Thursday, December 22, 2011
There's been no shortage of topics. No, indeed. In fact, that's part of the problem. It's a bit overwhelming to be honest. Where do I begin? I've got so much I want to say about America: NDAA, SOPA, Protect IP, drone attacks and plenty of others. There's lots to say about Britain. We're still seeing misguided prosecutions of speech-related offences wrapping up in court rooms. There has been a particularly disturbing trend in Scotland (which lacks the Serious Crime Act) of charging common law breach of the peace for remarks made online in places such as Facebook. Breach of the peace here is quite galling as it does not require the prosecution to prove intent.
In England and Wales, we have a Crown Prosecution Service that is increasingly zealous in its fight against "offensive" and "menacing" online communications. Nineteen year old Hollie Bentley was fortunately cleared of her charges under the Serious Crime Act for allegedly intentionally encouraging violent disorder in a Facebook event with the title "Wakey Riots" containing the message "Who's up for it? LMFAO". She should never have been prosecuted in the first place, as there was never sufficient evidence of intent. I have submitted a Freedom of Information request to the CPS asking them to explain how this case satisfied the evidential stage of their Full Code Test, but this has been refused. I will request an internal review and let you know how that goes. In February we will hopefully see the end of the Twitter Joke Trial case when its appeal is heard in the High Court (unless this is again postponed). I'm optimistic about this and look forward to a decent case law precedent that will force the CPS to exercise considerably more restraint when considering future prosecutions against people who simply make bad jokes online. Fingers crossed. Merry Christmas and happy new year.
Wednesday, November 9, 2011
Last night in London there was a special meeting of the Westminster Skeptics group devoted to the case of Paul Chambers, which is now popularly known as the Twitter Joke Trial. Having been a campaigner against the charges and the conviction since early on, I was invited to speak at the event. It was as good a meeting as any I've been to and there were lots of discussions afterwards.
I got talking with a couple of people, one of whom was fairly new to the case and was trying to understand how it could have gone so badly wrong. I described the judge at the Crown Court appeal, the "honourable" Jacqueline Davies, who presided over the trial with an imperious and impatient attitude. Someone asked me whether the judge had allowed tweeting in the court room. No, she certainly did not. In fact, when the court reconvened prior to the reading of the judgement, Davies revealed that she was annoyed to have learned about people tweeting details of the trial and issued a stern warning.
It was only last night that I finally put this together, and it made me angry all over again. Davies became annoyed when someone she interacts with (possibly one of the two lay magistrates at her bench) showed her updates on twitter that captured bits and pieces of the trial. She seemed to think that people were tweeting from within the court room as events happened, when in fact people simply wrote about the trial during the recess, as anyone is well within their rights to do. Perhaps some wrote updates after having excused themselves while the court was in session. This is also acceptable.
So poor was her understanding of Twitter that she couldn't get her head around the fact that someone could go outside the court room and write tweets about the trial which could then very quickly find their way onto her computer screen. The tweets were not meant for her, but she got hold of them anyway not long after they were sent and it made her angry. Someone might have instead used a telephone or a text message to communicate details to some third party and those messages would not have found their way to the judge. That would also have been fine of course.
Quite clearly judge Davies was not qualified to hear this case. If she is unable to understand even such a fundamental aspect of real time broadcast communication, she has no hope of understanding the more intricate mechanisms, both physical and psychological, involved in the dispatch and retrieval several days later of Paul's tweet. It is an ironic parallel. Just as a third party at Robin Hood Airport became unnecessarily concerned about a tweet that was not intended for him and of which he did not have the benefit of the full context, so did the judge become unnecessarily concerned about tweets not meant for her which she did not understand. She didn't appreciate how they were sent, when they were sent or why they were sent. To think she had the nerve to suggest that Paul must have realised the risk in what he was doing because he was an experienced user of Twitter!
Wednesday, October 19, 2011
He blamed "nervous" judges for refusing to accept assurances from ministers that such removals were in the national interest.
"I fully understand that [Daily Mail readers] have concerns about the Human Rights Act," he said. "There is a sense that it's a villains' charter or that it stops terrorists being deported or criminals being properly given publicity. I am greatly frustrated by this. Not by the concerns, but by some very few judgments that have thrown up these problems."
This system [special advocates] is designed to stop material that is sensitive for national security reasons from entering the public domain. The Government argues that it protects the methods of the security services by preventing the discovery of intercepts and undercover operatives, as well as protecting intelligence-sharing relationships with other international intelligence services.Now, special advocates (security-cleared barristers who do not share sensitive information with their clients) are perhaps acceptable in cases of deportation. They would not be acceptable however in criminal trials because of Article 6 (right to a fair trial). Deportation is hence the easy option for the government. But perhaps the national security concerns are unfounded after all. Perhaps the methods of the security services are in fact already well known to our enemies. It is difficult for the public to gauge the necessity for such secrecy when the information is by its very nature secret. Whatever the case may be, it is clearly not the sole fault of human rights legislation that we are often unable to satisfactorily process terror suspects.
To conclude this posting, I'd like to return to the present day and the attitudes of the current government toward the Human Rights Act. One of the most ridiculous things I've seen recently on this subject was an interview that David Cameron gave to the Andrew Marr show at the start of the Conservative Party Conference in which he restated his agreement with Theresa May that the Human Rights Act should be scrapped and replaced with a Bill of Rights (which comes as no surprise really as he campaigned on it and wouldn't have had the leadership without it). His justification for this position is just laughable:
He also said he wanted to change the “chilling culture” created by the act. He cited an example of a prison van being driven nearly 100 miles to be used to transport a prisoner 200 yards “when he was perfectly happy to walk”. “The Human Rights Act doesn’t say that’s what you have to do. It’s the sort of chilling effect of people thinking ‘I will be found guilty under it’.The Human Rights Act doesn't actually say that's what you have to do, but what the hell? People are confused about it so let's scrap it. Does confusion about what the Act provides suggest a problem with the Act itself? Why are people so confused about the Human Rights Act? Mr Cameron, please read Part II. Thank you. That Angry Mob article I link to above goes on to explain the real reasons why a prison van had to be driven 100 miles to transport a prisoner 200 yards. It turns out to be, and I am not making this up, due to the contractual obligations with a private transportation company. That's Tories for you.
Friday, October 7, 2011
With a so-called super-injunction, even reporting of the existence and details of the injunction itself would incur contempt. This is in addition to the facts or allegations that the injunction protects. Despite reports to the contrary, super-injunctions are now extremely rare. Only two have been granted since the landmark John Terry case in January 2010, according to a report by Lord Neuberger published in May 2011. Anonymised injunctions on the other hand, such as that obtained against Imogen Thomas and Newsgroup Newspapers Ltd, are quite common. The overwhelming majority of these cases involve blackmail threats. The report does acknowledge however that prior to Terry, super-injunctions were granted far too frequently, and that in some cases there was little incentive for the claimant to advance the case beyond the interim stage (a problem that has now been rectified by the decision in Terry v Persons Unknown). These super-injunctions are pre-trial interim injunctions that are designed to protect the integrity of the court's processes in cases where it is considered that media reporting of allegedly protected information (private or confidential) would obstruct the administration of justice at the pending trial. In paragraph 2.14 of his report, Neuberger sets out the difference between a super-injunction and an anonymised injunction as follows:
[A super-injunction is] an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, ii) publicising or informing others of the existence of the order and the proceedings (the ‘super’ element of the order).
This is to be contrasted with an anonymised injunction, which is: an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.In paragraph 2.16 of the report, he goes on to say "The inaccurate use of the term super-injunction to refer to anonymised injunctions, has not only led to a false view that super-injunctions are commonplace. It has also given rise to misconceptions as to how long super-injunctions endure. A claim that a superinjunction has been in place for a number of years adds credibility to the fear that a new form of permanently secret justice has arisen. Where, however, the injunction concerned is merely anonymised, and there is no prohibition on dissemination of the existence of the proceedings and order, such a claim is simply misleading."
Indeed! So you see, media companies hate super-injunctions and they want you to hate them too. In order to achieve this aim, they tend to refer to any case that gags them from reporting on a story as a "super-injunction". They tend to talk up the notion of secret courts interfering with open justice, but in reality the requirement from the Terry decision that super-injunctions and anonymised injunctions must generally contain a return date ensures that these orders are subject to review within a reasonable time frame and cannot in practice become permanent.
Turning once again to the Human Rights Act, we note that this is the United Kingdom's native implementation of the European Convention on Human Rights, a treaty which we are party to as an EC member state. The treaty established the European Court of Human Rights, which entitles any person who feels his or her rights have been violated by a state party to the Convention to bring a case before the Court. Judgements of the Court in favour of the claimant are binding on the States concerned, who are obliged to execute them. Having the Human Rights Act in place greatly improves the efficiency of our justice system by giving British judges a tool for applying the Convention jurisprudence to British cases. Without it such cases would have to be appealed to Europe at great expense and delay. It would be quite difficult, if not impossible, for a claimant to be awarded injunctive relief in time to prevent disclosure were it not for the Human Rights Act and the protection it affords to privacy. I believe this to be the single most compelling reason for newspapers to wish to cast the Human Rights Act in a negative light. Adam Wagner, a barrister specialising in human rights law, has published a series a blog posts detailing numerous incidents of mischievous human rights reporting.
The most recent example of HRA misreporting is the so-called "CatFlap" row which I wrote about in Part I. I can give no better example of this than the frankly scum-encrusted publication known as the Daily Mail. This was their lead story yesterday (6th October), claiming that in fact the judgement of which they had obtained a copy showed that Theresa May's statement was correct and Ken Clarke's was incorrect. As Adam Wagner once again demonstrates quite capably, this is complete and utter rubbish. [Oh, and as an aside, isn't it so classy of the Mail to reveal that not only was the Bolivian immigrant in question a shop lifter (though he'd not been charged), but he was also *gasp* gay! Completely irrelevant to the case of course, but sure to plant the right sort of suggestions in the mind of the typical Daily Mail reader.]
So yes, as far as the Mail are concerned (without providing any sources of course) the "Judge DID rule [the] migrant's pet was a reason he shouldn't be deported". The caption under a photo of the Home Secretary reads "Vindicated: Theresa May's comments on a man allowed to stay in Britain because of his cat have been proven correct". And they of course lay the blame with Article 8 and the Human Rights Act even though ultimately these had nothing to do with the decision to grant exceptional leave to remain. It is hard to understand how a mainstream publication can so repeatedly and so deliberately mislead its readers with complete impunity. I suppose that's one of the reasons we've gotten to the point where regulation of the press is looking very likely. But that's not going to help when politicians are also deliberately misleading us about what the Human Rights Act does and does not provide, which I will discuss in Part III.
*now defunct :)
Thursday, October 6, 2011
"We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat."The final example turns out to be one of the oft recycled myths propagated by opponents of the Human Rights Act, as Adam Wagner of The Guardian explains. Another person who realised that the Home Secretary's statement had no basis in fact was Justice Secretary Ken Clarke, who told the Nottingham Post that same day:
"It's not only the judges that all get furious when the home secretary makes a parody of a court judgment – our commission who are helping us form our view on this are not going to be entertained by laughable, child-like examples being given."This has predictably erupted into a political row between the two ministers, one of whom has been forced to apologise. That one unfortunately is the one who, as it turns out, was correct. The deportation of this individual was not disallowed because of his relationship with a cat, but because of his strong cohabiting relationship with a British citizen, evidence of which was only partly made up of their joint ownership of a cat. The unnamed appellant in this immigration case was represented by solicitor Barry O'Leary of Wesley Gryk Solicitors LLK, who felt impelled to issue a press release today clarifying the case. In his release, O'Leary states that his client was "not a foreign national prisoner nor had he been charged with or convicted of any offence." It turns out that ultimately the appellant was granted exceptional leave to remain in the United Kingdom against the objections of the Home Office because that office failed to apply a policy that had been withdrawn but which was in effect for the period of time under consideration in the case. That policy is DP3/96 of the UK Border Agency, which as O'Leary describes it stated that "individuals who had been in a relationship with a settled person for in excess of two years, and no immigration enforcement action had been take against them, could be granted exceptional leave".
It is true that the first appeal to the Asylum and Immigration Tribunal of the Home Office consideration was on Article 8 grounds (right to family life) and heard much evidence of the strong family ties of the appellant with his partner and that this evidence included some mention of their jointly owned cat; however, that fact alone was not the reason for the successful appeal. In the original decision by Immigration Judge Mr J R Devittie, he states in paragraph 12 (emphasis mine, hat tip to fullfact.org for the PDF of the judgement):
12. I do not consider that it would be reasonable for the appellant’s partner to move to Bolivia to live with him. There are several considerations that justify this conclusion. The appellant’s counsel addressed these matters in his submissions. The most important perhaps is the condition of the appellant’s partner’s father. The evidence of this appellant’s partner and his siblings is that their father is in a condition that he is not expected to recover from. They stated that a family decision has been taken to give their father collective support as a family and that support that the appellant’s partner would give is an integral part of that effort. It would be distressing to the appellant’s partner’s [sic] if he were to have to leave the United Kingdom having regard to his father’s condition.
The original appeal was granted on Article 8 grounds (ECHR as reflected in the Human Rights Act); however, in paragraph 17 the judge goes on to "take into account that the appellant appears to meet the requirements of policy DP3/96. In particular, his relationship and cohabitation predates enforcement action by two years."
The original appeal was granted on Article 8 grounds, however the case was ultimately decided by Senior Immigration Judge Gleeson in a further appeal. In his three page decision (ht David Allen Green), Judge Gleeson found that Devittie had acted properly in allowing the appeal because contrary to the arguments presented by the Secretary of State, DP3/96 did in fact apply, a position that was accepted by the Home Office Presenting Officer. Gleeson's decision supersedes Devittie's and so the Human Rights Act, though initially cited, played no part in the granting of leave to the appellant.
Why is this case important? It is important because it is only one of a number of cases that have been misreported in the media and by politicians in recent years with the aim of disparaging the Human Rights Act, as I shall explore in Part II.
Wednesday, September 14, 2011
Thursday, September 8, 2011
In a nutshell, instead of a suspect in custody being quickly provided with publicly funded legal advice upon arrest, s/he will have to make a written or oral representation requesting it, with a determination made by a civil servant. This is set out in clause 12(6), which states:
Regulations under subsection (5) may, in particular, include——
(b) provision permitting or requiring applications and determinations to
be made and withdrawn in writing, by telephone or by other
From the Guardian piece:Lawyers and bloggers such as The Defence Brief have been criticising the new legislation for months, though it's managed to mostly escape my attention until now. The Defence Brief argues that this type of legislation likely serves two purposes: "a) to reduce the legal aid bill by making it harder to solicitors to claim; and b) to increase the conviction rate by reducing the level of representation suspects receive." Worse than that though, these provisions will probably end up costing more by pushing up the administrative costs of funding legal aid and giving rise to lengthier legal arguments in court that certain interviews should be excluded because they were not properly conducted. It may even result in reduced conviction rates as more police interviews are likely to be excluded.
Nearly 1.5 million people are arrested every year. "Many will never have been locked up before, won't know how long the police can keep them, and have no idea what to do in an interview," says Professor Ed Cape, a law professor at the University of the West of England, and a Pace expert. As the academic explains, the right to silence was effectively abolished in 1994 and a failure to tell the police relevant details that may not come up in court until months or years later can serve as evidence of guilt. "However well the police behave, police stations are worrying, even frightening, places," says Cape. "The right to legal advice is now more important then ever, but with the planned cuts to legal aid, it's under threat like never before."
So it probably won't even achieve its stated objectives. Why would we want this legislation that effectively removes one of the most important safeguards in the criminal justice system? Simply put, if we can't afford to provide free legal representation when suspects are arrested, then we can't afford to arrest people. To place such obstacles in the path of access to basic legal advice is to undercut the fundamental presumption of innocence. I've said this a bazillion times; I'll say it again. The primary duty of law enforcement and the criminal justice system is to protect the innocent. Every single person who is arrested, no matter how persuasive the evidence, is innocent until a court pronounces guilt. Every single person is entitled to understand how police interviews work and how to avoid incrimination. Most people, especially those who regard themselves as innocent, will not know what to do when arrested. Everyone needs protection. Everyone deserves an advocate.
Wednesday, September 7, 2011
Section 60 Criminal Justice and Public Order Act 1994, gives police the right to search people in a defined area at a specific time when they believe, with good reason, that: there is the possibility of serious violence; or that a person is carrying a dangerous object or offensive weapon; or that an incident involving serious violence has taken place and a dangerous instrument or offensive weapon used in the incident is being carried in the locality. This law has to be authorised by a senior officer and is used mainly to tackle football hooliganism and gang fights.
A Section 60 and 60 AA authority has been put in place across London. The decision has been taken to support the pan London policing operations to keep the capital as safe as can be. The rationale is based on current police intelligence and in light of the disorder that was seen in London during 6 - 9 August 2011Hmm, no. Sorry, that doesn't cut it. The riots are a convenient excuse. A city should not be regarded as a locality for the purposes of that Act. To do so makes a mockery of it. Even the same publication makes a mockery of itself. Though I can no longer find that publication, I had quoted from it and it's almost exactly the same as the advice given in the FAQ, to wit:
Section 60 Criminal Justice and Public Order Act 1994, gives police the right to search people in a defined area at a specific time when they believe, with good reason, that: there is the possibility of serious violence; or that a person is carrying a dangerous object or offensive weapon; or that an incident involving serious violence has taken place and a dangerous instrument or offensive weapon used in the incident is being carried in the locality. This power has to be authorised by a senior officer.Here's what really gets on my wick about this citywide use of stop and search. In order for this legislation to be reasonable, a person needs to be able to avoid the area to which the order has been applied. Article 8 of the European Convention on Human Rights, which is implemented in Britain as the Human Rights Act 1998, protects our right to privacy. This would prohibit suspicionless searches under normal circumstances. The trouble with defining an entire city such as London as a locality is that for those who live and work in the city, there is no escape. If you look at a section 60 authorisation form (I can't find one at the minute), you can see the suggestions given to help specify the locality include such language as "street names". I wonder, did the authorising officers simply write "London" in that space? UPDATE: Here is an authorisation form courtesy of @piombo.
Unfortunately it seems that this provision in the Act is just another of these poorly worded disasters that can be manipulated by an authority seeking to expand its powers. This was hinted at in 2003 when the Metropolitan Police Authority published to its members further information about section 60 of the Act. See paragraph 7 (emphasis mine):
7. The term ‘locality’ is not defined, however the authorising officer should not set a geographical area that is wider than necessary for the purpose of preventing anticipated violence. The officer should take into account factors such as the nature and venue of an anticipated incident, the number of people who may be in the immediate area of any possible incident, their access to surrounding areas and the anticipated level of violence. If the area specified is smaller than the whole force area, the officer giving the authorisation should specify either the streets which form the boundary of the area or a divisional boundary within the force area.We can see that the MPA were aware that the Act did not define the term "locality" and hinted that a locality could be specified so that it encompasses the whole force area (such as London, for example). "Should not" - don't you just love that type of language? I can't understand how this was allowed to go unchallenged, but there it is and here we are. I think it's a disgrace and I'd really like to see this view challenged in court. The clear message I'm getting is that ever since the UK riots of August, the people (of London anyway) cannot be trusted to assemble. That's bullshit. The designation of an entire metropolitan area as a locality for stop and search cannot be what Parliament intended and it should not be tolerated.
ps - Sorry for the lack of updates. I've been a bit ill and frankly overwhelmed with all the things there are to write about. Had to just get over the inertia and get something down.
Saturday, September 3, 2011
Early in the investigation a staff nurse at the hospital, Rebecca Leighton, was arrested and then eventually charged with :
- Three counts of criminal damage intending to endanger life, and
- Three counts of of criminal damage being reckless as to whether life would be endangered.
CPS prosecutor Nazir Afzal said: “We have conducted a review of the case with senior police officers and sought the advice of leading counsel on whether it would be right to keep Rebecca Leighton in custody while investigations are continuing.
“The advice we have received is that on the evidence currently available there is not a case in law which could proceed and that the charges should be discontinued.
“As this is very much a complex investigation with lines of inquiry still being followed, there is the prospect that further evidence might emerge which the CPS would then consider alongside the evidence gathered so far.”
Thursday, September 1, 2011
Indeed, I'd say that at best this is an invasion of privacy. Going beyond that, it is also a breach of confidentiality in at least two respects: 1) unauthorised disclosure of the one's religious background; 2) unauthorised disclosure of a medical condition. This is bad enough, but also consider that we are talking about students who have done nothing to arouse any reasonable suspicion. We are talking about students who have not been charged with or even suspected of any crimes. We are talking about students who are simply vulnerable, a measure which relies heavily on some staff member's judgement. It gets worse.
Universities that agree to the renewed version of the scheme are trained to refer "at risk" students to Prevent officials. The student is then monitored by a panel including a detective from Scotland Yard, who assess any potential terror threat. The student is not made aware at any stage that they are under investigation.
Tuesday, August 30, 2011
"We really did see rapid and robust justice with offenders being arrested, charged, put before the courts and sentenced in days."This undoubtedly contributed to taking the momentum out of the disorder - but for the police and public it did raise the question as to why cases take so long to get to court in the normal course of events."
Thursday, August 25, 2011
Wednesday, August 24, 2011
It's as simple as that. As soon as anybody gets involved in social media, they immediately turn into hopeless, irretrievable dickheads. They lose about 50 IQ points, and begin delivering the most ill considered and moronic opinions.
I can give you some examples from my current favourite social network, Twitter:
Duncan Bannatyne famously called another user a (sic) "pheadophile" for daring to suggest that smoking in one's car with one's children in it isn't the worst crime known to man. This is an intelligent, successful man. Something's gone wrong in his brain there. Surely?
And what about Tory councillor Gareth Compton who posted:
"Can someone please stone Yasmin Alibhai-Brown to death? I shan't tell Amnesty if you don't. It would be a blessing, really."
Honestly. What a wanker.
Or Paul Chambers
"Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!"
Blowing up the airport isn't going to help your flight to leave on time, is it, you dozy twat?
And then there's me. Earlier today, one of my Twitter followers asked me for advice on how to stop his son picking at his skin all the time.
I suggested that his son take up smoking.
I am a dickhead. It's right there in black and white on Twitter if you need the evidence.
But. Has any of the above really done anybody any harm? There might be one or two bruised egos, or offended Twitter friends (sorry Adrian!) - but nobody actually died, right? Nobody got hurt? Sticks and stones, and all that.
We're currently looking at a whole bunch of prosecutions brought against other social media users who posted some really dumb shit on Facebook in response to the riots. In EVERY SINGLE CASE so far, nobody actually got hurt as a result of their stupid posts, and no crimes were committed as a result of those posts. In the majority of cases so far, it's pretty clear that the poster was making a bad joke.
So we're perhaps just looking at another collection of social media wankers who happened to stray into the firing line of a political hot potato.
But the point is: their conversation isn't any different to the content posted by 90% of the social media users out there. As a social media user, we see content like this, and we say to ourselves, "Oh, just another wanker like me".
And now the judicial system is weighing in on social media, and as soon as they've got involved, they've become wankers too. They've lost 50 IQ points, and started talking just as much bollocks as the rest of us.
So the obvious defence to anybody faced with a charge under the Serious Crimes Act or the Communications Act in the coming weeks is:
"Social media turned me into a wanker. And now it's turning you into a wanker as well. Your honour."
Tuesday, August 23, 2011
I will depart from cynicism just to say that I've never been more afraid for the health of free expression in Britain. This post is on the long side, but I urge you to read it fully as it explains many of the problems encountered with the application of the Communications Act to broadcast style internet communications. A 21 year old man has been convicted in North Wales of an offence under section 127 of the Communications Act 2003 and sentenced to 4 months in prison for a Facebook update that was live for 20 minutes. It has been reported here <http://www.walesonline.co.uk/news/wales-news/2011/08/23/man-jailed-for-four-months-over-facebook-attempt-to-start-riots-in-bangor-91466-29288008/> and here <http://www.bbc.co.uk/news/uk-wales-north-west-wales-14631184>. I have sent a query to CPS Wales seeking information about the nature of the prosecution.
DPP v Collins sets out a low threshold for both the actus reus and the mens rea. The act is committed so long as a qualifying message is sent via a qualifying public electronic communications network. It does not matter whether the message actually elicits the reaction in a recipient of being regarded as grossly offensive or of an indecent, obscene or menacing character. It would not matter in fact that the message is not received by anyone at all, except insofar as it is reported to the relevant authorities. The act of sending is sufficient. For mens rea, the Lords have also defined a strangely low threshold. While the Lords recognise that it is essential to examine any message within the context of a fair and just multi-racial society and to recognize that the meaning of a message can be quite different from its literal content, it is only necessary that the sender at the very least be aware that the message is couched in terms likely to be regarded as grossly offensive or of an indecent, obscene or menacing character.So unfortunately while DPP v Collins provides the necessary burden to prove intent, it severely scuppers the defence by removing the requirement that a message is actually received. It sets out the need to look at a message in context, but this is of little help as it has been interpreted very broadly. It requires mens rea, but only in a very narrow sense. Paragraph 11 of Lord Bingham's opinion is where we get into trouble:
"...On the other hand, a culpable state of mind willordinarily be found where a message is couched in terms showing anintention to insult those to whom the message relates or giving rise tothe inference that a risk of doing so must have been recognised by thesender. The same will be true where facts known to the sender of amessage about an intended recipient render the message peculiarlyoffensive to that recipient, or likely to be so, whether or not the messagein fact reaches the recipient...."
Thursday, August 18, 2011
“Within minutes, his friends on Facebook are condemning the words he has posted and telling him in no uncertain terms what a poor opinion they now have of him,” Miss Atkins said.
In response, the boy then posted a second message, saying he didn’t see the point of being pushed around by the police all the time.
The boy then entered into a debate with one friend in particular over the shooting of Mark Duggan in Tottenham on August 4 before admitting his comments had been ‘stupid’.
“We are all thankful that his friends were much more sensible than he was and did not react in any way that would lead to further comments in any shape or form,” Miss Atkins told the court.
Lady, are you serious? "Within minutes, his friends... are condemning the words ... and telling him in no uncertain terms what a poor opinion they now have of him." [Translation] Within minutes, his friends are busting his balls for being an "idiot". Anyone who uses Facebook or Twitter regularly knows that this sort of banter happens all the time.
"We are thankful that his friends were much more sensible than he was and did not react in any way that would lead to further comments in any shape or form..."
In police interview, the boy said he had only made the comments to ‘have a laugh’ and didn’t intend anyone to take the actions he had suggested.
David Stewart, in mitigation, said the boy had since realised he had been ‘inordinately foolish’ and recognised what an idiot he had been.
“His friends have a very poor opinion of him and he has a very poor opinion of himself,” Mr Stewart said.
“A lesson has been learnt.”It's as if the defence counsel has never heard of the Twitter Joke Trial. That's because he probably hasn't. Early on in that case the South Yorkshire Crown Prosecution Service (CPS) persuaded the defendant and his lawyer that there was no choice but to enter a guilty plea as Paul Chambers did not deny that he'd sent the offending communication. In other words, the CPS were of the opinion that this was a strict liability offence. This was despite case law from the House of Lords that required mens rea (guilty mind, or intent) to be proven. Had Paul been receiving good legal advice from the beginning, he would have entered a not guilty plea and the CPS would likely have dropped the case, because they felt there was insufficient evidence at that time to prove intent.
I wonder whether Mr Stewart believed this to be a strict liability offence and that the only possible plea was guilty. I wonder whether the West Suffolk CPS believed this as well. This case is an utter disgrace. The rush to early "justice" following the UK Riots has prevented this young man from gaining access to a robust defence. Had some lawyers that I am well acquainted with had the time to become aware of this case before it was heard before the Magistrates, they could have offered free advice that I believe would have drastically improved the outcome of this "trial". I can only hope that the facts I've examined here can form the basis of a successful appeal. This truly is Arsehole Justice in its purest form. Let me end on this tragic note from the Guardian coverage:
The boy's mother told the court: "He is normally a good boy but, like all teenagers, he has his stupid moments."
Speaking to magistrates, the boy added: "I meant it as a joke which is why I wrote LOL at the end."
Wednesday, August 17, 2011
Tuesday, August 16, 2011
Wednesday, July 20, 2011
We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.
The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office. It was the government’s decision whether to prosecute, not JSTOR’s. As noted previously, our interest was in securing the content. Once this was achieved, we had no interest in this becoming an ongoing legal matter.