Following is the transcript of a report I made for the POD Delusion podcast this week, which you can find here. It concerns the actions of the Director of Public Prosecution in relation to the Paul Chambers "Twitter Joke Trial" and other recent cases. It may be helpful to first listen to this interview I gave on Friday the 27th of July to James O'Malley not long after the handing down of the judgement.
On Friday last week I attended the handing down of the Twitter Joke Trial judgement at the High Court. Our own James O’Malley interviewed me as a long time supporter of Paul’s who had been “with him every step of the way”. How do you feel, he asked? I encourage you to listen to what I had to say, and I’m sure James will tell you how. If it hadn’t been for something that happened Monday, I think it would have been included in this podcast.
I told him that I was happy with the result, but angry that any of this had to happen. I blamed the Director of Public Prosecutions for the Crown Prosecution Service, Keir Starmer QC, for his personal decision to oppose the appeal as far as it could go. On Monday the CPS released a statement on their blog clarifying the role of the DPP in this case. There have been two versions of this statement. The first was taken down pending review after intense criticism. The second is frankly little better. I will read it now:
“Clarification on decision making in Paul Chambers case
The DPP was not the reviewing lawyer in the case of Paul Chambers, but in June he did instruct the team managing it to consider conceding the appeal. This was considered and progressed, however, at a later stage the DPP was advised that, as a matter of law, conceding the appeal would not be possible. This is because it was not possible because the key finding of fact in the case was a finding of the Crown Court, which only the High Court could overturn. The DPP accepted that advice and reluctantly agreed that the appeal had to proceed.”
This crime against grammar in response to criticism in the media is the most gormless, cowardly and demonstrably false one that I hope I ever have to see. It completely denies any responsibility that the DPP had in prosecuting this case. It is more than misleading. I know for a fact that the defence received papers to close down the appeal after the CPS decided there was no longer a public interest in upholding the conviction. I have this straight from Paul’s solicitor. The client had been notified and believed that it was finally over. Then some days later another letter arrived indicating that the DPP had made a personal decision to continue. The appeal would go ahead after all. Stunning.
The DPP must think we are all stupid. He expects us to believe that there could have been some point of law forcing the CPS to respond to the appeal. There could have been no persuasive legal advice to that affect. Even where there is powerful evidence, the CPS are free to decide not to prosecute a defendant if that prosecution would not be in the public interest. Similarly the CPS are free to decide not to oppose a criminal appeal and the result would be acquittal. This is elementary. If such advice exists, I’d certainly like to see it. I’ve put in a Freedom of Information request to try and find out, but I’m not holding my breath.
The finding of fact by the lower court can have no bearing on the CPS decision. The appeal itself was only ever supposed to be on points of law. Normally the High Court would not have overturned a finding of fact. The only reason it happened in this case is that the Lord Chief Justice was in charge and he can do what he likes. So, he chose to overturn the ridiculous finding of fact at the Crown Court that Paul’s tweet was menacing on its face. He did this with style. Deciding that there was no guilty act, it followed that there could be no guilty intent (or mens rea). Mens rea is another essential ingredient of this offence and it is not one in which the Crown Court was entitled to make a finding of fact. This appears to have been forgotten.
Let’s suppose for one moment though that it’s true. The DPP was somehow forced against his will to contest the appeal. There’s nothing forcing him to actually present a case in court! The CPS could have shown up and said, “You know what? We’re not going to argue a case as we no longer see the point.” They could have simply not shown up! They chose to vigorously argue their case. I was there. I can vouch, though it seemed that Robert Smith QC’s heart wasn’t really in it.
For all of these reasons I don’t believe the Director of Public Prosecutions. The question then remains as to why the DPP chose to pursue this case to the bitter end despite everyone else involved wanting to pass. I think I have some insights into that. He’s probably thinking about a load of recent cases that were concluded but may need to be re-examined in light of the new approach.
Over the past year we have seen more and more examples of ill-conceived prosecutions being brought by the CPS against individuals for things they have written online. In some cases it has been shown that the lawyer reviewing the case should not have even considered the evidential stage satisfied. After the riots of August last year there were several cases involving Facebook communications, many of which saw defendants pleading guilty even though they would have been better off contesting the charges. The CPS seem to like to go fishing and they will accept a guilty plea as all the evidence that is needed. Bear in mind that people will plead guilty to a charge for a variety of reasons, including costs and a desire to avoid the stress of a trial. Also people who are scared and confused are likely to take the advice they are given by their legal briefs. Often a guilty plea will result in a discounted sentence. That rarely occurred in August and September. A handful were charged with the same offence as Paul Chambers, namely “sending a menacing message by way of a public electronic communications network” contrary to s.127 of the Communications Act 2003, but the more popular charge was also a more serious one.
Two guys from Cheshire, Jordan Blackshaw and Perry Sutcliff-Keenan, both pleaded guilty and were each sentenced to four years in prison for the crime of “Intentionally encouraging or assisting an offence” contrary to s.44 of the Serious Crime Act 2007, for which the maximum penalty is 10 years. Both had nevertheless maintained all throughout their cases that they had merely been joking. Apparently they were unaware that they were admitting to a crime for which there is a strong burden on the prosecution to prove intent. It seems they were not alone.
A young woman named Hollie Bentley was also arrested for a Facebook event she posted around the riots and which she maintained throughout to have been a joke. Fortunately for her (and perhaps for us) she chose to plead not guilty. This resulted in the case being thrown out of court due to lack of evidence of intent. There was simply NO evidence. All the evidence, including the testimony of the interrogating officer, pointed to the communication having been intended as a joke. Most alarmingly, the Daily Mail reported that when the Recorder at Leeds instructed the jury acquit, the prosecution attempted to argue that similar previous cases resulting in prison sentences would have been equally difficult to prove intent! These were cases in which the defendants pleaded guilty, was the judge’s sane response. I see this “have your cake and eat it too” approach as betraying a shockingly cavalier attitude to criminal liability, one that is sharply at odds with the Code for Crown Prosecutors.
I sent a Freedom of Information request to the CPS in December last year to find out how they satisfied the evidential stage of their Full Code Test in this case, which is to say that “an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.”
I was not able to find out much because of data protection restrictions; however, what I did find out was surprising. All that the CPS could tell me was that in examining the mens rea, the lawyer reviewing Hollie’s case referred to DPP v Collins, which is the case law precedent that has been such a big feature in the Paul Chambers case. This was a 2006 case concerning a s127 conviction under the Communications Act applied to telephony. It has nothing to do with The Serious Crime Act. The s.127 law lacked a specific requirement let alone test for mens rea, which has only been forced onto it through this case law. By contrast, s.44 of the Serious Crime Act has an explicit and robust test for mens rea in paragraph 2, which reads:
“But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.”
With such a clear test, there is really no reason to go looking around for another in some bizarre effort to find a creative way to capture the offence. What is going on over at the CPS? It seems to me that there is something really rotten in the culture that has caused them to lose sight of their remit. They appear to be bringing prosecutions on flimsy evidence with oblique legal reasoning that is putting innocent people in jeopardy. Their Full Code Test is meant to ensure that prosecutions are lawful and reasonable, but they don’t appear to be following it. And their decision making is not open to public scrutiny.
Now that the Twitter Joke Trial has come to such a satisfying conclusion, there have been many calls for the DPP to resign. Louise Mensch, the MP to whom Paul Chambers is a new constituent, has called for the DPP to be hauled in front of the Home Affairs committee to explain himself, and so he should. Only today we’ve discovered that a prosecution involving extreme pornography was launched without sufficient evidence to show that the defendant had ever even opened the email that is alleged to contain the offending images for which he is charged with possession. This prosecution, still somehow ongoing and by all accounts an embarrassment to our nation, could not have gone ahead without the explicit approval of the DPP. He has shown time and time again that he is prepared to ruin someone’s life on the flimsiest of evidence, often overlooking critical mitigating circumstances, and without due regard to issues of proportionality. On the other hand, he didn’t see the point of prosecuting a police officer for the unlawful killing of an innocent bystander. He didn’t feel it would be appropriate to charge phone hacking journalists who could only be shown to have listened to saved voice mails rather than fresh ones. Even if the DPP is not responsible for what happened in all these cases, he is still responsible for the culture. If he won’t go of his own accord, the only proportionate response that I can see is to sack the DPP.