Markus Meechan, AKA Count Dankula. Image CC-BY-SA 3.0 extracted from video by Bunty King.

On 23rd April 2018 Markus Meechan, better known as Count Dankula, was sentenced to a fine of £800 for the publication of a YouTube video. In the video he had trained his girlfriend’s dog to raise its paw in what was meant to be a Nazi salute.

The case raises serious issues of free speech. I have to say when I go looking for comedy, I do not go looking for people training dogs to salute Hitler. I had never heard of Dankula until this controversy. Having said that, I do sometimes go looking for Monty Python. Remember the corpse eating sketch? The Life of Brian? Or what about this sketch by Stewart Lee and Richard Herring?

Should we really be criminalising bad taste jokes? Even the left-leaning Independent and other major publications like the Spectator say no.

The question that prompted this article though, from several people, is – can Dankula appeal? He has a GoFundme seeking appeal funds here and has raised £70,000 at the time of writing. I suspect that he will exceed his target by the end of the day. Readers may wish to contribute. Will he succeed? Is it worth it?

The facts of the case are undisputed. Meechan made the video. The only question at law is whether it was “grossly offensive” pursuant to s127 Communications Act 2003, which begins –

127 Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

The law must be read in conjunction with the principles of statutory interpretation and as far as possible the Human Rights Act 1998 (as required by s3 of the Human Rights Act). The Human Rights Act gives effect to the European Convention on Human Rights, which guarantees free speech.

The problem is that sections of the European Convention on Human Rights are really vague, whilst legislation elsewhere such as the 1st Amendment to the Constitution of the United States is really clear –

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Compare that to Article 10 of the European Convention on Human Rights –

“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.

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.”

There are a lot of “ifs” and “buts” in Article 10 of the Convention. In fact the first two sentences of the first paragraph are the “right” and the rest of it and the whole second paragraph are “ifs” and “buts”. The text of the exceptions are longer than the “right”. Who decides when the exceptions apply? Judges.

The purported Rights in the European Convention on Human Rights are to some extent, illusory. They are not inalienable rights but a mechanism to transfer power to unelected European judges and multinational bodies. If the European Court of Human Rights decides it is a breach of someone’s rights for a dog to raise its paw – then the United Kingdom must comply. For now.

I suspect that Dankula will win his appeal. I suggest readers contributing may find it a worthwhile risk. The conviction was a pyrrhic victory and an overreach that has even lost the support of mainstream leftists.

However in the long run the only way to protect free speech and other rights – real rights – is to replace the Convention with a British Bill of Rights interpreted only by British judges accountable to the British people. The text of the Bill needs to be unambiguous. Constitutional law that is ambiguous is not, in reality, law – it instead transfers the making of law to the judiciary of the day and their, “interpretation”.