A man who said Captain Sir Tom Moore should “burn” the day after the 100-year-old fundraising hero died has avoided a jail sentence.
Joseph Kelly, 36, of Castlemilk, Glasgow, was found guilty of sending a “grossly offensive” tweet and was handed a community payback order on Wednesday - comprising 18 months of supervision and 150 hours of unpaid work.
On 3 February last year, Kelly said that “the only good Brit soldier is a deed one”. “Burn auld fella, buuuuurn,” he added.
At his trial in Lanark Sheriff Court, Sheriff Adrian Cottam told Kelly he passed the “custody threshold” but there is a presumption against prison if there is an alternative.
He said: “My view is, having heard the evidence, that this was a grossly offensive tweet. The deterrence is really to show people that despite the steps you took to try and recall matters, as soon as you press the blue button that’s it.
“It’s important for other people to realise how quickly things can get out of control. You are a good example of that, not having many followers.”
His defence agent, Tony Callahan, said the 36-year-old had only a handful of followers when he posted the tweet and had not anticipated how widely it would be shared.
Kelly quickly made efforts to take down the tweet, he told the court, adding it was only live for 20 minutes.
Mr Callahan said: “He accepts he was wrong. He did not anticipate what would happen. He took steps almost immediately to delete the tweet but the genie was out of the bottle by then.
“His level of criminality was a drunken post, at a time when he was struggling emotionally, which he regretted and almost instantly removed.”
At one point in the trial Sheriff Adrian Cottam threatened to put Kelly in the cells if he did not stop shaking his head as prosecutor Liam Haggert spoke about Sir Tom.
Cameron Smith, defending, had argued the tweet could not be described as “grossly offensive”. While it might be “unpleasant” and “unsavoury”, he said, it did not pass the threshold.
He told the hearing the message was not about a protected characteristic, like race, religion, or gender, and did not incite violence.
Sir Tom, who captured the hearts of the nation with his fundraising efforts during the first coronavirus lockdown, died in Bedford Hospital on 2 February 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, and was knighted by the Queen in recognition of his efforts.
The charge under the Communications Act said Kelly made 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”.
After being found guilty at the trial, Sheriff Cottam said Kelly’s “gratuitous insult” about Sir Tom was made “with only offence in mind”.
“This is a man who had become known as a national hero, who stood for the resilience of the people of a country struggling with a pandemic and the services trying to protect them,” he told Kelly.
“His statute and the view of society towards him must be looked at in that light and therefore any comment likewise.
“What the accused chose to write, when and how it was said, can only be regarded as grossly offensive.”
