Thursday, April 19, 2012

#FreeTheBexleyOne: How Olly got Cromwelled by the Council and the Court - Part I

EDIT (20 Apr 2012): See callouts within the post.

It's about time I wrote something about Sir Olly Cromwell and #FreeTheBexleyOne. Sir Olly Cromwell is the twitter pseudonym of John Graham Kerlen, a man from the London borough of Bexley who has been the subject of a long running dispute with his local council. He is currently facing a possible 6 month prison sentence for an offence under section 127 of the Communications Act 2003 for which has was found guilty on Friday, the 13th of April. Bad luck.

The story is long and convoluted. I won't go into details. You can find some of the information on Mr Kerlen's blog, You've Been Cromwelled. You will notice that this blog is really quite offensive. Kerlen makes no apologies for this. He seems to view himself as a thorn in the side of a corrupt establishment. The case heard at Bexley Magistrates' Court focused on two tweets that Kerlen posted to his twitter timeline in October 2011. I repeat them here (the first included a link to a photo of the home of one of the councillors):

"Which cunt lives in a house like this. Answers on a postcard to #bexleycouncil."

"It's silly posting a picture of a house on Twitter without an address, that will come later. Please feel free to post actual shit."

The District Judge found Kerlen guilty of sending a message (or both taken together) of a grossly offensive and menacing character by means of a public electronic communications network. Attentive readers will be aware that this is the same statute that was used to successfully (so far) prosecute Paul Chambers (he of Twitter Joke Trial fame) and Azhar Ahmed (who insulted the memory of British soldiers killed in active duty). We at Justice Denied feel that there are problems with the way that this law is being interpreted with regard to social media and that it is not being applied consistently.

The lawyer Amanda "Milly" Bancroft wrote an article for the Guardian's Comment is Free in which she asks the question "When does an abusive tweet go too far?". In this article she sets out the facts of the case and the letter of the law. Her conclusion is that yes, the tweets taken together are both grossly offensive and menacing in character. In this determination she has applied the test set out in case law which is known as the "reasonable person". Using her internal moral compass she has decided that a reasonable person would agree that the tweets could cause menace and gross offence to those to whom they relate. I respectfully disagree on one of these counts, though I'm no expert.

Grossly offensive
Leaving aside possible menace (for which I agree there was a case to answer) we look at what is grossly offensive. There is no legal definition of grossly offensive, so we must look at case law. The precedent here is DPP v Collins, in which the Lords conclude in paragraph 9 that "There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates."

Gross offence is also not defined. Kerlen's counsel argued that in order for a message to be deemed objectively grossly offensive, it must be "beyond the pale as to what is tolerated in our society". I am unable to find the legal basis for this position, but it seems reasonable. I'm assuming that this comes from the Oxford English Dictionary definition, which is normally sought when a proper legal definition is unavailable. Lacking the full judgement text, I will assume that this position is understood to be correct.

It is very difficult to see how the "Man on the Clapham Omnibus" (aka reasonable person) could find the insult of 'cunt' to cause gross offence. It is a very commonly heard insult nowadays. I was recently called that by a cyclist after I failed to move my car off in time to enable him to get his bicycle up the median of the road when there was slow moving traffic. When I slammed the brakes, forcing him to swerve in order to avoid a collision, he graduated to 'arsehole'. The C word did and does cause offence, but not gross offence. It is simply too common.
EDIT: Is there anything about the second tweet that is grossly offensive? Someone suggested to me that the invitation (weak though it is) to post "actual shit" through someone's door could conceivably cause gross offence. I have to say, it never occurred to me. I don't see it, even with the two taken together. It's offensive because it is confrontational and unpleasant, but I really can't take it seriously.

There would seem to be nothing special about the councillor that would make him any more susceptible to gross offence as a result of this particular insult. It seems to be equally applicable to all walks of life. There may be a class bias here, as the word seems to have gained some acceptance in working class circles as both a term of endearment and as a slur.

Even assuming that one is able to successfully argue that the insult is objectively grossly offensive, Kerlen may not have been aware of this. Another requirement from the Collins case is that the prosecution must prove that the sender "intend[s] his words to be grossly offensive to those to whom they relate, or be aware that they may be taken to be so". Unfortunately paragraph 11 muddies the water somewhat with the following:
"On the other hand, a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender. The same will be true where facts known to the sender of a message about an intended recipient render the message peculiarly offensive to that recipient, or likely to be so, whether or not the message in fact reaches the recipient."

This passage has caused a lot of trouble and confusion. Judges appear to be reading this to say that the sender of a message need only be aware that the message is insulting or peculiarly offensive to those to whom it relates. In other words (and in this case), an intentionally offensive insult is grossly offensive for the purposes of the legislation. This is easier to accept when the communication is one-to-one and there is at least a target recipient in mind. However, I am very suspicious of this position when broadcast style messaging is under discussion. That involves a completely different thought process.
EDIT: This would not appear to be correct. The message character would have to be established as a matter of fact before any question of mens rea arose. I suggest here that a "guilty intent" can somehow elevate an otherwise innocent act to a guilty one.

On Menace and Mens Rea
What is worse is that this passage does not seem to perfectly capture the other criteria such as menace. Menace is not described in degrees, and so the potential for menace is really wide open. This becomes much more about the literal content, regardless of the context recognised by the sender. Indeed, in the most recent Twitter Joke Trial appeal at the High Court, DPP counsel submitted that the justices can only look at the context of the message at the instant it was sent in order to determine menace. The justices seemed to accept this.
EDIT: I didn't explain this very well. What the DPP counsel suggests and the justices accept in Chambers v DPP arguments is that in making out the menacing character of Paul's tweet the justices are restricted to the context at the time the message was sent. The purpose of the legislation is to protect people against unsolicited menace, etc. The moment a person reads a message he may experience the sensation of menace (or gross offence, etc). So the law must ignore the circumstances around the tweet since the recipient may not be aware of them and so might be menaced unintentionally. Everything else we may have learned subsequently are irrelevant because this information was not available at the time the message had the potential to cause menace. This means that any communication can be regarded as menacing if the content and the manner in which it is delivered give that impression and unless it is clear from the content of the message that it is not intended to be taken seriously. That's a tough deal.

What is the parallel menacing performative to 'insult'? I'm not sure. Could it be 'scare'? Possibly, though I think if that were true we would be looking at a more serious charge. I think 'startle' is probably nearer. It therefore follows that to prove mens rea we require only that the message is couched in terms showing an intention to startle those to whom it relates or giving rise to the inference that a risk of doing so must have been recognised by the sender. It seems to me that we have stepped well outside the original intentions of Parliament. Oh brave new world...

This has been Part I of II.

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