not
mean absent anything else that the same phrase will necessarily be menacing in another.

99. In this case the words “hang the old hag” appeared, whether explicitly or by implication, in the a
number of communications. In my view on each occasion that the phrase is used it is used within one
of the following contexts.

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100. Firstly as a comparison being made of words allegedly said by John McDonnell a Labour MP
(and in 2018 the shadow Chancellor of the Exchequer) in which he was reported to have repeated a
comment made by others about Esther McVey (a conservative MP who at that time was the Work
and Pensions Secretary) which included a reference to her being “lynched” or “lynching” her. The
comparison is expressed in Mr Lowther’s communications as a double standard of the legal and
political establishment as he asserts the words are similar in character and that Mr McDonnell MP
did not apologise when asked to nor was he prosecuted whereas CR was prosecuted and convicted
following a trial. This comparison and Mr Lowther’s view that it represented a double standard was
set out explicitly in a number of the communications.

101. Secondly as a comparison with the treatment of others by the Labour Party referring
specifically to John McDonnell and another former Labour Party MP Jared O’Mara

102. Thirdly that as a result of the relationship between Northumbria Police and Ms Elliott and/or
the local Labour Party and/or the then Police and Crime Commissioner for Northumbria Ms (now
Dame) Baird QC, Northumbria police had perpetuated this double standard by arresting people for
using the phrase hang the old hag and the AP image. Here there were communications which said in
terms that this should not be allowed to continue and that a way of testing the police on it and /or
the relationship between Northumbria Police and Julie Elliott MP would be for others to post the
same phrase to see how the police would cope if large numbers did so.

103. I make no findings whatsoever as to what John McDonnell or Jared O’Mara did or did not say
nor what the appropriate response by them or others to anything they did or did not say should have
been. There is no need for me to do so. But it was publicly reported that the remarks had been made.
It is also not necessary for me to determine whether or not I consider the comparisons made by Mr
Lowther in his posts/tweets to be meritorious. But looking at the circumstances as a whole, it is
possible to understand the nature of the argument or comparison rather than to dismiss it as
nonsensical. More importantly than whether or not Mr Lowther’s argument is correct, is the fact that
he is making which creates a context to them.

104. In advancing the argument he does in his posts and tweets Mr Lowther repeats a series of
words or a phrase that a previous court, in different circumstances and based on different facts,
found to be menacing. Without speculating about the evidence or reasons for the decision in CR’s
case, it is possible of course to see how within a different factual matrix those words or that phrase
may be considered to be menacing. But here in this context the words are not being used as a threat,
nor in a way that is inherently or objectively menacing. They are not a call to violence nor any action.
It is not sufficient in this case – as the charge seems to presuppose - that because Mr Lowther has
used that phrase its use is bound to be menacing in this case too. The only assistance the use of the
words “menacing message” has in the charge is that it is a short hand for the phrase “hang the old
hag”

105. But the words “a menacing message” in the charge cannot be completely ignored or
dismissed as without any meaning. It is either:

105.1 Short hand for use of the words “hang the old hag” and nothing more. In which case
its use is meaningless and adds nothing to the assessment to be undertaken of the
conduct alleged.

105.2 Short hand for the words “hang the old hag” which are inherently menacing
whenever said in whatever context (whether because in a different case on different
facts the phrase was determined - in a non binding way - to be menacing or for some
other reason). If so, I do not accept this and the Crown did not assert it to be so.

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 105.3 Short hand for the phrase “hang the old hag” which, in this case and on this case’s
facts, is menacing.

106. The use of “menacing message” in the charge lacks clarity which has turned out to be
unhelpful. In my view though this aspect of the charge has to be interpreted as going further than
simply using “menacing message” as short hand for the use of the words “hang the old hag”
whatever the context; that could not be right. By using “menacing message” the charge alleges that
Mr Lowther repeatedly published a menacing message (which in this case is commonly
acknowledged to comprise of the words “hang the old hag”) and also that those words, in this case
and on the the facts of this case are menacing.

107. That is how the prosecution brought their case, that is what Mr Lowther is charged with; In
Ms Masters’ closing submissions, perhaps unsurprisingly, the words a “menacing message” were not
mentioned. When she summarised the prosecution case she said “he repeatedly used Twitter and
Facebook to post and tweet comments .. using the phrase hang the old hag and encouraging others
to”. Again though, the inference was clear in that submission; the words are all important, the
context not.

108. Whilst the charge did not mention encouragement to others to act in a particular way, Ms
Masters in closing submissions, referred to Mr Lowther encouraging others to use the phrase “hang
the old hag”. I did not understand that Ms Master’s submission was that by Mr Lowther’s use of the
words alone that amounted to encouraging others to use them such that it could form part of a
course of conduct amounting to harassment Rather that there was some general use by him and
other occasions when he offered others specific encouragement to do so. Not least as in her closing
speech Ms Masters distinguished between the two in describing Mr Lowther’s actions “using the
phrase hang the old hag and encouraging others to do so”. In their evidence each of DS Reeves and,
to an extent, Ms Elliott MP and Mr March, albeit not in so many words, distinguished between his
encouraging others to post the words as distinct to him using them. This was one of the factors that
most troubled Ms Elliott MP. The only occasions within the posts and tweets by Mr Lowther where
there is direct or overt encouragement (in fact a request) to others to post the phrase are those at
incidents 16 – 19 of Annex A over the time period 30/6/18 and 1/7/18. I am not satisfied that the use
of the words hang the old hag alone in the other communications (e.g. when criticising the previous
Court’s finding, drawing the comparison with the alleged words of John McDonnell MP) objectively
amount to encouraging others to use those words.

109. Again each of the “encouraging” communications at 16 – 19 of Annex A themselves are

within a context; here again repeating the asserted double standard comparison but also, as set out
in paragraph 102, that as a result of the relationship between Northumbria Police and Ms Elliott
and/or the local Labour Party and/or the then PCC Ms Baird QC, Northumbria police had perpetuated
this double standard, that this should not be allowed to continue and that effectively a “test” of the
relationship between Northumbria Police and Julie Elliott MP would be for others to post the same
phrase to see what the police would do if large numbers did. The communications set out this
context and note that it is some form of protest and clarify with the reader that the purpose and the
request is to do that and “nowt else” or “nothing more nothing less”. Within the tweets shown at
incidents 20 – 22 of Annex A there is no such request but again Mr Lowther sets out his arguments re
double standards and collusion between the police and Julie Elliott MP and specifically at 22 of Annex
A on 1/7/18 “@sajidjavid @northumbriapol @NorthumbriaPCC @JulieElliottMP So we are
understanding each other Charlie Rafferty was found guilty for Malicious Communication for saying
hand the old hag but McDonnell wont even apologise!!!” and then attaching a link to a newspaper
article about John McDonnell entitled “John McDonnell refuses to apologise for “Lynch Esther
McVey” comment”.

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110. The issue of what amounted to menacing was considered in Chambers v DPP [2012] EWHC
2157 (Admin) [29 – 31] including consideration of DPP v Collins in which it was observed by Sedley LJ
that in the context of a menacing message “fairly plainly it is a message which conveys a threat – in
other words, which seeks to create a fear in or through that recipient that something unpleasant is
going to happen” and went on a [31] “Before concluding that a message on the basis that it
represents a menace, its precise terms, and any inferences to be drawn from its precise terms, need
to be examined in the context in and the means by which the message was sent”. Whilst the
communications show that the words “hang the old hag” were repeatedly used by Mr Lowther in
tweets and posts over the relevant period they were not in my view used in a way or context that
meant their use could properly be described as menacing. I am not satisfied that it can properly be
said that he repeatedly published a menacing message by use of those words.

111. That does not bring a close to the matter. Firstly I have already determined that the
posts/tweet including this phrase formed a course of conduct alongside other posts/tweets referring
to other topics. Second, there may be other reasons that mean the relevant posts/tweets alone or
with others may still amount to harassment. There is no requirement under the 1997 Act for any or
some of the acts that form the course of conduct allegedly amounting to harassment to be menacing,
whereas that is one of a number of alternative requirements under s127 Communications Act 2003
that CR was convicted of.

112. The second subject or topic referred to in the charge is that Mr Lowther “repeatedly alleged
that Ms Elliott was guilty of perverting the course of justice”. Within my consideration of this topic I
have included references to the creation or production of fake evidence and providing the same to
the police.

113. Again the specifics and the context matter. First, the background. This topic or subject matter
relates to the alleged IM Facebook post from 2017 the detail of which I have already covered in
(paragraph 6.9 and 35). This trial of Mr Lowther proceeded on the basis that the “fake evidence”
referred to in the relevant posts/tweets was the screen shot of the post allegedly made by IM and
the references to Ms Elliott MP perverting the course of justice were to Mr Lowther alleging she had
a role in the creation and/or production of that screenshot.

114. In essence the prosecution against IM did not proceed because, his having raised and
disputed the provenance of the screenshot of the Facebook post he had allegedly made, the Crown
could not prove that he had authored and/or posted the Facebook post concerned in that form.
There was the possibility (or certainly sufficient possibility of reasonable doubt such that the Court
would not convict) that the screen shot was either an edited version of the original Facebook post or
had been created as a false representation from the outset and so the proceedings were brought to a
close. Whilst no doubt he had his own view about the provenance of the screenshot, DS Reeves was
realistic and candid enough to readily accept there were two options which the discontinuance of the
proceedings reflected:

114.1 The post had been authored, created and posted by IM as it appeared in the screen
shot

114.2 The screen shot was one way or another a “fake”

115. Mr Lowther’s expressed view in his posts and tweets that it was a fake was nothing more
than one of the possibilities that could not be discounted by the police and the CPS. As Mr Myerson
QC readily conceded, Mr Lowther went a step further to then allege that Ms Elliott MP or someone
on her behalf was responsible for the creation or production of the fake evidence. That may of

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 course seem far fetched and I accept the evidence of DS Reeves that the police internal enquiry
about this investigation revealed no concerns about any wrongdoing by Ms Elliott MP, her son or her
office. But once Mr Lowther was aware one option was that the evidence was in some way fake,
given the content of the message and that the complaint from Ms Elliott’s office, that a copy of the
screen shot was provided to the police from Ms Elliot MP’s office, it is not entirely difficult to see the
background on which he has based his opinion, regardless of whether or not others would have
made the same leap. It is not necessary to equate an arguable or legitimate proposition or point of
view with one that is correct. On the other hand even if accepted that it was a logical or reasonable
criticism, complaint or accusation to make that doesn’t prevent it forming part of a course of conduct
that amounts to harassment depending on all of the circumstances. Reasonable is not necessarily
correct. An expression of a reasonable or indeed correct point of view, argument or proposition can
still amount to harassment.

116. The charge is specific in its wording about this subject area, that Mr Lowther “repeatedly
alleged that Ms Elliott was guilty of perverting the course of justice”. Within the relevant
posts/tweets there are numerous references to fake evidence and perverting the course of justice. A
significant number of them refer specifically to Ms Elliott MP’s office as creating or producing the
fake evidence and this is notably different to other posts referring to Ms Elliott herself and it is
apparent that the communications distinguish between the two. Ms Elliott herself drew a distinction
between herself and her office at times in her evidence. Across the evidence I heard it was clear that
the office consists of a number of employees. Ms Elliott MP’s staff at that time included her son
Miles Elliott. In at least one tweet/post each both Mr Lowther and IM accuse Mr Elliott of being
responsible for the fake evidence and it was Mr Elliott that the police dealt with on this matter.
Indeed when giving her evidence on another matter, Ms Elliott MP said, whilst she had not sought
legal advice about a civil action, her son had. In her closing Ms Masters referred to these allegations
being repeatedly made against Ms Elliott MP and her son.

117. It is not just semantics. Ms Elliott MP and her office are of course inter related and things
said about her office may impact on her as an MP. But in terms of their actions Ms Elliott MP is not
the same as her office, or her staff (whether collectively or individually), or her son. When Mr
Lowther accused Ms Elliott’s office or her staff or her son of having done something, it is not the
same as, and cannot be equated with, alleging or accusing Ms Elliott MP of having done something.

118. There are also tweets/posts in which the allegation clearly refers to Ms Elliott MP. As well
some of these overtly alleging Ms Elliott (and her son) had perverted the course of justice and
produced fake evidence, some cover a range of related content – asking when Ms Elliott will face
prosecution, expressing dissatisfaction in about the way in which the internal police investigation or
enquiry about how the IM case had been dealt with was resolved locally, commenting that Ms Elliott
will be upset when she is investigated. Where the communications are tweets they tag the handle
@JulieElliottMP but also all tag other handles. The other handles chosen appear to depend on the
precise subject matter and then whether the handle is for a person or organisation of relevance.

119. The final topic or subject matter referred to in the charge is that Mr Lowther repeatedly
accused Ms Elliott MP of conspiring with other (sic) to use Northumbria Police as a personal police
force. Whether this should have read “conspiring with another” or “conspiring with others” I am not
clear. Either way, again the charge wording and the specifics of the posts/tweets relied on merit
some more detailed consideration.

120. A number of the posts that I assume are said to fall into this category actually refer to the
asserted politicisation of, political interference within and control of Northumbria police by the Police
and Crime Commissioner (PCC) without reference to Ms Elliott MP or her office. For explanatory
purposes the then PCC for Northumbria was Ms (now Dame) Vera Baird QC. Ms Baird QC was

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 elected to the post of PCC for Northumbria in 2012 and remained in post throughout the relevant
period of these tweets/posts. She was formerly a Member of Parliament representing the Labour
Party and represented that Party when elected as PCC. The general tenor of the earlier
communications related to this subject area is that this criticism is directed primarily to the PCC and
the Labour Party.

121. A number of the posts refer to Northumbria Police being corrupt or protecting Ms Elliott MP.
Others refer to Northumbria Police being controlled by, influenced by and having an inappropriate
relationship with the Labour Party more generally or locally, sometimes specifically the Labour Party
“of Sunderland”. Again by way of explanation, 3 parliamentary constituencies cover parts of the city
of Sunderland; Houghton & Sunderland South, Sunderland Central and Washington & Sunderland
West. At the relevant time each had MPs representing the Labour Party. Sunderland City Council was
Labour controlled. Whilst the attention of the posts/tweets relied on in this case often refer
specifically to Julie Elliott MP and the office of Julie Elliott MP they also often refer to in one way or
another to the local Labour Party and the Labour Party in Sunderland. Given the political make up of
the parliamentary constituencies in Sunderland and the City Council it cannot be said that every
reference to either the “local” or “Sunderland” Labour Party is a reference to Ms Elliott MP or her
professional office.

122. Some of the posts/tweets refer to the political motivation for investigations and questioning
of Mr Lowther and the political nature of questions asked of him. Questions asked in the interviews
of Mr Lowther that I have seen transcripts of cover a wide range of issues. Whilst no criticism is made
of this, it is not difficult to see how some are seen by Mr Lowther being of a “political” nature as set
out in the attachment to his tweet of 2/10/20 at incident 39/40 of Annex A.

123. It is correct that within the posts/tweets of relevance to this topic Ms Elliott MP is also
specifically referred to as well as her office. Reference is also made to Northumbria Police being the
“personal” or “private” police force of Ms Elliott in 5 of the communications.

124. On one occasion (incident 36 a tweet on 23/9/18) the word “complicit” is used. In another
(incident 21 a tweet on 1/7/18) the word “colluded”. That is the closest any tweet or post came to
alleging that Ms Elliott had “conspired” with another/others. Those tweets then referred respectively
to Mr Lowther being arrested numerous times and the prospect of AP being prosecuted rather than
being complicit or colluding with Ms Elliott MP to use Northumbria police as her personal police
force. In two (19 and 27) there is reference to being “assisted” by the then PCC. They also include
assertions that Northumbria Police had failed to investigate Ms Elliott MP’s involvement or otherwise
in the creation or production of the alleged fake evidence and perverting the course of justice. Also
that Northumbria Police had been involved in a cover up in relation to her alleged actions and had
pursued other prosecutions at her instigation.

125. On occasions within the tweets relating to this subject matter, the Twitter handles of
Northumbria Police, Julie Elliott MP and the PCC are tagged in the same tweets. In my judgment this
is not sufficient to amount to an inference of them all being accused as being involved in a conspiracy
with each other for Ms Elliott MP to use Northumbria Police as her personal police force and, in any
event, not to the criminal standard of proof.

126. The charge wording is specific. The use of “conspiring with other” necessarily imports an
element of joint planning between her and other(s) to do this not just that she does use Northumbria
Police as such, not a series of alleged inappropriate actions and motivations of various individuals or
organisations. Furthermore, he is charged that he “repeatedly accused” Ms Elliott of doing this. I
have set out above an overview of the relevant tweets and posts. There is no tweet or Facebook
post, never mind repeated ones, in which Mr Lowther outright alleges that Ms Elliott MP conspired

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 with another or others (whether or not named/by Twitter handle) to use Northumbria Police as a
personal police force. It is possibly not surprising that in Ms Masters closing submissions this subject
matter was referred to as simply “using” Northumbria Police as a personal police force rather than
conspiring with other(s) to do so. An allegation that Ms Elliott MP “used” Northumbria Police as a
personal police force is an is little more than a turn of phrase, reflective of his view of their
relationship based on Mr Lowther’s assessment of each of their actions. An allegation that Ms Elliott
MP conspired with others to do so is far more sinister.

127. As well as the specific nature of the messages there are other factors of relevance.

127.1 Overall this category of communications are robustly critical of others as well as Ms
Elliott MP – arguably more so and more overtly of the then PCC. There is something of a
scattergun approach.

127.2 As with the fake evidence/perverting the course of justice subject matter, here when
tweets are sent they invariably include tags for a number of twitter handles. Again the
twitter handles chosen appear to reflect the specific content of the tweet and – setting
aside any issue of the inherent likelihood or otherwise of the assertion being correct – to
be the handles of people or bodies that one might assume would have a legitimate
interest in an allegation of this nature often in the context of some form of investigatory
or oversight role or body.

127.3 Again, here as I have considered with other subject matters there is at least some
relevant background on which it appears Mr Lowther regardless of the accuracy of his
assessment or conclusions. Ms Elliott MP was not investigated in relation to any
allegation of creating false evidence. I do not suggest she should have and I readily
accept the evidence of DS Reeves that the internal police enquiry about how the IM
investigation had been conducted revealed no wrong doing at all on the part of Ms Elliott
MP or her office. But from Mr Lowther’s stand point, the context is a criminal
prosecution of relevance to Ms Elliott MP being discontinued after the provenance of
evidence supplied to the police from her office was questioned. It is also correct that on
her or her office’s complaint various people – including him on more than one occasion -
have been investigated by the police for various alleged criminal offences whether or not
they have resulted in successful prosecutions. It appears to me that, where used in the
communications the words a “personal” or “private” police force are indicative of Mr
Lowther using short hand for what he considers to the be the relationship between Ms
Elliott MP and Northumbria on the basis of his assessment of each of their actions.

H. EUROPEAN CONVENTION ARTICLE 10 FREEDOM OF EXPRESSION

128. Mr Myerson QC submitted that in this case Mr Lowther’s Article 10 European Convention
rights to freedom of expression and therefore s3 of the Human Rights Act 1988 were engaged. They
are both set out at paragraphs 13 and 14

129. I am satisfied that the comment made by Mr Lowther in the tweets and posts relied on come
within the explanation of the Article 10 right to freedom of expression set out in Article 10(1). They
are comments of expressed opinions and information by a constituent about their Member of
Parliament and other politicians, public people and organisations. Whether or not the opinions set
out within those comments are correct, based on the assessment of information available to Mr
Lowther, they:

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 129.1 Allege inequality of treatment of certain individuals including other public figures by
legal and political establishments.

129.2 Include alleged public statements by another public figure.

129.3 Comment on the judgment of a public criminal court.

129.4 Allege the creation of false evidence in support of a criminal investigation by a

Member of Parliament.

129.5 Allege inappropriate relationships between a Member of Parliament and

Northumbria police.

129.6 Allege the creation of fake evidence in support of a criminal investigation by a

Member of Parliament and the existence of an inappropriate relationships between that
Member of Parliament and Northumbria Police.

130. I am satisfied that a prosecution by the Crown Prosecution Service and the criminal
conviction of Mr Lowther for an offence of harassment said to have been committed by this on line
comment is an interference with his right to freedom of expression by a public authority. It was not
submitted otherwise by the Crown.

131. I am satisfied that the stated aim of the prosecution namely the protection of Ms Elliott MP
from harassment is a legitimate aim. It falls within the scope of the “protection of the reputation and
rights of others”. It was not submitted otherwise by the defence.

132. For the above reasons if I were to consider convicting Mr Lowther of the offence charged I
must undertake the assessment set out in Scottow v CPS [2020] EWHC 3421 (Admin) [35] (see this
judgment paragraph 20) as to whether his conviction is shown to be “necessary in a democratic
society” and in so doing to consider whether the prosecution and conviction of Mr Lowther for an
offence of harassment is a proportionate response. In undertaking that assessment it is necessary to
acknowledge the proposition that free speech encompasses the right to offend and indeed to abuse
another. Further there is no requirement or threshold requiring the speech or publication or
comment to amount to or contribute to a “proper debate”.

133. Within the Article 10 assessment the burden of proof remains with the Crown; can the
Crown satisfy the Court that the Defendant’s Article 10 right should be disengaged. Or, put another
way, notwithstanding the provisions of Article 10 that the defendant should be convicted.

134. Ms Masters referred to the tension between Mr Lowther’s freedom of expression and the
1997 Act again addressed in Scottow [24 vii and viii] when referring to the judgment of Nicklin J in
Hayden v Dickenson [2020] EWHC 3291 (QB). The tension was described as arising as the 1997 Act
prohibits harassment which includes “alarming the person or causing the person distress” whereas
Article 10 expressly protects speech that offends, shocks and disturbs commenting that “freedom
only to speak inoffensively is not worth having.” That judgment continues “..consequently, where
Article 10 is engaged, the Court's assessment of whether the conduct crosses the boundary from the
unattractive, even unreasonable, to oppressive and unacceptable must pay due regard to the
importance of freedom of expression and the need for any restrictions upon the right to be necessary,
proportionate and established convincingly.”

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135. It was not argued by the Crown that the European Convention Art 8 rights to respect for
private and family life of Ms Elliott MP needed to be balanced against the Article 10 rights of Mr
Lowther. This presumably because on the basis of the material relied on by the Crown and the basis
on which the case was put the focus was on Ms Elliott MP’s public role not her private life. Mr
Myerson QC did flag the issue but really only to dismiss it as a balancing exercise that was not
required in this case for those reasons. Given the circumstances of this case I do not consider that
balancing exercise is necessary.

136. Mr Myerson QC submitted that given the starting proposition was Mr Lowther was entitled
to say what he had, the approach the Crown should have taken was to identify the legal basis for
saying he had lost that right – to justify the interference with his right to freedom of expression - and
that they had not done so.

I. CONCLUSIONS AND DECISION

Findings

137. For the reasons set out in this judgment, to the extent that it has been necessary for me to
make findings over and above the agreed facts set out at the beginning of this judgment at paragraph
6 they are set out below:

137.1 I am satisfied that the tweets and posts within DR17 and DR19 amount to a course of
conduct and that course of conduct continued beyond 22nd September 2018

137.2 I am not satisfied that Mr Lowther repeatedly published a menacing message, or

given Ms Masters’ closing submissions, that he repeatedly published such a message or
encouraged others to do so. He did repeatedly use the phrase or words hang the old hag
in Twitter and Facebook communications that he accepted he was responsible for. They
were not menacing in the context of how he used them.

137.3 I am not satisfied that Mr Lowther repeatedly accused Ms Elliott MP of conspiring

with other (sic) to use Northumbria Police as a personal police force.

137.4 Mr Lowther did on a number of occasions within the relevant communications

accuse Ms Elliott MP of perverting the course of justice and/or creating fake evidence
(albeit I understood them to be one and the same accusation). He also made the same
accusation against her office and her son.

137.5 To the extent that it is relevant I am not satisfied that all of the impact described by
Mr March and Ms Elliott MP in their evidence is attributable to the actions of Mr Lowther
that were relied on in the Crown’s case. This includes the level of distress described, the
practical security measures described and the impact on Ms Elliott’s reputation
measured by comments from other constituents and her polling in the 2019 general
election.

137.6 I am satisfied that there were other Twitter and Facebook communications by Mr
Lowther in the relevant period. I have seen some of them. On the basis of the evidence
available to me I cannot make an accurate assessment of that volume or the content of
the balance and how it may relate to the charge wording in this case. I cannot be
satisfied I can conclude that they relate to the categories or subjects within the charge.

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 137.7 I am not satisfied that Ms Elliott MP’s contemporaneous actions at the times of the
communications are indicative that she did not take them seriously albeit this may have
been alongside other activity not relied on by the Crown.

137.8 I am satisfied Ms Elliott MP did see the communications relied on by the Crown on or
about the dates they were tweeted or posted. I am satisfied that Mr Lowther anticipated
she would do so either by seeing them herself initially or them being brought to her
attention by others.

The charge

138. For each of the 3 subject matters or topics identified in the charge I have undertaken an
assessment of the contents of the relevant communications against the charge wording. I was careful
at paragraphs 56.7 (a) to (f) when considering which communications fell within each of the three
subject areas to use the words “are related to”. This because it was not always clear – for the reason
I have set out – that they could properly be described as communications falling into the subject
matters set out in the charge. I acknowledge that it is not practicable in a case of this nature for the
charge to particularise the specific wording of every communication but a charge of harassment must
be properly particularised in the information (see Blackstones Criminal Practice 2021 at B2.185
referring to C v CPS [2008] EWHC 149 (Admin).

139. The words in the charge were presumably chosen carefully. Presumably they were designed
to convey a particular mischief and, in both the use of “menacing message” and “conspiring with
other”, arguably a more serious mischief than others words might have conveyed. It was I thought
illustrated in Ms Masters’ closing submissions that I have already referred to.

140. As I have progressed with this judgment this issue has troubled me about whether the Crown
could properly be said to have started to prove the case against Mr Lowther to the requisite
standard. But I do recognise that there is the possibility of a counter argument; that one could stand
back and look at it more in the round rather than the detail and say the words within the charge are
intended to be general groupings and their general, if not literal, meaning is self-explanatory.
Furthermore, whilst the communications did include allegations against others that they had
perverted the course of justice they did also make that allegation against Ms Elliott MP on a number
of occasions which was another subject area within the charge. Also this is not something on which
submissions were made at the trial and has become more apparent to me as I have been preparing
this judgment. For those reasons and in case I would be wrong on that interpretation of the issue of
the charge wording, I have gone on to consider whether or not the course of conduct that I have
determined did exist amounts to harassment. In that assessment I have considered the
communications as they were evidenced in the exhibits rather than as they were described in the
charge.

Harassment

141. In her submissions Ms Masters firstly characterised the communications of Mr Lowther by

reference to what they were not – they were not healthy or genuine or proper political debate, Ms
Elliott MP is an experienced politician and she did not see them as such, they were not acceptable
nor appropriate, they would not be tolerated in another form. Then to what they were – so far as

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 reputational issues were concerned - that if enough mud was thrown some would stick, a blatant
misuse of social media, motivated by an intention to cause Ms Elliott MP alarm and distress and
reputational damage which they did and with a greater impact due to the platforms used, driven by
Mr Lowther’s sense of disgruntlement about the outcome of his complaint against the City Council,
that they were linked to the actions of others he was associated with.

142. Mr Myerson QC submitted that the tests set out by Ms Masters were not the relevant ones
in law and that the relevant threshold for a course of conduct to amount to harassment had not been
passed when all of the circumstances of the case were considered.

143. There is no objective standard or test of proper political debate. It would be wrong of me to
attempt to set one. More importantly though it is not necessary as this is simply not the test that the
1997 At or the relevant jurisprudence requires me to apply. There is no test that to amount to
harassment a communication or act must be menacing, nor that a legitimate or arguable point of
view (whether or not correct) could not amount to harassment.

144. The assessment of whether a course of conduct amounts to harassment is an objective one.
It may include causing a person alarm or distress but every case of a person being caused alarm or
distress does not amount to harassment. The conduct must be targeted and calculated in an
objective sense to cause alarm or distress and be objectively judged to be oppressive and
unacceptable. The assessment must draw a line between conduct which is unattractive and
unreasonable and conduct of a different nature – the word “torment” was used as an example in
Dowson [2010] or “oppressive” and “unreasonable” in Scottow [2020]. It has to reach a level of
seriousness that passes beyond irritation, upset, annoyance, and inconvenience. It is not defined by
any reference to a test of what amounts to proper, genuine or healthy political or other debate, nor
what another person’s subjective view of what that test might look like if it existed. It is not defined
by the qualification of the Defendant as a “political opponent” again however that might be defined.
There is no objective standard of proper political debate nor as Scottow [2020] makes clear is it
necessary to attempt to set one; there is no such relevant test, threshold or boundary.

145. I have considered carefully the factors I have set out earlier in this judgment each of
relevance but none determinative alone of the assessment of whether this objective threshold is
passed:

145.1 Ms Elliott MP’s role as an MP and the expectations the law says that places on her of
rigorous scrutiny and tolerance of criticism and comment.

145.2 The nature of the relationship between Ms Elliott MP and Mr Lowther.

145.3 The impact that Ms Elliott MP and Mr March said the communications had on her
and others and the limitations of that evidence to my assessment including in terms of
what and who Mr Lowther could be held responsible for, the restrictions on the relevant
communications relied on by the Crown, that charge related to harassment of Ms Elliott
MP only.

145.4 The asserted motive of Mr Lowther.

145.5 The platforms used, the form of communication and who was included in the
communications and how.

145.6 The role and relevance of others and the extent to which Mr Lowther can be (or not)
held criminally responsible for their actions in the context of the charge he faces.

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 145.7 The nature of the communications in general and in detail and here also the context
of the words used, the allegations made and the argument or point of view advanced
and, whether correct or not, the basis of any such argument or point of view. In doing so
I acknowledge that a legitimately held point of view does not necessarily mean its
communication cannot amount to harassment – it will depend on all of the
circumstances.

146. In considering the evidence I had made available to me, I am satisfied that the
communications of relevance to this case could objectively be described variously as unattractive,
irritating, annoying, inconvenient, and at times offensive. However, I am not satisfied so that I am
sure beyond reasonable doubt that in the context of all the relevant factors in this case that the
communications that formed the course of conduct crossed the boundary into what can properly and
objectively be described as oppressive and unacceptable such that they amounted to the criminal act
of harassment.

Article 10 Right to Freedom of Expression

147. On the basis of that determination under the 1997 Act alone I need not undertake the Article
10 assessment. However, in case I should be considered wrong in that determination I shall do so
briefly. I am satisfied for the reasons set out already that Mr Lowther’s Article 10 rights are engaged.
To convict I would need to be satisfied, based on the circumstances and facts of this case, that the
prosecution and conviction of Mr Lowther for this offence is a necessary and proportionate
interference with his right to freedom of expression of the opinions and arguments within the
communications in order to respond to aim of protecting Ms Elliott MP’s right not to be harassed.

148. Taking into account the nature of communications and all the other circumstances of this
case that I have already outlined in my assessment of whether it amounts to harassment within
domestic law. Taking into account my determination that the communications within the contexts in
which they were made did not cross the threshold into what is oppressive, unacceptable and
taunting and so worthy of criminal sanction, I am not satisfied that the interference sought has been
convincingly established to be a necessary and proportionate one to address a pressing social need.

Decision

149. For the reasons given in this judgment I am not satisfied that the offence charged is proved
beyond reasonable doubt. Accordingly I find Mr Lowther not guilty.

150. There are two final matters though. The facts of this case may have founded a prosecution
for other charges. Had they done so the outcome may have been different. Mr Lowther should not
doubt that. Furthermore, he is now in a position where he is arguably much more aware of the
impact Ms Elliott MP considers his and others’ activities of a similar nature have had on her, her staff
and her family. Presumably he is now more alert to the argument that others may in some way be
encouraged or fortified to act in response to his communications in a way that may also have adverse
consequences. At the very least there is something to be said about responsible use of social media
and I hope Mr Lowther gives that some consideration. In addition, it is not inconceivable that his
knowledge of the asserted impact of his actions may well be considered a relevant factor that a court
could take into account in undertaking an objective assessment of his intention or his purpose should
he face similar or other charges based on similar actions in the future. The objective assessment of a

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 person’s intent or purpose or indeed whether “a reasonable person in possession of the same
information would think that the course of conduct amounted to or involved harassment of another”
will always be determined on a case by case basis and be fact dependent. This acquittal is in relation
to this charge, and an application of the legal principles relevant to it and to the evidence on which
the Crown relied. It is not an indication of any determination that may be made in any other case
faced by Mr Lowther nor any other Defendant charged with the same or an alternative charge in
similar circumstances.

151. Mr Myerson QC suggested I may think Mr Lowther was “pig headed”. It is not the necessarily
the word I would choose to use. Whilst Mr Lowther has been acquitted, he should not take from that
any encouragement that I agree with either the arguments he advanced or the allegations he made
nor any sense from this judgment that I have formed a positive impression of his accepted actions
nor those of some of the other people referred to in this case.

District Judge (Magistrates’ Court) Kate Meek

19th March 2021

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