An open letter to judge Jacqueline Davies

Slightly updated version

Judgement now available here: http://jackofkent.blogspot.com/2010/11/twitter-joke-trial-crown-court-judgment.html


12th November 2010

Dear Judge Davies:

I hope this letter finds you. I attended the hearing at Doncaster Crown Court yesterday where you denied the appeal of Paul Chambers against his criminal conviction under section 127 1(a) of the Communications Act 2003. I feel duty bound to inform you that I find not only your judgement but you yourself to be an affront to justice and a disgrace to the bench that you adorn. I do not have the judgement in front of me at this time, but the salient points are still clear in my mind. You have echoed the earlier judgement of the district court. That judgement can perhaps be described as hapless. The defence during that trial was not as robust as in this one and Judge Bennett clearly failed to understand some key points. You do not have his excuse. Your judgement is nothing short of sinister. There are two main points that I must take particular issue with in your illiberal and disgraceful judgement.

First, you make a point of saying that you find the appellant to be “an unimpressive witness.” I am quite certain that this is precisely what you said. I fail to see how a defendant in a criminal trial is required to make any specifically positive impression on a judge or jury when the burden of proof clearly falls to the prosecution. A defendant telling the truth under stress may fail to appear impressive. He may be looking for hidden traps in the questions posed during cross examination and doing his best to be cautious. This is only natural and quite expected. Truth may sometimes be stranger than fiction; however, most of the time it is singularly unimpressive. You have chosen to disregard the sworn testimony of a man who, as you put it, was previously of good character when he appealed to you quite honestly that he had no idea he could or would have been causing menace. You are prepared to do this because you seem unprepared to accept that a reasonable person might not see the menace. I will come to that.

It has been pointed out to you that Mr Chambers’ story has not wavered at any time since he gave his first interview to the police. You appear to accept this but dismiss the interview as self serving. You use the defendant’s above average intelligence and education, indeed his soundness of mind, as a weapon with which to bludgeon him. Your reasoning goes as follows: Mr Chambers has used airports and is aware of the heightened levels of security owing to the state of terrorist threat that we live under; Mr Chambers is an intelligent and well educated man of sound mind (reasonable person) who is a very savvy user of social networking sites; The “tweet” is very clearly menacing; Therefore, Mr Chambers must at the very least have been aware that it could cause menace. Is this how we go about determining mens rea? The actus reus is so clear as to be obvious to anyone? What is the point of requiring a guilty state of mind? It has been pointed out to you that nobody involved in the running of Robin Hood Airport took the “tweet” as a serious threat and that the airport was not in any way disrupted. It has been pointed out to you that the interrogating officer made a note giving his opinion that there was no evidence that the “tweet” was anything more than a jest made for only close friends to see.

It has been pointed out to you that none of Mr Chambers’ 690 timeline followers nor any other user of Twitter (apart from airport manager Duffield, who was duty bound to report it) was moved to take any action or make any communication with Mr Chambers after the “tweet”. You have chosen to disregard all of this evidence and instead to conjure an imaginary elderly couple who have booked a holiday and are due to fly out of the airport. This quite sensitive elderly couple might decide to search for Robin Hood Airport on Twitter and then be confronted by Mr Chambers’ tweet. You manage to convince yourself that this imaginary elderly couple would probably feel menaced. Your justification for taking this approach is that the precedent set by DPP v Collins requires that a message can be menacing without having ever been received. It is menacing as soon as it was sent. We cannot unfortunately ask this elderly couple whether they might have been menaced by such a message as this couple does not exist. But in order to take into account Mr Chambers’ status as a reasonable person when considering possible guilty intent, we must be prepared to accept that any and all reasonable persons would feel menaced. This is clearly not true, and I come to that now.

Second, as has already been alluded to, you assert that the bench is satisfied that the “tweet” made by Mr Chambers is obviously and quite clearly menacing and that any ordinary person would agree. [In fact your exact words were “menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed.” as reported here] How you managed to reach this conclusion is frankly beyond my ability to comprehend. Judge (as an ordinary and quite reasonable person I assure you), I have to tell you that you couldn’t be more wrong. Indeed, this statement is an insult to the hundreds and perhaps thousands of people who have given their time to write about this case and to donate money to the legal fund because they felt morally obligated to. We are talking about people like Graham Linehan, Stephen Fry, David Mitchell, Nick Cohen, Jonathan Ross and many other well known figures. We are talking about ordinary people like myself. Indeed, I take this statement as a personal affront and not lightly. I feel very strongly that it could easily have been me in the dock. Many others have expressed similar sentiments.  I wrote a strongly worded letter of complaint to the Crown Prosecution Service in March and later formed a support group on the networking site Facebook. We currently have several hundred members. 

Although these facts were not presented to you as evidence, you must have been aware of this situation because: We can presume that you are a person of sound mind with some intelligence and education as you are a Crown Court Judge; you almost certainly read the newspapers and/or watch television news programs as it is important for a judge to be well informed; you have had months to look at this case and the way that it has been received by the public; therefore, you must at the very least have been aware that this case has been very controversial. I think you may have even said as much in your judgement. It is likely that much of the support for Mr Chambers arises from the view that his action was not menacing. His lack of awareness of a truly menacing act would not have provoked such a strong reaction. If we accept this premise then there must also be at least some doubt that Mr Chambers is lying when he asserts that he was unaware of any menace. You must be absolutely convinced that the defendant is lying in order to uphold the conviction. This has not been proven to anything near an acceptable standard for criminal liability. Your failure to consider these circumstances causes me to question your impartiality and indeed your fitness for the bench.

From the moment I heard your judgement to deny the half-time submission I had a sneaky suspicion that this would not go the right way. You seemed to have already made your mind up. For most of the day I was shaking and felt physically sick. When you read out your judgement to deny the appeal I could not even look at you, such was my disgust. As I gazed down at the poppy pinned to my shirt I couldn’t help thinking of all the brave men and women who have given their lives fighting in various wars to preserve freedom and democracy. You let them all down on yesterday [Remembrance Day] of all days. You have practically criticized the defendant for having the temerity to bring his case before the appeal court. You have shown no sympathy for the financial ruin that he faces now. You frankly have the imperious attitude of a provincial judge who feels territorial about a case that is being defended by a team based in London. Judge, you have failed to deliver justice in this case. I feel it is not too strong to say that you have brought shame and ridicule on your profession, and you deserve for this single case to define your entire career. As the Chinese proverb translates, may you live in interesting times.

Sincerely,
Matthew Flaherty