Thursday, August 18, 2011

Speedy prosecution of Facebook teen means no time for decent defence

I am so angry about this that I don't even know where to start, so I'll just start. I may need to actually restrain myself. *Deep breaths* A case was brought before the Magistrates Court in Bury St. Edmunds, West Suffolk last week concerning a 17 year old boy who posted an update to Facebook that has been viewed as an invitation to start riots. I knew about this case when I saw it written up in the Guardian a few days ago after sentencing. The sentence was a 12 month ban from all social media and some other non-custodial terms. What was not immediately apparent to me when I read that article was that the youth was charged under section 127 of the Communications Act 2003 for sending a menacing message. This is the same charge under which Paul Chambers was convicted and which he is still appealing in what has become known as the Twitter Joke Trial.

The Twitter Joke Trial was a real "red pill" moment for me. The police and prosecution handling of the case was so obviously misguided to me that I couldn't help but speak up. I have been an early campaigner to have the charges dropped and then to have the judgement overturned. I am now a self professed civil libertarian with a particular interest in free speech. It is sometimes difficult to communicate to people the dangers that cases like Paul Chambers' place us all in. Difficult, because people often can't see beyond the facts of the case at hand. I'll delve into the Twitter Joke Trial more in another post. That's not what this one is about.

Here is an article I found today about the Bury St. Edmunds case as it was written up locally after the initial hearing adjourned pre-sentencing. Read it and try not to weep:

From this article I learned that the charge was under the Communications Act 2003, section 127, which deals with the improper use of public electronic communications networks. I don't know why the Serious Crime Act 2007 was not wheeled out like it was in other similar cases after the UK Riots. Perhaps this was felt to be inappropriate when dealing with a minor. Perhaps it was the extenuating circumstances that made this charge seem inappropriate. Here are the circumstances:

On Tuesday morning, the 9th of August, this 17 year old boy posted the following update on Facebook - "I think we should start rioting. It’s about time we stopped the authorities pushing us about and ruining this country. I think it’s about time we stood up for ourselves for once so come on rioters, get some. LOL" Note that the local article omits the "LOL" at the end, which I feel is important. This followed several nights of rioting in London.

At some point in the day, the teen's update was met with comments from "friends", some of whom suggested that the update was foolish and that the author was an "idiot". A brief debate ensued in which the teen mentioned the Duggan shooting in Tottenham and abuses of police power. The result of the discussion was that the teen admitted that his remarks were "stupid" and then deleted his post.

Here's what the prosecutor, Sarah-Jane Atkins, had to say. These are some of the dumbest prosecutorial remarks I've seen, and I intend to show just why. This is from the EADT24 article:

“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.

The boy then entered into a debate with one friend in particular in which he expressed some politically charged opinions and then admitted his earlier remarks had been "stupid". In other words, free speech worked exactly the way it's supposed to. Good speech followed some arguably bad speech and then the world was better for it. Although you wouldn't think that's the way it's meant to work if you listened to the idiotic remarks of arsehole prosecutor Atkins:

"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..."

I have to assume that this was not the end of the sentence. Is she really suggesting that a bad outcome would be the posting of further comments in any shape or form? Is she saying that it's a good job his friends didn't post their own similar Facebook updates? Are we all just a bunch of sheep who can't be trusted to think for ourselves? She seems to miss the central point. His friends did not react badly. They reacted well. The situation managed itself. Nor were his friends likely menaced. Perhaps someone turned him in. I don't know. If that's the case then this is tragic. Anyway, he deleted the post the same day. The post did not have much scope to cause menace, frankly. It went to about 400 people on Facebook, most of whom probably either didn't see it or just thought it was "stupid". Is there any need to punish this kid? He made an arguably stupid remark, possibly in jest, and was talked out of it. To impose criminal liability is tantamount to prosecuting a thought crime. It really is.

Now this is the part that really burns my arse. The defence does a terrible job. Horrific:

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."


  1. OK. So it was a joke - even indicated as such by the use of "LOL", which all of his friends no doubt took to mean "this is a joke". There was no suggestion of any particular plans to riot, just a general, jokey suggestion that there were reasons to be annoyed.

    So there's no suggestion that this was a serious attempt to start a riot, any more than that Paul Chambers' tweet signalled a serious attempt to blow up an airport.

    So, for a second time, a piece of legislation intended to tackle serious crimes has been used to prosecute somebody for what was clearly a joke.

    You're quite right, Flay - this is a cause worth fighting for; and Paul Chambers and his supporters should all be behind you.

  2. I'm going through all the people I know, of all ages, those who use social networks and those who don't, trying to think of someone who would definitely never say something like this. So far I'm at zero.

    A few weeks ago, two kind, educated, law-abiding octogenarians were sitting at my kitchen table discussing the previous riots (the more political ones). One made a remark which, though not worded exactly like the post in this case, could be distinguished from it only by splitting hairs.

    I almost wish it was him who'd been prosecuted, just so he could tell this ignorant bench what he thought of them.

  3. Why can't the courts see that people use social media to have conversations sometimes? A laugh and a joke with their mates. So sometimes the joke falls a bit flat. No one is hurt, no one is menaced. In this case, wiser heads even persuaded the boy to delete the message. Social media convinced the boy that rioting is not justified, no matter how much you hate the government.
    No one in the pub or bus queue would dream of reporting such a conversation for prosecution.
    Internet communications are treated in this way because the law is out of date, and because screen-grabs are available to use as evidence.
    The internet allows me to have conversations with people all over the world, and that freedom should not be curtailed because UK law is inadequate.
    Unfortunately, it would take parliamentary review to change the law, and that's unlikely as long as the law is used to keep us quiet and controlled.

  4. I noticed this. The problem from the public's point of view is that they are not so focused on the law or which law is applied or if it's appropriate, or if it properly reflects a mandate from Parliament to criminalise particular behaviour, they just see if the comment was stupid and could be taken to be an incitement to violence and then say, well, he probably had it coming. But what a gut reaction says about this and what lawyers and judges should be saying about this are two different things. The legal system should be a million miles ahead of the public in understanding the complexities of the law, and the public should have a basic idea of what is acceptable and of course, what is legal. The problem here is people are being prosecuted for crimes that no-one knows exists, and actually don't exist as something passed down from Parliament, but are actually the CPS deciding that this new 'social media' needs to be policed because people can make all sorts of comments, which if 'published' in a book or elsewhere would maybe constitute a crime. It really is not the job of the CPS to police social media without a democratic mandate.

    Also, I agree that much of social media follows the format of conversation and not that of publishing, and this distinction needs to be kept clear. If he says 'I think we should riot', he is expressing an opinion, which is perfectly okay. The question is, did he set a time to go riot, did he actually share messages where he and others planned to riot? No. He just said that he thought that rioting might be an option because he wasn't happy with the policy. He was expressing his thought and feeling that rioting could be justified. He didn't actually riot, and he didn't make any serious plan to riot. The context for this message was the whole conversation, and it's very disengenuous of the court not to take the whole conversation into account, where he himself admits his comment to be 'a bit stupid' and to actually delete it.

    My thought is that the CPS are out of control.

  5. Good point Mark. But what riles me the most is that the court does seem to have taken the whole conversation into account. The prosecutor uses it against the defendant, where I would expect it to be mitigating. The same thing happened when Caroline Wiggam QC used Paul Chambers' other tweets and replies against him where they really just showed that there was an ongoing conversation that put him in mind of certain thoughts. I am desperate to get people worked up over this. It's beyond ridiculous.

  6. We really need to frame this whole debate in terms that the public understand - I don't think the significance of the application of 127a has dawned on people yet...