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Pictured: Celtic fan, 35, charged over ‘offensive’ tweet about Captain Tom Moore

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A Celtic fan has denied sending an ‘offensive’ tweet about Captain Sir Tom Moore that read ‘burn, auld fella, buuurn’ a day after the war hero and NHS fundraiser’s death. 

Joseph Kelly, 35, from Castlemilk in Glasgow, allegedly tweeted on February 3: ‘The only good Brit soldier is a deed one, burn auld fella, buuuuurn.’ He was later charged under the Communications Act 2003. 

The move sparked an outcry led by Laurence Fox, who questioned why police were using the legal system to prosecute ‘idiots who tweet idiotic things’, as he urged everyone to ‘protect free speech, even if you don’t agree with what’s being said’.     

It comes as the SNP continues efforts to introduce a new hate crime bill that will criminalise ‘stirring up hatred’ – a ‘vague’ definition that critics believe could legalise cancel culture.

Kelly

Joseph Kelly, 35, from Castlemilk in Glasgow, allegedly tweeted on February 3: ‘The only good Brit soldier is a deed one, burn auld fella, buuuuurn.’ He was later charged under the Communications Act 2003

Kelly denies sending the tweet - pictured - which came a day after the war hero's death in hospital

Kelly denies sending the tweet – pictured – which came a day after the war hero’s death in hospital 

Kelly – who has posted photos on Facebook showing him holding a Celtic scarf – was not present when the case called at Lanark Sheriff Court yesterday and a not guilty plea was submitted by lawyer Archie Hill on his behalf.

The Communications Act – which was passed by the British Parliament but also applies in Scotland – criminalises ‘electronic communications’ that are ‘grossly offensive or of an indecent, obscene or menacing’. 

What is the Communications Act 2003? 

The Communications Act was passed by the UK Government but has been incorporated into Scottish law. 

The legislation states: ‘A person is guilty of an offence if he 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.’ 

People can be charged with the offence in Scotland up to three years after any allegedly ‘offensive’ communication.  

Recently, it was used to charge Sergeant Geraint Jones, of Devon and Cornwall Police, after he was accused of sending a ‘grossly offensive’ doctored image of George Floyd’s arrest in the US with other officers in work WhatsApp group. 

He has denied sending the message and the case will go to trial. 

Recently, it was used to charge a policeman accused of sending a ‘grossly offensive’ doctored image of George Floyd’s arrest in the US with other officers in work WhatsApp group. 

He has denied sending the message and the case will go to trial. 

The charges against Kelly state: ‘On February 3 2021, you Joseph Kelly did cause to be sent by means of a public electronic communications network a post to the public using social media that was grossly offensive or of an indecent, obscene or menacing character, and that did utter offensive remarks about Captain Sir Tom Moore, now deceased.’

Sheriff Nikola Stewart set an intermediate appearance for Wednesday May 19 before a trial date of Thursday June 17.

Sir Tom, who captured the hearts of the nation with his fundraising efforts during the first coronavirus lockdown, died in Bedford Hospital on February 2 after testing positive for Covid-19.

He walked 100 laps of his garden before his 100th birthday, raising more than £32 million for the NHS.

The move to charge Kelly was announced earlier this month, prompting a backlash on freedom of speech grounds. 

Laurence Fox tweeted: ‘The police should be free to do their jobs, which is investigate actual crime, not arresting idiots who tweet idiotic things.

‘Freedom of speech is the cornerstone of any open society. Protect it, even if you don’t like or agree with it.’ 

One libertarian Scottish Twitter user wrote ‘my country is a joke’ next to an article announcing the charge. 

Politics lecturer Adrian Hilton wrote: ‘Unless this tweet threatened violence or incited civil unrest or some other kind of harm, I’d very much like to know why this man has been arrested. We have a right to be ‘offensive’, and that’s a high bar…’ 

It comes as the SNP continues attempts to introduce a controversial new hate crime law that would criminalise ‘stirring up hatred’. 

Sir Tom, who helped raise tens of millions for the NHS during the first national lockdown, died in hospital on February 2 

Senior lawyer Thomas Ross, QC, is one of the most high-profile critics of the SNP’s hate crime bill. 

He warned it would be ‘impossible’ for Scots to know if they had committed a crime, which could lead to debate on controversial subjects being stifled.

He believes laws are already in place to deal with those who commit hate crimes, while the vague language used in the Bill could lead to serious offenders being acquitted.

Serious concerns have been raised, including over vague language and reference to ‘inflammatory material’.

Lawyers, politicians, campaigners and religious groups believe the law could have a devastating impact on freedom of speech.

In particular, they believe a section referring to the ‘stirring up of hatred’ signals that someone could be charged over comments perceived to be offensive, even if this is not intended.

Laurence Fox led the free speech backlash against the decision to charge Kelly earlier this month, while one libertarian Scottish Twitter user wrote 'my country is a joke' next to an article announcing the charge today

Laurence Fox led the free speech backlash against the decision to charge Kelly earlier this month, while one libertarian Scottish Twitter user wrote ‘my country is a joke’ next to an article announcing the charge today

There are also concerns people could be prosecuted for possessing ‘inflammatory material’ – which could include books, blogs, leaflets or social media. Those who share, forward or repeat such material could also face charges.

Mr Ross said: ‘If the Scottish Government is going to create an offence that can be committed unintentionally, drafters of the legislation have to make the essentials of the offence crystal clear. They’ve failed to do that.

‘The language used in the Bill is so difficult to understand that it will be impossible for the man or woman in the street to know when the line is likely to be crossed.

‘A person might think, ‘I don’t intend to be offensive and I don’t think this comment is abusive, but what might a mythical sheriff think about it if the procurator fiscal is persuaded to prosecute? Why take the chance’.

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