Justice Denied

#TwitterJokeTrial - It's all about proportionality (unfortunately)

2012-02-10T10:55:00.000-08:00

If you only read one blog post about the Twitter Joke Trial appeal in the High Court on Thursday the 8th of February 2012, read this one by practising lawyer Carl Garder at his blog Head of Legal. (Waves goodbye). But seriously, do read that post. It was described by Paul Chambers' solicitor David Allen Green as a "must read" and it saves me having to dive into what would otherwise be exhaustive detail here (The comments are also great). Instead I will just reinforce some of the key points by which I was particularly taken on the day.

It was a fascinating day in court. Both sides argued very skilfully. I was disappointed that the justices seemed to have satisfied themselves that the court has no jurisdiction to rule on the character of Paul's tweet. It was stated by two judges in two separate trials to be unambiguously menacing in content and in context. Because this is not a point of law (goes the argument) then this is a fact of the case and beyond reproof. I disagree of course, but then who am I? Just an ordinary person. I would argue that it IS a point of law because both the district judge and the Crown Court judge looked at the wrong context. They looked at something which cannot reasonably be regarded as a context for any communication. See this other post for more on that (go on, it's worth your time). This line of argument gets us nowhere with the justices though, as they are happy to accept the menacing character of Paul's tweet given that RHA duty manager Duffield testified that he could not be sure at the time that it was intended as a joke, also that airport security took it seriously. This ignores the fact that these people felt and stated that it was their duty to take any potential threat seriously, even a non-credible one.

The importance of context came up quite a lot in Thursday's appeal. I was dismayed when the justices began to suggest to counsel that Paul's tweet has to be looked at in the context it had the moment it was sent rather than any context we could ascribe to it with further knowledge. This is because a person stumbling upon that errant tweet will not at that moment be aware of the wider circumstances surrounding it and is therefore at risk of being menaced. This legal position opens up a huge can of worms as I'm sure you can imagine, so I'll leave it with you. What I'd like to note though is that this argument sends us down a new path of reasoning, which the justices did explore with counsel. The context of the communication and all the circumstances around it determine whether or not it is of a menacing character. The Lords made that clear in DPP v Collins. But in our new reasoning we are forced to ignore the circumstances around the tweet because the recipient may not be aware of them and so might be menaced unintentionally. This weakens mens rea considerably and it also 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. It now becomes easier to see how judge Bennett and HHJ Davies arrived at their conclusions.

This is quite a thorny patch we find ourselves in. The justices need to be faithful to Parliament's intention to protect members of the public from being exposed to messages that are of a menacing character and so must give little or no regard to the de facto meaning and intention of the message. We would argue that Paul's tweet is self-evidently not to be taken seriously (and therefore not of a menacing character) for a number of reasons. Unfortunately most of the clues are not a part of the content of the message, but are subconscious subtleties in its construction. The interjection at the beginning is the first clue to its jokey nature and the absurd "threat" and exaggerated ultimatum are further clues, as is the use of a double exclamation at the end. For more on the linguistic implications of the tweet, please see this other post (just do it, alright? It ain't gonna kill ya. You've read this far). Rational analysis of the surface content of the tweet does little to dispel the whiff of menace. The syntactical clues are cultural and subtle. They flow from the author and affect the reader in an illogical right-brained way. I'm sure a jury (without the need to understand why) would agree within minutes that Paul's tweet was not menacing, but unfortunately a pair of justices would tie themselves in knots over this. I don't think they will give this much attention and to be fair, the arguments by counsel along these lines were anything but novel.

It seems the only way this case may be decided favourably is through the application of the proportionality test which Strasbourg jurisprudence requires in cases that interfere with Article 10 rights. The justices must do the job that the lower courts completely failed to do and balance Paul's right to free speech against national security and the rights of others not to be exposed to menace. In doing so they will hopefully keep in the foreground the ease with which this type of offence can be unintentionally made out. I hope that the justices will see that in its efforts to protect the public from unwanted menace, the CPS and the courts have done nothing useful in this regard but have instead endangered and chilled us. If it is accepted that Paul did not intend to cause menace and that the actual likelihood and impact of any menace would be quite small, then it would be a disproportionate response to prosecute and convict him, even though an offence may be made out. This would be a victory for Paul Chambers but would be an unsatisfactory half measure for the rest of us. It would mean that to speak as Paul did would be to incur criminal liability and that it is the business of the courts to decide case-by-case whether it is proportional to convict. It would influence the CPS decision making process during the evidential stage of their Full Code Test, but this is not enough. This law clearly needs to be changed. I have more to say, but this is getting quite long now. I welcome any comments.

The #TwitterJokeTrial: Why it matters to me - why it should matter to you.

2012-02-06T09:14:00.000-08:00

Back in November, just a couple days before Paul Chambers' High Court appeal was originally scheduled to be heard, I gave a brief introductory speech to the specially convened Westminster Skeptics meeting. It is now two days before the appeal will finally be heard (8th February 2012). I have reproduced the notes for my speech here (the actual speech was a bit different). This is the Twitter Joke Trial in a nutshell from my point of view:

I first became aware of this case back in January 2010 when I read a write up in the Independent about a week after Paul was arrested. He had not yet been charged and the incident was still being treated as a bomb threat or hoax. It struck me as problematic because I felt I understood the context well enough to deduce that no harm was intended. I expected there would be no charge, but I remained curious.

A couple months later I read the article that David [Allen-Green] wrote about the case for his “Bad Law” column in The Lawyer magazine. That article changed my life. David had interviewed the Crown Prosecution Service and as a communications lawyer had neatly picked apart the legal underpinnings of the case.

What I learned was astonishing and frightening.

Paul had been charged and had in fact pleaded guilty. The charge did not relate to any sort of terrorism or bomb hoax offence. It was a flimsy communications offence that had been originally intended to deal with nuisance telephone calls.

When David asked what the CPS would say to bloggers and twitterers about the scope of the Communications Act, their response was:

“Bloggers and twitterers should be aware that there are several Acts which cover potential communications offences – please see the guidance on the CPS website. It is not funny to make jokes of this nature as it can cause serious disruption to transport services and divert police attention away from genuine crimes.”The guidance on the CPS website at the time stated: “It is more appropriate to charge bomb hoaxes under section 51 of the Criminal Law Act 1977.”

Even more astonishing was that the CPS were insisting that the charge could be prosecuted without proving that the defendant had any awareness of what he was doing. This is called strict liability, and it means that a person need not be intentionally or recklessly culpable in order to be guilty of an offence. An example would be the sale of alcohol to underage persons. The CPS charged Paul with this lesser offence instead of the more serious offence under the Criminal Law Act 1977 (for which he was arrested) because, as they acknowledge, “there was no evidence that he intended to induce in the recipient a false belief there really was a bomb.”

However, the CPS were apparently careless. They ought to have realised there was a precedent in case law which lent additional burdens to their case. Specifically, it is for the Justices to determine based on the context and all relevant circumstances whether a message qualifies as menacing, and at the very least the defendant must have recognised that there was a risk it could be taken as such. This is a very low threshold for mens rea, but a requirement nonetheless. It wasn’t until half-way through Paul’s Crown Court appeal that the CPS finally accepted their burden to prove intent. Had they done their homework in the beginning, they would not have charged Paul as they would not have believed there was sufficient evidence of intent. But once the ball was rolling, it seemed there was no stopping it.

God knows I tried! Having been sufficiently angered by what I’d read on thelawyer.com, I decided that this could not go unchallenged. It seemed that Paul had been unwittingly coerced into a guilty plea. I got in touch with him and told him I intended to write a letter to the CPS complaining about their handling of this case unless he had any objections.

My letter of complaint was received on the 5th of March, a Friday. In that letter I outlined the reasons why I felt the prosecution was misguided. I felt the scope was too broad and it was all too easy to fall into the trap of unwittingly committing this offence. Indeed I acknowledged that there had been times when I might have fallen afoul of this interpretation of the law. The following day I created a Facebook group with the aim of enlisting support to get Paul’s charges dropped. Today that group has a bit more than 600 members and serves as a good source of news about the case.

I had an exchange of letters with the CPS in which they explained to me how they conducted their Full Code Test in order to determine that there was sufficient evidence to prosecute Paul and that the prosecution was in the public interest, and I explained that I felt the prosecution was highly flawed and was likely to fail to the enormous embarrassment of a public body that I felt did good work. In the course of our correspondence, Paul’s legal team became aware of David’s article and realised Paul had a strong case to defend himself against the charge. The defence team applied to have the initial guilty plea vacated and were successful. There was renewed hope, and I felt that surely now the CPS could be persuaded to drop the charge. However, as I was never a party to the proceedings our correspondence came to an abrupt end once a hearing was scheduled.

In April I first set foot in this room. I had come along to Westminster Skeptics in the Pub, which was holding a libel reform rally and celebration for Simon Singh, who had just won his case brought against him by the British Chiropractic Association. I’d come to the meeting in order to speak to David about how I could take my complaint further. I couldn’t have anticipated that I’d end up coming here to almost every meeting since. David and I agreed that now that a hearing was scheduled in May with a very good prospect for acquittal, the best move would be to leave it in the hands of the judge.

You all know what happened of course. Somehow the prosecution managed to convince the judge that the message was menacing in its context (not the correct one) and that Paul must have been aware of the risk it could be taken as such. All of us who were early supporters of the campaign were badly shaken. I went from incandescent to despondent in a matter of hours. It coincided that on the evening of the trial, there was another meeting of Westminster Skeptics. I’d been planning to come anyway, hoping for a celebration. I arrived to find a visibly shocked David Allen Green. I think we both wore the same expression. “That was a terrible, terrible decision today, ” he said as we greeted. I don’t know whether it was that night when David decided to offer his services pro bono as Paul’s solicitor, but he seemed to have turned a corner, as though he could no longer carry on as a mere spectator.

For my part, I was determined to learn as much as I could about the law that had been misused to turn an innocent man into a criminal. I argued with people on the Guardian’s Comment-Is-Free section and wrote my own blog posts developing and distilling my thoughts on the case. I spoke to a linguistics expert who showed that there can be little doubt that Paul’s tweet was not intended to be taken seriously. I discussed OfCom governance and the meaning of “Public Electronic Communications Network” with engineers. I corresponded with a telecommunications lawyer who was looking at the genealogy of the law and determined that its meaning had been corrupted through various re-enactments. I spoke to experts and I read case law. I’ve been refining my knowledge ever since.

The appeal in the Crown Court was a disaster, despite a vigorous defence. The judgement can only be described as sinister. I was there in Doncaster on the day and I thought I would be sick. Judge Davies could not see how Paul could have been unaware of the risk that an ordinary person would be menaced by his tweet, which she accepted as “menacing and quite clearly so”. She used all of his strengths against him. Paul is a man of above average intelligence who is university educated. He has flown in airplanes before and must certainly be aware of the constant threat of terrorism we all face. He is an experienced user of Twitter who can’t claim not to understand how it works(!) He could therefore not have been unaware of what he was doing, despite his sworn testimony otherwise. He ought to have known better; therefore, he must have known better.

How incredibly unfair! I’m an ordinary and reasonable person I think. I can see how someone could write and dispatch what Paul did without seeing how it might look to a third party for whom it was not intended. If Paul had been a stupid man who never went to college and had just switched on a computer for the first time, he might have been acquitted.

Is this how we determine guilty mind? The guilty act is so clear as to be obvious to all but the most idiotic? What is the point of requiring mens rea? How can a person possibly defend himself against such reasoning? It’s maddening. And now here we are. The Crown Court allowed the case to be appealed to the High Court by way of case stated. It was meant to be heard this week, but sadly that can’t happen. The defence will argue that the judge got the law wrong and misdirected herself. If justice is finally served, then Paul will no longer be a criminal and will have no unusual difficulty finding work. And judge Jacqueline Davies will suffer the humiliation of having her judgement overturned. May this case always define here career.

The context, by the way, makes no sense. The context that has been ascribed to Paul’s tweet has been described by two judges along very similar lines: the times in which we live and the threat of terrorism, especially in relation to airports. Have not all communications occurring in recent times occurred within this context? Of course they have. This is not a context. It is a constant (if it is to be believed). Oxford English Dictionary: context (noun) – “the circumstances that form the setting for an event, statement, or idea, and in terms of which it can be fully understood.” A context is specific to a particular event. How can the fact of airport related terrorist threats be considered a context, let alone THE context of Paul’s tweet? It can’t. This begs us to identify the real context.

A young man in England has booked a flight in January 2010 to Northern Ireland to spend time with a young woman that he has previously met a couple times. The man likes this woman very much and thinks it might actually be love. The feelings are apparently mutual. This is a very good thing. Unfortunately there has been some snow fall that has resulted in the temporary closure of the local airport from which the flight is due to depart. When I think about what scant amount of snow fall can bring an entire British city to its knees, I feel the urge to punch somebody. It therefore does not surprise me that the man could be moved in a fit of pique to write the now legendary Twitter update "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!!"

The context is that here is a man who feels frustrated with the fragility of his plans and has been rendered powerless. He therefore creates a fantasy in which he has powers not actually available to him in order to compensate for this lack of control. The powers are not available to the man because the man is not in any way capable of blowing up an airport. He has neither the means nor the meanness of character required. How does one actually blow an airport "sky high?" To begin with, how high is the sky? 37,000 feet perhaps? What sort of explosives would be required to achieve this incredible feat? Already, the notion of any intention to cause menace is taking on the stale aroma of farce. The continuation of the context is that the frustrated man, who has a particular sense of humour, decides to vent his frustration with the tweet with which were are now all familiar.

Paul’s fiancée Sarah wrote a touching guest post on David’s Jack-of-Kent blog. In it she relates how when Paul was failing to return her messages while he was being questioned at a police station, she left him an answerphone message jokingly threatening to "hijack a plane." They had apparently been joking about terrorism earlier in the week. She is after all a Nothern Irish woman who grew up in a place where domestic terrorism has long been a sad fact of life. He was after all flying to Northern Ireland to see her. It really is that simple. Thus completes the picture of the real context.

This case has changed my life. It was so obviously wrong to me that I felt impelled to do something. I am now a civil libertarian with a particular focus on freedom-of-speech issues. My politics have been ignited. I’ve met a lot of wonderful people through this movement and I’ve made some of the greatest friends I’ve ever known. Some of these are people that I’ve never even met in real life. None of this would have been possible without the power of Twitter and similar networks to break down communication barriers. The best tweeps are the ones who are genuine. They give you a slice of themselves in almost every tweet. I couldn’t have formed these relationships had I not been allowed to be myself. To say what’s on my mind without fear of winding up in a cell. That’s what’s at stake and that’s why we’re all here. That’s why Stephen Fry and Graham Linehan and Al Murray and Tim Minchin and many others whose careers depend on frank speech have rallied in support of this cause. We may not be Spartacus, but any one of us might have been Paul. He’s fighting this for us and we must not let this conviction stand.

Normal service to resume some time or other...

2011-12-22T14:01:00.000-08:00

Hi. This is the first post I've written here in the month of December. I only wrote one in November. I'd really hoped to do better than that. The end of the year is always a strange time, with various efforts naturally winding down in anticipation of the holiday shut down and the refresh that comes with the new year. My life is certainly no exception. Unfortunately this blog is mostly written by one person (me). Although I've tried to enlist others to help out, this has been rare. I have always found it difficult to start writing pieces that I know are going to turn out to be long. I have often spent several hours composing a blog post that if I'm lucky has been seen by three people. I'm going to keep this up, but I've given up on anything else meaningful in 2011. New Year's Resolution: write more.

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.

#TwitterJokeTrial and the cluelessness of judge Jacqueline Davies

2011-11-09T02:43:00.000-08:00

It's been a while since I've written here. This at any rate is long overdue. I've been intending for months to write more about the Twitter Joke Trial. This blog site was created after the UK riots in August 2011; however, there are a number of older posts that were ported over from my personal blog. Most of these relate to the aforementioned case and the campaign around it.

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!

Who Needs Human Rights? Part III - The Politicians

2011-10-19T16:31:00.000-07:00

I promised a Part III to this series, so I suppose I'd better deliver. In Parts I and II we covered the #CatFlap controversy and the role of the tabloids in misreporting the Human Rights Act. In this part, we examine the politicians and why many, particularly those in government, are not comfortable with the Human Rights Act as it stands. This Guardian piece by Terry Irvine says just about everything I want to say on the matter, but there is a bit more that I can supply. The Human Rights Act is an easy target. Attacking it is not nearly as controversial as it ought to be, thanks in part to the bad and self-serving media coverage.

There is a fairly straight forward reason why some government ministers, particularly in the Home Office, have animosity towards the Human Rights Act. It does indeed make it more difficult to deport foreign criminals and illegal aliens in some circumstances. These circumstances include those in which the deportation of the individual would be very likely to result in torture or loss of life. It should be pointed out however that there are other laws which reflect our obligations under various other treaties and conventions and which could prevent deportations under similar circumstances and for similar reasons.

The disparaging of the Human Rights Act by cabinet ministers is certainly nothing new and is not confined to conservatives. The Human Rights Act was enacted in 1998 by a fairly new Labour government eager for constitutional reform. Yet just ten years later in 2008, then Labour Justice Secretary Jack Straw expressed his distaste for the Act, describing it as a "villain's charter". This is of course rather interesting given that Jack Straw actually introduced the Act and was its chief architect when he was serving the government as Home Secretary. It is once again the issue of foreign deportation that is the cause for concern (emphasis mine):

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."

Well I for one am very glad to live in a country where the government doesn't always get its way in the courts. This is a sign that things are as they should be. The concerns of government are very different from the concerns of the judiciary. Parliament provides the legislation for judges to apply, and judges apply that on a case-by-case basis using their skill and experience and taking many, many factors into account. The Home Office might feel that the deportation of a person is in the best national interest and give such assurances; however, it is incredibly insulting to the judicial profession to characterise the refusal to accept such assurances as nervousness. Oh and Jack, I think you meant to say "terror suspects" and "suspected criminals". Don't get me started on Jack Straw.

It is not the Human Rights Act that is to blame for the failure to deport terror suspects, but rather the cult of secrecy that prevents terror suspects from being tried openly in the UK. In order to try a criminal suspect in the United Kingdom, evidence must be presented and added to the public record. In some instances it is felt that the evidence is too sensitive to share with the public; often it is the manner in which the evidence was obtained that is the issue. The evidence may have been obtained through covert means that the government does not wish to compromise. Perhaps some evidence was obtained through enhanced interrogation techniques which are not strictly legal. This paper examines the Special Immigration Appeals Act 1997 and its compatibility with European Law. I note the following:

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.

Who Needs Human Rights? Part II - The tabloids

2011-10-07T15:27:00.000-07:00

The tabloids do not like human rights. "Why?" I hear you ask. Because human rights get in the way of a juicy story. Companies such as Associated Newspapers Ltd (Daily Mail) and Newsgroup Newspapers Ltd (The Sun, The News of the World*) have a strong personal interest in seeing the Human Rights Act abolished. This is because these entities so often find themselves in court and subject to an anonymised injunction, a type of temporary gagging order, over some celebrity's Article 8 rights to privacy and family life which the Human Rights Act protects. It is no surprise then that these publications repeatedly misrepresent such cases, labelling the gag orders "super-injunctions" when they mostly are not. An actual super-injunction, as this type of gag order has been dubbed, is more restrictive than an anonymised injunction as it affects even those who are not party to the injunction. Roy Greenslade credits the Guardian editor Alan Rusbridger for coining the term in reference to that paper's inability to report on the Trafigura affair in September 2009.

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 :)

Who Needs Human Rights? Part I - #CatFlap

2011-10-06T12:28:00.000-07:00

Boy this CatGate / CatFlap thing has really gotten out of hand, hasn't it? In case you hadn't heard, a quick recap: Two days ago (4th October), the Home Secretary Theresa (I am not making this up) May gave a speech at the Conservative Party Conference in Manchester in which she criticised the Human Rights Act because of the difficulties that can arise from it when the Home Office wishes to deport someone. In this speech she made the following claim (emphasis mine):

"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.

We need to be careful of restricting social media

2011-09-14T12:18:00.000-07:00

Johnnie Melfour, a sixteen year old man from Driotwich, has today been convicted of trying to incite a riot on Facebook. I can't say I am familiar with the case, though I'm sure Matt Flaherty will be all over it soon – but one thing that did prick my interest was this, taken from the BBC's coverage on their news website...

“Chairman of the bench, Paul Vaughan, said the public needed to be made fully aware of the "legal perils" of the "unfettered use" of social-networking sites. “

That's a very interesting position he has arrived at – what does unfettered mean? How must we use social-networking sites like Facebook and Twitter – what exactly are the rules?

Freedom of Expression is supposedly a right that we all enjoy here in Britain, and yes, it is true to say that with rights come responsibilities. We members of the public have to be careful how we exercise these rights, but it is also essential in a democracy that parliament is equally careful in how it restricts them. We can't have things left up to individual judges, or we end up with the utter farce of the Twitter Joke Trial again... If it is parliament's intention to restrict what we can do or say online, then there should be a properly visible, comprehensive debate in parliament between our representatives, conducted in the open so that we might hold them to account. Anything else is a sham.

Make no mistake, our politicians are not afraid of lumps of concrete or petrol bombs – they have police forces for dealing with issues like that. What the politicians fear in the public's hands are the far more dangerous weapons of truth, and the means to openly communicate it. Social media are enabling, empowering tools for the public – and we can't afford to allow them to be subject to arbitrary censorship, either through direct actions or through intimidation.

My message to the politicians and judiciary in our country then is succinct where social media are concerned – either state your case openly or back off.

If we allow the unregulated, drip drip censorship of the people to continue, then we are only going to have more pages here on this blog, and more charades like the Twitter Joke Trial.

Incidentally, I've personally met both high profile politicians and Mr. Paul Chambers, the defendant in the Twitter Joke Trial. Seriously, I'd rather have Paul in parliament than almost any of the current lot any day of the week, and twice on Tuesdays!

Ken Clarke wants to remove the automatic right to a lawyer upon arrest

2011-09-08T14:45:00.000-07:00

There are a lot of topics I wanted to write about before, but this one that caught my eye yesterday has taken precedence. The Guardian published a human interest story about duty solicitors that dropped a bit of a bombshell for many who are interested in the rights of suspects. It revealed that the Justice Secretary, Ken Clarke, has tabled a motion announcing that the UK will opt out of an EU directive guaranteeing access to a lawyer upon arrest. A lawyer friend of mine questioned whether this was a misprint, and several of us investigated what this might be all about. It turns out that this is indeed true, and the reasons arise from a new legal aid bill under consideration that replaces the automatic right to representation on arrest with a new system of means testing and red tape before a suspect in custody can qualify for public funds. Section 12 of the Legal Aid, Sentencing and Punishment of Offenders Bill sets out the new provisions.

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
prescribed means,

So basically, you're arrested and you're poor, yeah? Unless you've been arrested before, you will probably not understand what is expected of you and what your rights are when detained at a police station. You are quite possibly not in a very good state of mind. You are hopefully told that you can request legal advice. You are then expected to fill out a form and send it off to some civil servant or speak on the telephone (hopefully not your one phone call), and wait for that civil servant to take some amount of time to decide whether you qualify for legal aid. In the meantime you have no legal representation. That doesn't sound very good to me. What if it's the middle of the night? What about weekends? Bear in mind that you are at this point entirely innocent in the eyes of the law.

From the Guardian piece:
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."

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.

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.

Met Police impose random stop & search all across London

2011-09-07T14:11:00.000-07:00

I was already quite hacked off when I'd identified this subject of a London-wide order imposing stop and search with the power of section 60 of the Criminal Justice and Public Order Act 1994. This was in the context of the Notting Hill Carnival at the end of August. However, when another order was issued within a week to coincide with an EDL demonstration in Tower Hamlets, I became incensed. I'll explain why. This power is discussed on the Metropolitan Police Stop and Search FAQ, which perhaps needs updating now. Here's how it is described (emphasis is mine):

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.

As we can see from the general advice here, a section 60 order is designed to cover a specific area (the Act calls this the 'locality') at a specific time. An order can be up to 24 hours if authorised by an inspector or 48 hours if by a superintendent. The decision of the Metropolitan Police to treat an entire city (the nation's capital no less) as a locality for the purposes of this provision is cause for grave concern and makes the wording of the Act appear quite ridiculous. It certainly would be reasonable to imagine that on any given day in Britain's capital city, there will be at least one act of serious violence or one person carrying a dangerous or offensive weapon somewhere. Indeed, the larger the area prescribed in the authorisation, the greater there is likelihood of serious violence. The police might as well just authorise a section 60 order across London every day!

There has been a Freedom of Information request for the written authorisations (the Met Police publication is no longer available). A similar request had already been made in relation to the Notting Hill Carnival order. The explanation for the decision goes as follows:

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 2011

Hmm, 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.

The Stepping Hill Prosecution

2011-09-03T04:57:00.000-07:00

There is currently a huge investigation under way at Stepping Hill hospital, Stockport, into how saline solution came to be contaminated with insulin. The contamination is thought to have led to four deaths, and the police are now also considering potentially forty victims, although it should be stressed that not all of those people died. Still, this is of course an incredibly serious matter, and it is absolutely essential that the cause of this contamination is found and dealt with – particularly if it is the result of deliberate tampering.
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.

She has spent the past six weeks in prison, but yesterday was dramatically released when the Crown Prosecution Service decided to drop all charges against her. In fact, Sky News even have a statement from the CPS prosecutor, so let’s have a read of that shall we?

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.”

Radio Four have reported that the charges were made out under the “Threshold Test”, the CPS guidelines for which can be viewed here. In a nutshell, the idea is that if someone presents a substantial bail risk, and not all the evidence is available at the point in time where the suspect would have to be released from custody by law, then a charge can be made, allowing the suspect to be held in custody.

Now, whether the Threshold Test has been applied correctly is something I am not in a position to assess, being neither legally trained nor privy to the details of the investigation. The guidelines make it clear however that this test cannot be used unless “there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case an application to withhold bail may properly be made.” That being the case, were I in Miss Leighton’s position, I would be seeking justification of the perceived flight risk here. After all, bail is a right, and there have to be identified reasons behind a decision to deny it. Certainly there have been no details published that would lead me to consider Miss Leighton a flight risk…

Something else that must be considered is that the Threshold Test cannot be used simply in the vain hope that further evidence might turn up – the prosecutor must have in his/her mind identifiable further evidence, and not merely speculative. So, at some point (after the investigation concludes), I think Miss Leighton needs to be challenging just what this identifiable evidence might have been. After all, she has spent six weeks in custody as a result of it.

Another troubling aspect of the case is the numbers. There have been six charges, relating one presumes to six separate acts given the specific charges (the two types of charge would contradict each other where they applied to a common event). The investigation can’t apparently get ANY of these charges to the point where they have a case in law.

What the hell has happened to the presumption of innocence in this country, and how can the criminal justice system be saved?

Like most impartial observers, I always presumed that the criminal justice system would be professional, rigorous, and hold itself to the highest possible standards as it goes about it’s business. After all, we’re talking about people’s lives. However, on the two occasions that my interest in a case has resulted in my actually attending it, I have been horrified by the conduct of both prosecutions.

We have to presume, in the absence of further evidence, Miss Leighton to be innocent. How is Miss Leighton supposed to resume her career now? Well, I suspect the truth is that this is not something we’ll have to face immediately, as the NHS will doubtless want to conduct their own investigations, as of course is entirely proper under the circumstances. But, assuming that she is cleared (and let’s remember here that the CPS have admitted that the “evidence” is such that they do not even have a case in law, still less one with a realistic prospect of a conviction), what then? Will her managers really trust her? Will her colleagues? her patients?

Justice. Really?

Oh, and finally, my thanks to Matt for the invitation to contribute here. I suspect this will not be my only post...

New "Prevent" policing strategy expects universities to spy on 'vulnerable' Muslim students

2011-09-01T16:44:00.001-07:00

The "underpants bomber" Umar Farouk Abdulmutallab is a Muslim who studied at UCL; therefore, all Muslims studying at universities should be monitored in case some of them turn out to be vulnerable to extremist ideology. This seems to be the thinking behind the new anti-terror guidance being issued to universities by police officers implementing the government's revamped Prevent strategy. The Guardian reports that "University staff including lecturers, chaplains and porters are being asked to inform the police about Muslim students who are depressed or isolated under new guidance for countering Islamist radicalism." The guidance specifically asks staff to identify Muslim students who fit one of a number of "at risk" profiles such as showing signs of depression. Many university staff have expressed disquiet about plans that seem to infringe students' civil liberties.

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.

No knowledge that one is under suspicion and surveillance. No recourse whatsoever. Plenty of opportunity for false positives. Plenty of scope for jumping the gun. This is yet another example of the prevailing attitude in government that it should be doing everything within its power to thwart terrorism, as though terrorism is the biggest problem this country is experiencing and we can't afford to waste a moment. This attitude is instilled in the public and it is amplified and fed back to the authorities in what I like to call the hysterical feedback loop. Whenever the police fail to anticipate and thwart some attack (which they inevitably will because security cannot be guaranteed absolutely) they complain about the need for greater powers, which they are then given. But this is a con. Acts of terrorism are extremely rare. They can certainly happen and they do occasionally, but there has only ever been one successful terrorist attack in the United Kingdom employing the Islamic extremist modus operandi of suicide bombing.

This of course occurred on the 7th of July 2005. 52 innocent people were killed with over 700 more injured. There have been a handful of other attempts which have been unsuccessful. Either the threat is not as serious as we are being led to believe, or the police and intelligence services are doing a fairly impressive job. Whichever way you look at it, it's hard to deny that terrorist attacks in Britain are not nearly as prevalent as they were late last century when the perpetrators were mainly Irish republican dissidents. We seemed to deal with it much better then.

I have little doubt that there are people in this country or outside, probably of the Islamic extremist variety, who as I type right now are plotting some new and yet greater atrocity against Britain or one of its allies. It is the job of the police and the intelligence services to identify and to stop these people who are in fact engaging in criminal activities. It is not their jobs to snoop on ordinary people fitting particular profiles just on the off chance they might one day become receptive to ideas of mass murder. The reality is that very few would. The ones we hear about represent the tip of a very large iceberg whose massive bulk of normal, sane humanity remains happily submerged in anonymity. This is as it should be. The danger of enticement can be mitigated in other ways that do not breach Article 8 of the European Convention on Human Rights.

If people are vulnerable to extremist ideas, then it is the proponents of extremist ideas that we should be chasing down. We should challenge these ideas vigorously and openly. We should build strong moderate support bases at universities to combat the pressures bearing down on disaffected Muslim students from dangerous groups. As suggested by the Federation of Student Islamic Societies, we should engage with Muslim students instead of spying on them. Being Muslim is not a crime and neither is being depressed or estranged from one's family. British Muslims need to know that as human beings and members of British society, they enjoy the same status as their neighbours. They need to know that they will not be treated any differently or trusted any less simply for identifying with a religious faith. I really believe that would help to combat terrorism much more effectively than this cack-handed Prevent strategy being bandied about now.

#TwitterJokeTrial and related posts migrated from Flayland - http://flay.jellybee.co.uk

2011-09-01T14:12:00.001-07:00

Hi. I've just finished migrating all of my old personal blog entries pertaining to the Twitter Joke Trial and other civil liberties matters. These can now be found here in Arsehole Justice, which seems to make sense. Consider any articles older than August 2011 to have been migrated in this way. The original articles still exist in their previous locations, but commenting is disabled and all links have been brought forward.

Your mission, should you choose to accept...

2011-09-01T12:19:00.000-07:00

Hello there. We really need more contributors. There are lots of things we want to write about, but only so much time. If you would like to contribute to Arsehole Justice, please let us know and we'll discuss the ground rules. Here are a few topics we would like to explore, along with some helpful links:

Unite Against Fascism doesn't understand freedom of expression. This is not exactly an issue of justice, but it illustrates a blind spot in justice and public opinion to do with political correctness. All too often this sort of thinking results in people being prosecuted or persecuted for "unacceptable" speech. http://uaf.org.uk/2011/08/sign-now-support-the-right-to-march-against-edl-racists-and-fascists/

"Prevent" officers expecting universities to spy on disaffected Muslim students. https://twitter.com/#!/flayman/status/108470225162350592

Met Police issue Criminal Justice and Public Order Act section 60 blanket orders for all of London over 48 hours of Notting Hill Carnival. This is a ridiculous stretch of legislation allowing random stop and search designed to deal with specific localities, now apparently covering entire cities. http://www.whatdotheyknow.com/request/s60_and_s60aa_authorisations_28t

A mother pleads not guilty to Serious Crime Act charges in magistrates' court, claiming her BBM message was a joke. Magistrates still seem to think she should be indicted. This is, I believe, the first case of its kind where the defendant entered a plea of not guilty at the arraignment. http://www.independent.co.uk/news/uk/crime/mother-denies-trying-to-incite-riot-2347452.html

Coalition government U-turns on scaling back emergency terror laws. http://www.independent.co.uk/news/uk/politics/government-move-to-relocate-terror-suspects-2347547.html

...And really, anything else you think is worthy of a post if we agree. We may cover one or more of these topics in the meantime. Hope to hear from you. Let's show these arseholes that we mean business!

Head of Humberside Police wonders why justice isn't normally so swift

2011-08-30T13:17:00.000-07:00

I read an article in The Independent today that quoted Tim Hollis, Chief Constable of Humberside Police. In the wake of the worst riots the UK has seen in decades, he had this to say:

"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."

If Mr. Hollis doesn't mind terribly, I'd like to take that one. Although defendants have a right to a speedy trial, they also need time to prepare an adequate defence. In fact, they need time to consider a defence. Defendants are innocent until they have been proven guilty as a result of a legal process that does not benefit from being rushed. The swift justice we've seen following the UK riots has impeded some people's abilities to defend themselves properly. This is dangerous and should absolutely never be the norm.

In some cases we saw defendants hauled before the magistrates within a couple days of being charged. People who used social media to comment ironically on the riots were accused of committing the serious crime of incitement. One 17 year old young man was charged with an offence under the infamous section 127 of the Communications Act 2003 for sending a menacing message via a public electronic communications network for a Facebook update and subsequent conversation that resulted in the offending message being deleted after 20 minutes. Had there been more than two days between the charge and the hearing, he might have come to realize that he did not have to enter a guilty plea. That the message was menacing in its context was not disputed. That the defendant had an awareness of this was also not disputed. There was no time to consider an adequate defence.

Hollis then questions "why imprisonment is not used more effectively at an early stage for those who make the lives of the law-abiding a misery on a more routine basis". Again, a person is law-abiding until proven otherwise. This is true even of people who have offended in the past. It's the job of the magistrates and professional judiciary to determine whether bail should be granted. They follow guidelines. I'm sure police would like to see speedier justice in most cases. It makes their jobs easier. However, that's not what justice is for. The administration of justice is designed to protect the innocent, first and foremost. That's every man woman and child, regardless of suspicion or evidence, until the justice system pronounces a verdict. Punishing and rehabilitating the guilty comes second and by a long way. Perhaps Hollis is commenting on the failure of custodial punishment to serve as a deterrent. I can't quite tell what he's trying to say.

To be fair to Chief Constable Hollis, here is the piece he wrote in the Yorkshire Post today that was quoted by The Indy. It is not a bad piece. The tone is overall positive and I agree with much of what he has to say. Unfortunately, his paragraph fourteen ruins it for me. If the swift administration of justice served to take the momentum out of the riots, as he suggests, then I suppose it went some way toward fulfilling the primary duties of the police and the courts to protect the innocent. It was unfortunately full of errors and there are many successful appeals expected. There has already been one successful appeal overturning a custodial sentence. This should never be considered business as usual. That would be arsehole justice.

Shy 19 year old woman of good character could go to prison. LMFAO!

2011-08-25T02:52:00.000-07:00

If you've read some of our recent posts then you may be familiar with the case of 19 year old Hollie Bentley from Wakefield, West Yorkshire. You may have also read or heard about the case in the news. If you did, then you would not have seen what is perhaps the most crucial piece of evidence in the case. The papers have been reporting that Bentley wrote the text "Who's up for it?" in some way referencing a Facebook event she'd created called "Wakey Riots". What the papers are not reporting for some reason is that at the end or her offending remark, she wrote "LMFAO". In case anyone is unaware of this particular text-speak, LMFAO is shorthand for "laughing my fucking arse off". The only place I've seen this reported is here, and that's only because the author was at the hearing and heard the evidence read out.

I don't know why news outlets would choose not to print that little nugget, but I do know it adds nuance to the story. Here's what LMFAO means to me in this context. Hollie Bentley believes, quite rightly I suspect, that the notion of a riot on the high street of Wakefield, West Yorkshire is absurd. That's the crux of the joke right there. It may have other hidden meaning. For example, it is boldly laughing at a prospect that is terrifying, which is a sort of affected bravado. I suppose we'll have to ask Hollie Bentley what she meant when she wrote that. She should do a little soul searching and think carefully about the answer. Her personal liberty depends on it. LMFAO! :(

Social media turns everybody into wankers.

2011-08-24T12:55:00.000-07:00

Social media turns everybody into wankers.

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?

Wanker.

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."

Apologies for linking riot cases to #TwitterJokeTrial and #IAmSpartacus

2011-08-24T12:14:00.000-07:00

I must apologise to the Paul Chambers defence for the use of some hashtags in my attempt to raise the profile of some post riot Facebook cases. It had not occurred to me that linking these events could damage Paul's case; however, it has been pointed out that this is a possibility. Winning the Paul Chambers appeal is the most important thing right now. It may help to quash these other convictions, even those under the Serious Crime Act. I have two motivations for raising the profile of these other cases: 1) people are going to prison, and that's hard; 2) to my mind, each new conviction that goes unchallenged increases public acceptance. Nevertheless, I shall now respectfully refrain from using the #TwitterJokeTrial and #IAmSpartacus hashtags to advertise these cases. Please follow suit.

Hollie Bentley (Facebook Riot Girl) - case referred to Crown Court

2011-08-24T10:52:00.000-07:00

The AJs just keep on rolling in. Today at Wakefield Magistrate's Court in West Yorkshire, a young woman named Hollie Bentley was told that her charge under the Serious Crimes Act would be heard before the Crown Court. On the 9th of August (why do all these seem to be from the same day?), the 19 year old allegedly created a Facebook event called "Wakey Riots" set to take place over the 13th and 14th of August and referred to it either in the description or on the event wall with the text "Who's up for it LMFAO." Clearly a joke. It was nice of her to schedule the riots at the weekend. Very convenient. There were of course no riots in Wakefield. Ms Bentley has yet to enter a plea. A skeletal news story on the BBC web site suggests she has not admitted to performing the act of which she is accused.

My friend Matt Bradley was at the hearing and he has provided this write up: http://www.pitkanary.com/2011/08/24/hollie-bentley-at-wakefield-magistrates-court/. I am bemused. As reported earlier, David Glyn Jones, of Glasinfryn, Bangor, Gwynedd created a similar Facebook event and was charged not under the provisions of the Serious Crime Act but under the much less serious provisions of the Communications Act 2003. Setting all the difficulties with the Communications Act aside, I am at a loss to understand how the CPS felt they satisfied the evidential stage of the Full Code Test with this case. The relevant Serious Crime Act provisions (sections 44-46) impose a significant burden to prove intent, as befits the seriousness of the crimes. I think it would be quite difficult to prove intent here. Nevertheless, it seems the evidential stage has been made out, as a magistrate has referred the matter on. The magistrate stresses the seriousness of the charge, saying "people died in the riots." This is true; however, it is also quite immaterial. The clear intention to incite a riot must be proven. It is not enough that a serious disturbance is a foreseeable consequence of such actions. One wonders whether this would have been referred to the Crown Court had Ms Bentley entered a plea of not guilty.

On the matter of the Serious Crime Act versus the Communications Act, Matt Bradley suggests that the difference may come down to the setting of a place and date for a disturbance to occur, which is the sort of functionality that a Facebook event provides. It's possible that Glyn Jones' story has been misreported and instead of an event, he chose a page or a simple wall post. If this is the distinction that the CPS are making when charging with a serious crime, then it is at best extremely naive. A riot is an event, quite clearly. When a young lady (or man) sees events going on around or near her that are frightening and hard to believe, she might deal with those events by making a joke out of them in order to make them seem less scary and regain a sense of control. If I were to act out in this way on Facebook, I do believe that I would use an event as it is the most apt tool for the job. And of course, the event encourages (or perhaps even forces) one to set a date, place and time. Hollie Bentley almost certainly did create the Facebook event that has gotten her into so much trouble. She also quite clearly meant it as a joke. For goodness sake, she wrote "LMFAO"! How many more of these miscarriages of justice will we sit here and watch as they are handed down? I am not in any position to give anyone legal advice, but it seems to me that Hollie Bentley had better plead not guilty, or else she will be laughing her effing arse off in prison for sure.

Another Facebook related Communications Act conviction. North Wales

2011-08-23T08:57:00.001-07:00

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.

Unfortunately in this case it seems that someone (a former coworker) was concerned and notified her supervisor. Former coworker? Notified her supervisor? I don't get it. Perhaps there's a grudge. At any rate, that would serve as evidence that someone was menaced; however, the Communications Act 2003 s127 does not require that any person is actually menaced (or grossly offended, etc). It does not require that a message is even received. This is through a precedent that has required the prosecution in the Twitter Joke Trial to discharge a narrow burden of proof of intent to commit the offence. The precedent comes from a case before the House of Lords in 2006 called DPP v Collins, which dealt with nuisance telephone calls and voice messages. Section 127 of the Communications Act is unfortunately badly worded, in that in and of itself there is no burden of proof of intent, hence the reliance on case law. Unfortunately the remarks of one of the Law Lords has set a very low threshold for proving mens rea (guilty mind, intent). I explain this in a post from February which I quote below:

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 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...."

Now, this intuition may have made sense where the facts of the case concern a telephone call or voice message, the difference being that the communication is one-to-one and there is a recipient in mind. It is however completely inappropriate when applied to broadcast style messaging as it works in internet social media, which is more like publishing. There's a lot more I could say about this, but I've said it all before. It only takes a bit of time examining the implications to see how dangerous this law is, how chilling to online free speech. People are committing "crimes" that they are not even aware of. Remarks that would be fine if made down the pub are prosecuted when published on Facebook or Twitter. Although it has yet to happen, similar remarks within a blog entry would also fall prey to this law. This has to stop. It is my mission and I won't rest until the Communications Act can no longer be used to dispense Arsehole Justice.

Speedy prosecution of Facebook teen means no time for decent defence

2011-08-18T17:52:00.000-07:00

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: http://www.eadt.co.uk/news/west_suffolk_facebook_riot_teen_was_idiot_1_991897

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."

Links - 17th August 2011

2011-08-17T19:14:00.000-07:00

Some good articles today (or yesterday, or whatever. Leave me alone):

Liberalism and Riots: Cause and Effect? by Matt Bradley (Arsehole Justice contributor)

Civil disorder and looting hits Britain: We have been here before - Bagehot, The Economist

England riots: will harsher sentences act as a deterrent? - Alan Travis, The Guardian

Another Arsehole Justice: Andrew Gilbart QC, Manchester

2011-08-17T07:00:00.000-07:00

http://www.guardian.co.uk/uk/2011/aug/17/facebook-cases-criticism-riot-sentences

Andrew Gilbart QC, made clear why he was disregarding sentencing guidelines when he said "the offences of the night of 9 August … takes them completely outside the usual context of criminality".
"The principal purpose is that the courts should show that outbursts of criminal behaviour like this will be and must be met with sentences longer than they would be if the offences had been committed in isolation," he said. "For those reasons, I consider that the sentencing guidelines for specific offences are of much less weight in the context of the current case, and can properly be departed from."

Regardless of the severity of the offences before the court, this statement is the epitome of arsehole justice. Nothing takes a specific offence out of the usual context of criminality. Proportionality is one of the fundamental principles of British justice. There may be aggravating or mitigating factors to consider, but the sentencing guidelines allow for this. You simply cannot throw out the sentencing guidelines and expect to deliver justice. Also, judge, please be aware that the principal purpose of courts is to protect the innocent not to make examples of people. I'm sure you will be familiar with Blackstone's formulation which tells us that it is better that ten guilty are set free than one innocent suffers. Andrew Gilbart QC, you are quite possibly an arsehole. The jury is still out on that one, but there's no question that this is a clear case of Arsehole Justice.

[NB - Read the rest of that article. David Cameron supports these harsh sentences. Some dude will probably go to prison for stealing an ice cream cone. Arseholes!]

Judge Elgan Edwards QC dishes out some Arsehole Justice in Cheshire

2011-08-16T20:09:00.000-07:00

From the Guardian: http://www.guardian.co.uk/uk/2011/aug/16/facebook-riot-calls-men-jailed

Judge Elgan Edwards QC has dished out some serious Arsehole Justice against the defendants Perry Sutcliffe-Keenan and Jordan Blackshaw in Chester Crown Court. These two men were charged with inciting unrest under sections 44 and 46 of the Serious Crime Act 2007, which carried a maximum sentence of 10 years in prison. Both men received 4 years in prison for creating Facebook pages that appeared to be organizing riots in their local communities, neither of which resulted in any actual disorder and at least one of which was regarded as a joke by its author.

According to the Guardian article linked to above, Judge Edwards stated in his judgement that Blackshaw had committed an "evil act". He said: "This happened at a time when collective insanity gripped the nation..." [Flay here] Erm, actually I think that's what's happening now. "...You sought to take advantage of crime elsewhere and transpose it to the peaceful streets of Northwich. The idea revolted many right thinking members of society. No one actually turned up due to the prompt and efficient actions of police in using modern policing." [Flay here] Or maybe no one took it seriously except for the police. Hard to say.

About Sutcliffe-Keenan, the judge said he "caused a very real panic" and "put a very considerable strain on police resources in Warrington." [Flay here] I'd like to see the evidence of who was panicking. I wouldn't be surprised if it was only the police. The author of the page went to bed and woke up with a hangover, apologized, took the page down and said it had been a joke (sound familiar?). Neither of the two men caused a riot to take place. Nothing happened. You can credit the police for their swift actions; however, one would have thought that perhaps it would be better to use this information to try to catch potential rioters in the act. At any rate, four years after pleading guilty makes a mockery of justice. People serve less time for manslaughter. These guys wrote some words on a web site that caused nothing to happen except a police investigation. What really bothers me about this is that it is a natural response in human beings who are in denial about terrible things going on around them to make make light of the situation. Some of that may have been what happened here. For that reason and others, this seems like a clear case of Arsehole Justice.

When the government knows better than the copyright owner

2011-07-20T11:05:00.000-07:00

It seems the Departments of Justice and Homeland Security under the Obama White House are increasingly viewing themselves as the guardians and protectors of all United States intellectual property. Operation In Our Sites, launched by the Immigration and Customs Enforcement branch of Homeland Security in June 2010 has seen some 90 internet domains seized that were associated with websites believed to be engaged in the illegal distribution of copyrighted materials or sale of counterfeit goods. Earlier this month ICE made the alarming claim that they believe any web domain that sits under the top level domains of .com or .net fall under US jurisdiction because the DNS for those TLDs is routed through Verisign's switches located in Virginia. This was reported in the Guardian newspaper. According to Erik Barnett, the agency's assistant deputy director, this allows the United States to seek extradition of foreign nationals who use .com or .net domains in their law-breaking activities, regardless of the locations of the nationals or the servers and regardless of whether the activities are legal in the local jurisdiction.

This stance became clear as ICE sought from the British government the extradition of a UK national who had created a web site that allowed a user community to post links to video content, some of which had been made available on sites such as Youtube without respecting copyright. In the United Kingdom, Richard O'Dwyer's tvshack.net website (in the aforementioned article) would enjoy the "mere conduit" defence as it was simply a platform that serves a user community who provide the content. It is arguable whether a URL can even be treated as a copyrightable work in any context. A Uniform Resource Locator is nothing more than a signpost to the resource that a web browser is seeking. The content delivered through a URL can change at any time, so it is hard to see how a URL can represent a work any more than a telephone number can represent a person. It seems however that in the United States, this is beyond question.

The very worrying development that I've seen today however, makes this case seem insignificant. Yesterday Aaron Swartz, a fellow at Harvard University's Center for Ethics and an activist for open knowledge, was arrested and charged with offences under the Computer Fraud and Abuse Act. The alleged offences include hacking into JSTOR, a non-profit organization that hosts academic journals, via a computer room at MIT and then downloading millions of research papers onto his laptop computer. JSTOR charges for its content, and research universities typically pay a flat fee for access and then make the digitized journals available for free to faculty, staff and guests for research purposes (as one might reasonably expect). The indictment, which can be read at the bottom of the linked article, charges that Swartz used subterfuge to gain unauthorized access to MIT's computer network and used software tools and trivial measures to automate the downloading of content and to circumvent the weak efforts made by MIT and JSTOR to prevent such mass downloading. Eventually, he was found out and somehow the FBI got involved. It's not clear how the Feds initially were activated, but it is clear that both JSTOR and MIT were eventually satisfied that there was no harm done as Swartz gave assurances that he did not intend to distribute the articles that he downloaded.

One would have thought that the matter might end right there, but one would be wrong. The US Attorney's Office decided to press ahead with a prosecution for felony computer hacking, worth up to 35 years in prison and a $1 million fine. Because the files were accessed from a computer in Massachusetts and the JSTOR servers are located in another state, this rises to federal jurisdiction. Here is what JSTOR have to say on the matter:

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.

JSTOR, in other words, are not really bothered about this breach and having engaged in civil discourse with Aaron Swartz were prepared to take him at his word that he had no intention of distributing the materials. Why then is the US Attorney's Office so keen to prosecute Swartz for what amounts to little more than the violation of an online service's terms of use? Since when is it a crime, federal or otherwise, to violate a web site's terms and conditions? I would have thought this was clearly a civil matter. More importantly, why is the federal government enforcing a web site's terms and conditions when the company that owns the website is not asserting them? The files that Aaron Swartz downloaded were ones he was free to download as a guest of MIT. He just wasn't supposed to take so many. He may have gained unauthorised access to the MIT computer network, but that would be between himself and the university with no state lines having been crossed.

I find this approach deeply troubling as the US Attorney's Office is sending a clear message that it has a mandate to pursue a prosecution on copyright grounds even against the wishes of the copyright owner. JSTOR act as an agent for the journals who own the copyright of selected works, and so they have a responsibility to ensure that royalties are collected and properly distributed. If JSTOR are willing to take the risk that Mr Swartz will not redistribute the materials he downloaded, they must believe that the risk is insignificant. There is nothing to suggest that any of the journals that figure into this story have sought a remedy for copyright infringement. What we have here is the federal government taking charge of enforcing copyright even when the copyright owners are not bothered about it. That makes no sense. Surely as a copyright owner who licenses content I can decide on a case by case basis whether or not I want to enforce that license. It is not for the federal government to intervene like some sort of guardian angel. This sets a terrible precedent. Whatever next? Will the federal government decide that all content should be governed by commerce whether we like it or not? Will it be un-American of me to give away for free the content that is of my own creation? Sounds silly. I'm not laughing though.

Where should the right to privacy begin and the right to speak freely end?

2011-05-24T08:28:00.000-07:00

I'm a strong proponent of freedom of speech. I cannot and have no wish to deny this. The Paul Chambers so-called "Twitter Joke Trial" has shaped my views in this area. I have even at times half seriously referred to myself as a free speech fundamentalist, although in reality I am not. I understand that there are and ought to be limits imposed on what a person can say. These limits depend mainly upon the context of the speech act in question and the rights of other people. I have the right to say something that you find offensive. You do not have the right to be free from offence. You have the right not to be threatened and abused. I do not have the right to direct threatening and abusive language at you. The right to privacy is enshrined in the laws of many countries, including the United States and every member of the European Union. The European Convention on Human Rights, which is implemented in the UK by the Human Rights Act 1998, specifies among other things the rights to free expression and privacy. Naturally these two rights are often in tension. When this happens the judiciary must apply a consistent approach to deciding which of the two should take precedence in any given case. The case of CTB v News Group Newspapers has presented a unique challenge to the judiciary for reasons that I do not wish to explore in great detail; however, I want to talk about this case in particular because I have a view of privacy that seems to differ sharply from the judiciary in this country and in Strasbourg. Quite to my surprise, my view of privacy also seems to differ from some of my friends who otherwise have very similar views to my own where free speech is concerned. Before I go any further, let's look at the text of Article 8 of the ECHR which is implemented in HRA98:

ARTICLE 8
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

There are two separate statements here. At this point I need to make clear that there is no public authority attempting to interfere with the privacy rights of CTB. Instead, we have a newspaper group and a private individual who wish to breach the privacy. Because of this, the second statment has no bearing on the case. The first statement says "Everyone has the right to respect for his private and family life, his home and his correspondence." The facts of this case are very roughly as follows: A woman called Imogen Thomas had an alleged affair with a professional football player who is married with children and who wishes not to be named; Imogen Thomas desires to tell the story of her relationship with the football player identified in the court documents as CTB and News Group Newspapers Ltd. wishes to purchase the story for publication in their newspaper, The Sun; The claimant CTB sought and Justice Sir David Eady granted on the 14th of April 2011 a temporary Anonymised Injunction preventing the disclosure of the claimant's identity. In his judgement, Eady cites evidence before him, tending to suggest blackmail, as one of the major reasons for the granting of the injunction. He is quick to point out that the evidence has not been properly tested and that he cannot come to any final conclusion at that stage. (See para 9). The evidence also appears to suggest that Newsgroup were using Imogen Thomas with her consent to set a trap for the claimant in order to obtain additional materials for their story. Because of this, Eady felt it was reasonable that the claimant be excused from serving the respondent Imogen Thomas in advance of the 14 April hearing (see para 12). What this effectively means is that Imogen Thomas was unaware of the action until she was served with the injunction and was not afforded the opportunity to state a case. She was at that point and is still muzzled from revealing the identity of the sports star with whom she had an affair, to any party other than advisors and close friends and family (I am led to believe), who are then also bound.

Case law and what is referred to as "the new methodology" (para 23) requires first that the court decide whether the subject matter of the threatened publication gives rise to a "reasonable expectation of privacy". In this case Eady feels (and is indeed supported by case law) that there is no doubt on that score, as it is concerned with "conduct of an intimate and sexual nature and, what is more, there has been no suggestion in this case that the relationship, for so long as it lasted, was conducted publicly". Here is where I find myself differing sharply with the judge (and evidently also case law). I do not believe that conduct of a sexual nature is necessarily intimate, nor do I believe that the fact of such a relationship is necessarily entitled to privacy. The salacious details of such a relationship may well be, be not the fact of it. What I see here is that there was a relationship involving two people and one of them wishes to keep it secret while the other wishes to disclose it. I would argue that contrary to intuition, there is a greater expectation of privacy in a relationship that is conducted publicly. That is because in a secret relationship such as this between one married and one unmarried party, the former is at great risk from exposure while the latter is not. It is hard for me to see how such a relationship could foster the necessary levels of trust in order to be regarded as intimate. The view (no matter how sincerely held) on the part of CTB that the fact of his relationship with Imogen Thomas should be accorded protected status should she wish to reveal it does not therefore seem reasonable to me. As such, if it were up to me this application would have fallen at the first hurdle. That she should be even temporarily prevented from disclosing personal details of her own life because of a perceived obligation of confidence that she owes to the claimant strikes me as wrong and also dangerous. It is made worse by the fact that once the information was already leaked to the wider public, the further dissemination of that information was and still is in contempt of court. In my opinion Article 8 should not generally be used to prevent one from revealing information concerning the activities and aspects of one's own life even where it intersects with another. This should be a matter of ethics, not a matter of law. Article 8 should rather be used to prevent and/or remedy unauthorized access to private information about a person, i.e. blatant press intrusion into the private sphere. Examples of this might include a journalist going through someone's rubbish bins, or a newspaper using fraud and deception to obtain information. If the allegations against NGN and Imogen Thomas are true, then this is indeed a very serious breach of privacy and is indeed also attempted blackmail. However, Imogen Thomas was not afforded the opportunity to state a case when the injunction was granted and so the evidence before the judge was one sided. It is therefore in my opinion wrong to gag her. The final paragraph of the judgement is one I find particularly galling:

Moreover, in so far as Ms Thomas wishes to exercise her Article 10 right by selling her life story, she is entitled to do so, but only subject to the qualification that she is not thereby relieved of any obligation of confidence she may owe, or free to intrude upon the privacy rights of others: see e.g. McKennitt v Ash, cited above, ...

The implication is that since CTB does not wish to be named as having had an extra-marital affair with Ms Thomas, she may never publicise this information, regardless that it happens to be true and a part of her own life. I'm sorry, but no. The information was lawfully obtained as the result of shared experiences and she is an autonomous human being. Because of this I also take issue with paragraph 33:

It follows that one can rarely arrive at the answer in any given case merely by reference to generalities. It must all depend upon the particular facts of the case. It follows too that there can be no automatic priority accorded to freedom of speech. The relative importance of the competing values must be weighed by reference to the individual set of circumstances confronting the court. Of course the court will pay particular regard to freedom of expression, but that does not entail giving it automatic priority. All will depend on the value to be attached to the exercise or proposed exercise of that freedom in the particular case. It will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another's right to publish what has been described in the House of Lords as "tittle-tattle about the activities of footballers' wives and girlfriends": see e.g. Jameel v Wall Street Journal Europe SPRL [2007] 1 AC 359 at [147]. It has recently been re-emphasised by the Court in Strasbourg that the reporting of "tawdry allegations about an individual's private life" does not attract the robust protection under Article 10 afforded to more serious journalism. In such cases, "freedom of expression requires a more narrow interpretation": Mosley v UK (App. No. 48009/08), 10 May 2011, BAILII: [2011] ECHR 774, at [114].

The problem with this is that the "tittle-tattle about the activities of footballers' wives and girlfriends" and the "tawdry allegations about an individual's private life" should not be regarded solely as the object of journalism. They are first and foremost the reflections of a party to the "tittle-tattle" who ought to be permitted to speak about them. If a newspaper wished to publish some details that no other party wished to have told, then I can follow that reasoning. The paragraph is referring to the newspaper's freedom of speech as pertaining to the publishing of information it has obtained. It is another matter when applied to Ms Thomas' freedom to recount her life. If there was some way to prevent newspapers from publishing the information while still preserving Ms Thomas' right to communicate it freely, then that would be far preferable. The fact that the information is not in the public interest is to my mind immaterial. It should be Imogen Thomas' right to speak freely as an interested party. It seems to me that Eady's interpretation is that Ms Thomas should not even be permitted to publish a personal blog of her account. Had she done so before the injunction was granted, she would have been in breach of CTB's Article 8 protections. I do not agree.

The issue has been raised a number of times surrounding the right to privacy that the family of CTB deserve. The revelation of the affair could have potentially devastating effects on their private family life, including severe marital distress and teasing and bullying of children in the playground. I appreciate this and it is indeed sad that our attitudes to marriage and sex can cause such harm to others. However, I see this as an indirect consequence of the revelation of the affair, which is after all a consensual relationship between two people who knew the risks should the truth come out. As much as we would like to believe that we can always shield our family from the consequences of our actions, this is simply not practical in real life. A husband, wife, father, mother, son or daughter may be convicted of a crime for which they are incarcerated for a length of time. Certainly this will have serious and profound negative implications for private family life. Likewise will a serious illness. However, it is folly to think that we should fail in our duty to carry out justice or communicate unpleasant news because of the harm it may cause to some. For perfectly innocent reasons, parents may get divorced and the children may suffer as a result. Children may be bullied for all sorts of other reasons that are not within our control. It is unpleasant, but as parents we must try to raise our children to deal with the things in life that are not fair. Kids are tough. Adults are too. With proper support they can get through difficult times with surprising resiliency. The results can even be beneficial ultimately. It is in my opinion a serious over-reach of the judicial system to interfere with speech for the purposes of preventing any harm that speech may indirectly cause to someone else owing to social attitudes. So long as parents are fit to raise their children, it is not for a judge to decide what is best for them.

In conclusion, I think these privacy injunctions are handed out too freely. They have also been shown to be farcically ineffective in the age of social media. There may be some use in certain narrow cases, but I don't think this case calls for one. Certainly the idea that an injunction can prevent blackmail seems ludicrous. Blackmail is about coercion in exchange for keeping quiet. Once the "cat is out of the bag", the blackmail game is up. Why not instead build a case for the charge of blackmail? The threat of an attempted blackmail charge with sufficient evidence to back it up ought to accomplish the same goal. Privacy is important to protect pre-emptively though. You cannot put the genie back in the bottle. So what can we do about it? First of all, I think we should review our interpretation of Article 8 which I feel has been too broad. Second, perhaps instead of a gagging order we should allow relief in the form of a court resolution which states that there has been accepted an objection to the publication of information which is deemed to be private and believed to have been obtained without authorisation. The resolution would make clear that publication of the information covered would incur greatly more severe penalties, both civil and criminal, should it be found at a later date to have been obtained unlawfully. This might give tabloid newspapers and "gold diggers" like Imogen Thomas some pause.

Why is free speech so difficult for some people to comprehend?

2011-04-11T09:40:00.000-07:00

I haven't been very good about writing in my blog recently. The urge comes and goes. There's something I wanted to write about last week, but I waited too long and lost the desire. Something I've just seen has brought it back though. What I'd intended to write about this time last week was the attitudes of a couple of US Senators towards free speech. The Senators are Majority Leader Harry Reid (D-Nevada) and Lindsey Graham (R-South Carolina) and the context is the recent burning of a copy of the Quran by Florida pastor Terry Jones (the same one who threatened to burn copies of the Quran last year). The two Senators are upset and rightly so by the rioting in Mazar-I-Sharif, Afghanistan that killed eight United Nations workers. But somehow they overlook the fact that these killings were done by people who share a warped sense of justice, regardless of how or even whether they might have been incited to violence.

On Sunday the 3rd of April, Senator Reid had this to say to Bob Schieffer on CBS's Face the Nation explaining that some members of Congress were considering some kind of action in response to the Quran burning, a political expression protected by the First Amendment: "Ten to 20 people have been killed," adding "We'll take a look at this of course...as to whether we need hearings or not, I don't know." On the same program, Senator Graham said the following (which would be laughably ridiculous if he weren't a law maker):

"I wish we could find a way to hold people accountable. Free speech is a great idea, but we're in a war. During World War II, we had limits on what you could say if it would inspire the enemy. So, burning a Koran is a terrible thing but it doesn't justify killing someone. Burning a Bible would be a terrible thing but it doesn't justify murder. Having said that, anytime we can push back here in America against actions like this that put our troops at risk we should do it, and I look forward to working with Senators Kerry, and Reid, and others to condemn this, condemn violence all over the world based on the name of religion. But General Petreaus understand better than anybody else in America what happens when something like this is done in our country and he was right to condemn it and I think Congress would be right to reinforce what General Petreasus said."

So much to pick apart here. Free speech is not just a great idea. It is the cornerstone of a healthy democracy. It must be protected at all costs, barring certain well established exceptions where actual harm is directly caused. Graham is right that Koran burning is a terrible thing (to some) and that it doesn't justify killing someone. Why not leave it there? That says it all. Pastor Jones is in no way responsible for the killings of innocent people in Afghanistan. You might as well claim that the Martin Scorcese film Taxi Driver is responsible for the attempted assassination of President Ronald Reagan or the rock group AC/DC is responsible for the work of serial killer Richard Ramirez, who claimed to have been influenced by their track Night Prowler. Some have tried to make the latter claim, but thankfully these people have always been a sliver of a minority. It is worrying though that this attitude is becoming acceptable and even mainstream, particularly where terrorism is concerned. The people responsible for the killings are the rioters and the mullahs who spurred them on.

Terrorism is nothing new, although it has taken on elevated political significance since the al-Qaeda attacks on the World Trade Center and the Pentagon in September 2001. The history of terrorism is thought to go back to the beginning of the first century AD, when a Jewish extremist group called the Sicarii Zealots attacked collaborators with Rome. Why should such an ancient form of violence suddenly threaten our core freedoms? Freedom of speech is a great idea especially because we are at war. It is a war that the West will probably always be waging. Although he refers to World War II, Graham is most likely thinking of World War I when President Woodrow Wilson passed the Espionage Act 1917 and the Sedition Act 1918. The second of these two laws was a horrible overreach that forbade the use of "disloyal, profane, scurrilous, or abusive language" about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt. It was thankfully repealed two years later. This goes to show just how fragile freedom of speech can be, particularly in times of war. The Espionage Act is still in force today and Congress are attempting to use it to prosecute Julian Assange of Wikileaks.

Does the action of one crackpot in Florida put our troops at risk? No. That would be attaching too much importance to Pastor Terry Jones. Let's not inflate his ego or next thing he'll be setting mosques alight. What might put our troops at risk is United States foreign policy. I believe General Petraeus would agree. As Jim Treacher of The Daily Caller says in the headline of his article from the 4th of April, "The President of the United States bombs a Muslim country, and some nobody in Florida burns a Koran. Guess which one's to blame for rioting in Afghanistan?" Yes, the rioters were incited to violence. However the blame for this lies squarely on the shoulders of a few angry mullahs, not some idiot halfway round the globe who burned a book.

What got me thinking about this again was something my friend Padraig Reidy of Index on Censorhip wrote about the Independent columnist Yasmin Alibhai-Brown and her "interesting" take on freedom of speech as she outlined it in her column today. Some may remember Alibhai-Brown for her involvement in a case that briefly paralleled the Twitter Joke Trial, when she initially sought the prosecution of conservative councillor Gareth Compton over a provocative comment he made about her on Twitter. Free speech seems to be a difficult concept for some people to grasp. Our prejudices sometimes get in the way. This is precisely why it must be protected.

Is America Losing its Sense of Liberty?

2011-03-04T09:07:00.000-08:00

This week I made a contribution to the podcast at The POD delusion. It was meant to go up last week, so some of the references are not quite timely. Following is the script I was speaking from. The text is slightly different, as the audio version was edited for length.

America. Land of the Free. Home of the Brave. Country of my birth. The United States of America was founded at the end of the 18th century by visionaries who sought to create “a more perfect union” and “secure the Blessings of Liberty” among other lofty goals. A government of the people, by the people, for the people. And underpinning all of this was the grand idea of Liberty. “Give me liberty, or give me death” proclaimed Patrick Henry to the Virginia Convention in 1775. Give me Liberty or give me death. This is a demand for freedom from tyranny - one that can scarcely be ignored. Agreement among the delegates to the Philadelphia Convention of 1787 to enact a Bill of Rights helped to ensure the ratification of the Constitution itself, addressing the concerns of some of the Founding Fathers that the Constitution did not protect the fundamental principles of human liberty. The Bill itself borrowed heavily from the English Magna Carta and consisted of the first ten amendments to the US Constitution.

All this talk of liberty, but what is it? At its most basic, liberty refers to the natural condition whereby a human being is free from outside compulsion or coercion. Freedom is therefore limited by the extent to which one’s actions infringe upon the freedoms of another. This is certainly the meaning of liberty that is ascribed to the Constitution. Surely with its rich history of rugged individualism and its stalwart bootstrap culture, America the free would always jealously guard basic liberty, no? I’d always thought so. But I’m worried now. I worry that Americans are losing the sense of liberty and what it means to be truly free. Americans seem ever more willing to tolerate the intrusion of government into their private lives for the sake of some false sense of security. It may not be too late, but when I think of all that has been lost in the last decade I don’t know quite how to go about getting it back.

Last year an American man from Seattle, Washington called Phil Mocek was arrested at the airport in Albuquerque, New Mexico after he refused to stop filming his security screening by the Transportation Security Administration (TSA), a division of the Department of Homeland Security responsible for travel security. He also failed to provide identification on request. Last month after a two day trial, Mr Mocek was found by a jury to be Not Guilty of all charges brought against him without even presenting a defence. The video taken by Mr Mocek that the police used as evidence showed that he had politely and calmly asserted his rights at all times. TSA agents and police who testified were forced to admit in cross-examination that there were no laws prohibiting the use of photographic or audiovisual recording equipment in the public areas of an airport, nor is a ticketed passenger required to show ID for a domestic flight, nor can the TSA or police legally interfere with his ability to travel by air unless the police have a reasonable basis for believing that a crime has been or is being committed. The Not Guilty verdict was a major victory for liberty and common sense, yet it’s difficult to see how anything will change as a result of it. The TSA do not publish their standard operating procedures, which would inform members of the public of what powers TSA agents have and what travellers must submit to. The Department of Homeland Security refused to furnish the TSA’s procedures when requested under the Freedom of Information Act, instead merely furnishing the titles of these procedures. Even these had never previously been published. How can a traveller assert his or her rights in the face of such arbitrary authority without a published code to refer to? How can the legislature, the judiciary and “We The People” decide whether these procedures are necessary and in the public interest unless they are published? I’m genuinely at a loss. I’ve written to my Congressman, both state Senators, Secretary Janet Napolitano and President Obama. I’m not expecting much of a response. Phil Mocek has incurred thousands of dollars in legal costs for which he has not been compensated, nor have there been any disciplinary proceedings against any of the agents or officers who abused their powers, nor has there been any corrective action taken by the agencies involved. How did we get here? How could America allow the creation of a security apparatus that is unaccountable? Is this what it takes to feel safe at home? I don’t feel safe. Land of the Free. Home of the Brave.

Yesterday I learned that the Department of Correction (DOC) of the state of Maryland has a blanket policy whereby any new hires or recertifications are required to submit to a background check and to provide the government with their social media account usernames and personal passwords.

Yes. That’s right. Let that sink in a minute... and let’s continue. Raise your hand if you can think of anything that is wrong with this. Raise both hands if you’ve managed to work out that there are many aspects of this policy that are deeply disturbing and in fact outrageous. In a letter to the DOC by the American Civil Liberties Union acting on behalf of an employee undergoing recertification, the ACLU describes this policy as “a frightening and illegal invasion of privacy for DOC applicants and employees -- as well those who communicate with them electronically via social media”. The rationale, according to one investigator, is “to enable the government to review wall postings, email communications, photographs, and friend lists, in order to ensure that those employed as corrections officers are not engaged in illegal activity or affiliated with any gangs”. This is equivalent to a demand to read an applicant’s private diary and rummage through the photo albums on his shelf – in his home. Oh, and also to read letters that his friends have sent to him and to rummage through their personal effects as well. This makes me livid. What gives a government department (or any employer for that matter) the right to do this? Nothing. It violates at least two of the first ten amendments. Some bureaucrat thought this sounded like a good idea and nobody thought to challenge it. Led to believe he had no choice but to comply, officer Robert Collins surrendered his Facebook login details to his employer. Ask yourself what you would have done in his place. Land of the Free.

In July 2010, hacker extraordinaire Jacob Applebaum, creator of the Tor privacy and security project and Wikileaks volunteer, was detained at Newark’s Liberty Airport in New Jersey after a return flight from Holland. Applebaum was pulled aside by Customs and Border Patrol agents who informed him that he was selected for a random search. According to sources, Appelbaum, a U.S. citizen, was then taken into a room and frisked, and his bag was searched. Receipts from his bag were photocopied, and his laptop was inspected. He was then questioned by officials from Immigration and Customs Enforcement and from the US Army. When he asked to speak to a lawyer, he was told that he was not under arrest and therefore did not have the right to legal counsel. His laptop was returned to him after three hours, but his three mobile phones were seized. During this time the officials asked him about his Wikileaks activities and his opinions about the wars in Iraq and Afghanistan and God knows what else. Applebaum declined to answer without a lawyer present. He was not allowed a phone call.

I would be grateful if someone could please explain to me how a person can be detained against his will and questioned by government officials with the possibility of self-incrimination without in fact being under arrest. As far as I know, this is what it means to be under arrest. This is the very definition of under arrest. A law enforcement official cannot simply say “you are not under arrest” in order to get around the pesky problem of constitutional rights. That’s a bit like pouring a bucket of water over someone’s head and then saying “you are not wet”. Yet they will do this because they have the power to. They ought not to have this power, but they do because we allowed it by default. Home of the Brave, my arse.

Governments always want more power over their governed. The national security gambit is the most sure fire way of grabbing more. Our security services manage to convince us that we need to give them more power so that they can more effectively keep us safe from harm. They feed on our fears and remind us that we expect them to do everything in their power to keep us safe. We believe them and hold them to account when they fail, as they inevitably will, to keep us completely and absolutely safe. They convince us yet again that they need more power, and the hysterical feedback loop begins its next cycle. It must stop. America, please wake up and take back what is yours before it is too late. When government grants itself new powers it is very reluctant to give them back. Emergency powers, which were only ever meant to be temporary, somehow manage to remain in effect for years, even decades. The threats don’t retreat; they remain. Total security in a democratic society is a pipe dream. But we must take a risk based approach to managing threats, otherwise the biggest threat to peace and prosperity, the biggest threat to life, liberty and the pursuit of happiness is the government monster that is incapable of protecting its citizens from itself.

#TwitterJokeTrial - Throwing Stones at the Crown's Case

2011-02-04T04:49:00.000-08:00

I haven't written about the so-called Twitter Joke Trial (some know this as the I Am Spartacus campaign) for some time. There hasn't been much to write about. A High Court appeal is on the horizon and anything happening is behind curtains. Some background in case you need it. This page provides links to more or less everything of interest ever written about this important legal case which threatens online free speech. You will find perhaps the most concise beginners guide to the case here.

What has prompted me to return to this case is a recent news item about the resolution of a similar case involving a conservative councillor named Gareth Compton and a journalist called Yasmin Alibhai-Brown. Read all about that here. Compton was arrested in November 2010 and charged with sending a menacing message, which is an offence under section 127 of the Communications Act 2003. This is the exact same charge under which Paul Chambers was prosecuted for his unfortunate Twitter update that suggested ironically that he would be prepared to blow up an airport. Both were regarded by their authors as ill-conceived and daft attempts at humour. One man has been found guilty, while the other will not be prosecuted. In a statement from the Crown Prosecution Service we learn that "Ms Alibhai-Brown has refused to make any complaint to the police on the matter and the member of the public who initially reported this mater[sic] has also refused to provide the prosecution with a statement." And perhaps crucially, we are told the following:

"A file was then submitted to the reviewing lawyer who has carefully reviewed all of the evidence, as well as the fact that we have no statement of complaint, and they have decided there is insufficient evidence for a realistic prospect of conviction."

So the CPS have concluded that the evidential part of its two part Full Code Test is not satisfied in this case. Part of the reason for this is that there is no statement of complaint. Paul Chambers was very unlucky when he was charged in January 2010. The South Yorkshire CPS had mistakenly believed that a section 127 offence carried a strict liability. Paul was told that as he had admitted to committing the act for which he had been charged (the actus reus), he had no choice but to plead guilty. A strict liability offence does not require proof of the intention to commit the offence (the mens rea). Because of this, the CPS concluded that the evidential test was satisfied as a matter of course. Paul's initial guilty plea ensured that. Had Paul received better legal advice in the beginning then one imagines that the entire case would probably have been dropped then and there. In fact I have it on good authority that the CPS would not have pursued a prosecution under section 127 had they been aware that mens rea was required. A 2006 precedent in the House of Lords, DPP v Collins, determined that there is a burden of proof as to intent in a section 127.1 offence, albeit a rather weak one. The CPS' ignorance of this case law is inexcusable and worthy of strong censure. Gareth Compton can thank Paul Chambers (as well as criminal lawyer and legal blogger Jack-of-Kent) for the Crown's edification on this point of law.

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. I consider it extremely unfair to expect a person to be aware of all the various ways in which his electronic message (taken out of context) might be interpreted. This is a particular problem in these new forms of broadcast style communication where we often forget that our messages might be viewed by people who do not know us.

But that's a lot of nuance that we don't really need to discuss right now. What's important is that in the case of R v Paul Chambers, the prosecution has maintained that it is not necessary for a message to be received in order for it to constitute an offence. They have used this reasoning to convince two judges and a pair of lay magistrates that the opinions and reactions of all the various people whom we know received and read Paul's message can be disregarded. All the officials (from airport duty manager Sean Duffield, through to the interrogating officer) concluded that the message was not threatening. "Non-credible threat" is the term that was used by the airport security staff, which is the lowest designation that can be given to any potential threat. The interrogating officer wrote in his notes "There is no evidence at this stage that this is anything other than a foolish comment posted on Twitter as a joke for only his close friends to see", a piece of evidence that was only supplied to the defence on appeal. None of Paul's nearly 700 timeline followers thought that there was any cause for concern after having read his tweet. Had any one of them replied to Paul with concerns he would have had the opportunity to apologize and clarify. Had Sean Duffield or the airport or the police contacted Paul informally he could have set the matter to rest. Most imporantly though, there was no complaint of any kind. I defy anyone to produce a complaint about Paul's tweet in any form prior to his arrest. There was none. Duffield was duty bound to report the incident as per the airport's zero tolerance policy. He is not permitted to rely on his common sense judgement. His report cannot be regarded as a complaint.

How does the CPS statement, to the effect that the lack of any complaint makes the prospect of a conviction unlikely, square with its case against Paul Chambers? There is clearly a double standard at work here. Many of us have long suspected that this case was a stitch-up. In other words the Crown, knowing that there was insufficient evidence to prosecute under the original charge arising from the Criminal Law Act 1977, decided that the incident was of a sufficiently serious nature and in the public interest (given its association with airport travel and terrorism) that it warranted a criminal charge. So they set about finding one and struck upon this obscure communications statute, which was then incompetently misconstrued and misapplied. This is my opinion. I am not leveling an accusation at the Crown Prosecution Service, but I have yet to be convinced otherwise. It seems to me now though that the CPS have come to realize that their misapplication of this law calls for the prosecution of every poor fool like Compton who finds himself swept up in their dragnet. Clearly this is a herculean task (as so many of us have liked to point out), and it seems they no longer have the stomach for it. I'd like to think that the CPS will now drop this case before it descends any further into farce. On the other hand, I do want to see a successful appeal to the High Court that will create a more appropriate precedent for the future than DPP v Collins, in which the Lords were unable to see the ramifications of their judgement beyond the narrow scope of nuisance telephone calls. The next couple months should be interesting.

Response to FoIA internal review request for costs of Paul Chambers prosecution

2010-11-25T13:06:00.000-08:00

Today I received a response to my request for internal review of the answer to my FoIA request about the costs of the Paul Chambers prosecution. Here it is:

FREEDOM OF INFORMATION ACT 2000 REQUEST – Internal Review

I refer to Freedom of Information request 2484, the CPS response and your subsequent request for an Internal Review dated 20 October 2010.

Your original request was regarding the costs of the prosecution against Paul Chambers.
Our response to you advised that the case was ongoing and next court of hearing on 11 November.
You were unhappy about the response received and requested an internal review.

At the time of your initial request the information that you requested was not held. I have decided to uphold Ms Kadir’s decision.

However, I can now confirm that the total cost applied for by the prosecution was £2,600. This comprised:

£600 Magistrates Costs (Previously awarded following his conviction)
£620 Crown Court Costs
£720 Counsel’s Preparation Time (9 hours agreed)
£330 Counsel’s Fee Day 1 of the Appeal Hearing
£330 Counsel’s Fee Day 2 of the Appeal Hearing

The CPS does not capture the costs of its staff in the management of case files.

If you are not content with the outcome of this internal review, you have the right to complain directly to the Information Commissioner, who can be contacted at:
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Now. I think this is ludicrous if true, but I'm told by a third party that it may well be. Unlike private sector solicitors, the CPS don't bill time against matters. They should. It doesn't seem like a very good way to account for public money. We already knew about the £2600 claim for costs as this was disclosed during the appeal on sentencing. Next stop is the Information Commissioner I guess, but I'm not expecting much from that quarter.

I'm losing sleep

2010-11-15T17:21:00.000-08:00

I'm losing sleep over the Twitter Joke Trial case. Or more accurately I'm sleeping at odd times, as with the nap I had after dinner this evening until 11pm. And now I'm up and doing "work" on the case.I do this because I feel I have to do whatever I can. I'm not sure what I can do really. I'm not sure what any of us can do, not even the lawyers. But I do it because an injustice has been done and it needs to be rectified. A man, who I'm 100% certain did not mean any harm, has been made into a criminal through the misapplication of a law. It could have been me and it could have been you. If you don't see this then please don't bother to comment here. I've written lots about this case already and I'm tired of having to explain it from square one. I'm tired, yes.

I hope Paul Chambers decides to fight on, but I will understand and abide by whatever decision he makes. It will be a tough fight. We may be able to shore up this legal sinkhole without the Twitter Joke Trial as an ongoing case. He needs to know that the support will be there, both morally and financially, should he choose to continue. But he also needs to know that it's okay to stop. I saw the man last Thursday and his hair is looking decidedly more grey than when we met in July. He's 27 years old. In five years the criminal record will lapse. All he needs is a quiet life and a job and he'll be fine. I'd like HHJ Jacqueline Davies to know that this case has nothing to do with me personally. I did not know Paul Chambers or "the woman called Crazy Colours" before the unfortunate event. My involvement is voluntary and out of concern. Perhaps I am not an ordinary person after all, because I won't rest until your judgement is held up as a model of judicial insanity. I won't rest, but I will sleep if I can. Starting now, good night.

I guess the joke is on me

2010-11-14T13:34:00.000-08:00

I had arguments with a few people on the Guardian Comment-Is-Free back in May shortly after Paul Chambers decided to appeal his conviction. I recall one person in particular telling me that Paul would be stupid to appeal his conviction. The decision was right and he would surely lose, he said. I said I'd be willing to bet £1000 that the appeal would succeed. I was that confident. Well, I guess the joke's on me. Now we are facing a very difficult situation indeed. The use of section 127 of the Communications Act 2003 to prosecute Twitterers making offhand remarks has been twice legitimized in court. Judge Jacqueline Davies in denying the appeal stated that Paul's tweet was "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." I am indeed alarmed, but not in the way she suggests. What do we do? Where do you draw the line?

I've decided on a bit of a legal thought experiment and I invite anyone to chime in with your views on this. It goes like this:

Suppose I place an update on Twitter saying "I've decided to blow up Heathrow Airport. I'll post a photo as proof once I've done it." And let's say that what I had in mind all along was to take a photo of Heathrow Airport (perhaps even an aerial shot from Google maps) and blow it up onto an oversized printout. Let's suppose I manage to do this and several hours or perhaps even days later I pose in front of my blown up photo and then post this to Twitter in a way that makes it obvious that it is connected to the earlier tweet. Have I caused menace? Is this a suitable application of section 127? It could be argued quite reasonably that I must be aware that this is couched in terms likely to cause menace, particularly with my close following of the Chambers case.

This is of course assuming I didn't get arrested before I had a chance to post my photo. I think it would be quite difficult to talk my way out of it in that case, unless I could prove my intentions by showing a piece of registered mail to myself setting it all out. Even still, does my intention here mitigate my action? I must surely have been aware that someone might feel menaced by my tweet. Would I have committed a crime? If so, would that be just? Thoughts please.

An open letter to judge Jacqueline Davies

2010-11-12T06:03:00.000-08:00

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

Response to FoIA request for costs of Paul Chambers prosecution

2010-10-20T01:32:00.000-07:00

At the end of yesterday I received from the CPS Information Management Unit a response to a Freedom of Information Act request that I placed a couple weeks ago. This is well inside the deadline of 20 working days. Here is the text of the response:

Tuesday, 19 October 2010

Our ref: 2484

Dear Mr Flaherty

FREEDOM OF INFORMATION ACT 2000 REQUEST

I refer to your Freedom of Information request which was received on 27 September 2010 regarding the cost of the prosecution against Paul Chambers

Section 1 of the Freedom of Information Act creates a statutory right of access to recorded information held by public authorities i.e. the Crown Prosecution Service (CPS). This right is to be informed whether the information requested is held by the public authority or not, and if the information exists, for it to be communicated. A public authority must reply to such a request promptly and in any event, not later than twenty working days after receipt.

I can confirm the case is still an on-going matter and is due to be listed for the part-heard appeal on 11 November 2010; as yet we are unable to confirm the total costs recorded in this case. May I advise that you contact our office once the case has concluded and your request will be considered afresh.

If you are unhappy with the decisions made in relation to your request from the Crown Prosecution Service you may ask for an internal review. You should contact the Information Management Unit (Freedom of Information Appeals), Rose Court, 2 Southwark Bridge, London, SE1 9HS.

If you are not content with the outcome of the internal review, you have the right to complain directly to the Information Commissioner, who can be contacted at:
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Yours sincerely

S Kadir
Information Management Unit
Tel: 020 3357 0899
Fax: 020 3357 0229
E-mail: FOIUnit@cps.gsi.gov.uk

I will be requesting an internal review today by return. I asked only for the total costs to date in my request and I fully expect that this information should be available. I also believe that the costs are not sensitive information to an ongoing case. The CPS will have 20 working days to conduct a review and respond.

Why Jack Straw is arguably an illiberal ass

2010-10-01T04:49:00.000-07:00

Jack Straw: A pompous and arguably illiberal ass

Jack Straw. Jack, Jack, Jack, Jack Straw. What can I say about Jack Straw? My distaste for the man has deepened lately. This article really cheesed me off when I read it: (politics.co.uk | Jack Straw waves goodbye with civil liberty attack).

The article refers to Straw's final keynote speech to the Labour conference as he prepares to make his exit from front line politics. Jack Straw would like you to believe that the party that dubbed itself New Labour and governed for 13 years until May 2010 has a "great legacy on equal rights and public safety." I could talk about the Ian Tomlinson police brutality / wrongful death case and equal treatment under the law, but I won't go there. I could discuss the hardships facing professional and amateur photographers simply going about their business in public, but that seems rather trite in comparison. I could even delve into the legislation that ushered in the suspension of habeus corpus for terror suspects. Key word is "suspects." That's the 28 day pre-charge detention which ministers like Straw repeatedly pushed to extend to 48 and even 90 days. I won't go there. There are so many things I could talk about, but I'll focus on a couple of key points that are of particular relevance to the man himself. First of all, what did he actually say in his farewell speech that's got me so worked up. From the article:

"Our great legacy on equal rights and public safety is at risk," he said.

"The Liberal Democrats have conspired to put the Human Rights Act under review. The Conservatives, meanwhile, are going to cut the use of DNA technology and CCTV, and restrict the ability of the police and local communities to fight the scourge of anti-social behaviour. And who will benefit from this madness?

"There'll be greater freedom for the criminal, less liberty for the law abiding. It's crazy," he added.

It seems to me that Jack Straw really hasn't got a clue when it comes to civil liberties. In England and Wales, legislation allows DNA samples to be taken from anyone arrested on suspicion of involvement in a recordable offence and stored indefinitely in what is known as the National DNA Database, whether or not they are subsequently convicted or even charged. This amounts to invasion of privacy and excessive data collection. CCTV cameras are arguably useful in preventing and fighting crime, but may amount to excessive surveillance. Ironically, CCTV footage was used to convict a police officer in Manchester of assault causing actual bodily harm in a widely publicised case last month. But I digress.

Jack Straw believes that the coalition government will give greater freedom for the criminal. The trouble is that many of these questionable laws introduced by Labour serve to treat the law abiding citizen as though he were a criminal. A good example of this is Paul Chambers. You all know Paul Chambers by now. He is currently in the middle of an appeal to overturn his conviction relating to a Twitter update where he joked about blowing up an airport. At the moment, Paul is a convicted criminal. Frankly, if this type of "criminal" has greater freedom under the coalition then that's fine by me.

Here is Jack Straw in Sepember 2001 talking about the new Regulation of Investigatory Powers Act (RIPA) when he was Home Secretary. Please read the full article from page 1. It is quite interesting. Part III of RIPA makes it a crime to fail to turn over encryption keys and passphrases or otherwise allow law enforcement to decrypt target data within a specified time limit. The offence carries a sentence of up to two years imprisonment, and up to five years imprisonment in an investigation concerning national security. This legislation has been widely panned by critics as an assault on liberty, as it overrides the basic right to silence that all suspected criminals are afforded. According to Jack and taken from the aforementioned article:

"It was government trying to put in place increased powers so that we could preserve and sustain our democracy against this new kind of threat," he said in a Radio 4 interview.

"We needed to take powers so that we could de-encrypt commercially encrypted e-mails and other communications. Why? Because we knew that terrorists were going to use this."

Well, that's really no excuse for overriding the right to silence. On page 2 of that article, we read about how CTC officers suggest to a supect during an interrogation that failure to comply with RIPA III would "lead to suspicion he was a terrorist or paedophile."

"There could be child pornography, there could be bomb-making recipes," said one detective.

"Unless you tell us we're never gonna know... What is anybody gonna think?"

Whatever anybody's gonna think is irrelevant. This is not Stalin's Soviet Union. There is a presumption of innocence in our justice system. There are many reasons a person may wish to keep data on a hard drive encrypted. Some teenagers broke into my house a few months ago and stole my laptop, among other things. Had I encrypted my files I wouldn't have to worry about personal information falling into the wrong hands. I wouldn't have to worry so much about indentity theft, for example. This is only one of a number of non-sinister reasons to encrypt data. Others include the protection of trade secrets or intellectual property and the hiding of potentially embarrassing but otherwise legal material.

Basically the physical parallel of RIPA III is that if I am suspected of storing information relevant to my criminal investigation in an impenatrable safe, I must hand over the combination or face a jail sentence. What if I've lost the combination? The obvious comeback against RIPA III is to claim to have either lost the encryption keys or forgotten the passphrases. I have personally lost two PGP private keys and thus rendered the encrypted data useless. I doubt I am alone. Would the police believe a suspect who made such a claim? Probably not. Where does that leave you as a suspect in such a case? Answer me that, Mr Straw. Then feel free to bugger off from public life.

Unfortunately I think the true legacy of Jack Straw and his Blairite buddies is best summarised by Tony Blair himself in his memoirs. Of all the business of Blair's government, the one thing that he regrets the most is... what do you think? The illegal invasion of Iraq? Nope. Draconian terror legislation? Try again. The Freedom of Information Act? Bingo.

FOI - How much taxpayer money has the CPS spent in prosecuting Paul Chambers?

2010-09-27T11:26:00.000-07:00

Like many, I'm personally disgusted with the sheer waste of time, money and resources being spent by a public body (the Crown Prosecution Service) on the prosecution of a blameless individual. How much money is it? I'd like to know. Therefore, I have made a request under the Freedom of Information Act to the South Yorkshire office of the CPS for disclosure of all the information related to the costs of the prosecution. I've directed my request for the attention of Roger Tricklebank, a Senior Crown Prosecutor with whom I've had communications in the past, and copied Naheed Hussain, the Chief Crown Prosecutor for that region. I believe that I worded my request clearly and properly, and therefore we should have an answer within 20 working days unless the CPS require more time. Though it's hard to imagine how they would require more time.

Guest Post - Mark Phillips explains how Paul's #TwitterJokeTrial tweet was very clearly a joke.

2010-09-27T06:14:00.000-07:00

I had an email today from a very bright guy I've previously had some dealings with about the Paul Chambers case. Mark Phillips is a linguistics expert who became intrigued by the implications of this case and made numerous comments under articles in The Guardian's online Comment-Is-Free section back in May using the screen name 'justasillyjoke'. It is Mark who deserves the credit for formulating the line of thinking that suggests Paul was frustrated by a situation beyond his control and made an exaggerated remark assuming powers that he does not have in order to compensate for his feelings of lack of control. A very astute observation, I'm sure you'll agree. Mark was trying to post a comment to my previous entry but ran into some problems. With his permission, I am publishing what Mark had wanted to say:

This tweet was a joke. Not only was it a joke, it was very clearly a joke. Is a joke ‘menacing?’ Maybe, taken out of context. The point is, the CPS is trying to convey Paul as being knowingly ‘threatening, menacing’ etc. But, Paul is a joker, and he’s not pretending or even trying to be anything else.

Here is a linguistic breakdown of the joke. It is in ‘cartoon’ style. It builds on an exaggerated bluff, with the basic force of the joke being a stooge, the device being a bluff, and the special force of the joke being an ‘irony’. I’ll explain everything below. Enough to say, the bigger the bluff, the bigger the irony, and the bigger the joke! That is the linguistic recipe.

There are four very visible cartoon elements in the joke:

First, 'Crap!' This is derived historically from the interjection 'Holy Crap!', meaning unbelievable. As an interjection, it has been used extensively as an ‘entry’ into jokes. Think of ‘Wow!’, or ‘D’ya know what…?’, ‘You’ll never believe this…’, or more recently ‘I don’t believe it…’ (One Foot in the Grave). But it is perhaps best remembered in its cartoon form in Robin’s ‘Holy smoke!’ catchphrase from Batman and Robin. This 'unbelievable' meaning sets up the whole joke. After all, it’s not a joke if you believe it! The interjection is therefore the first ‘marker’ that it is a joke.

Second, the jokes main ‘device’ is the weapon bluff, the ‘banana passed off as a gun’. In Paul’s case, it was some imaginary TNT, one might assume. This is hugely important, because it sets up the ‘stooge’ of the joke. The stooge has been somehow duped into believing the banana can pass for a real weapon (maybe they believe they can hypnotise people or some such dupe). Their ‘stupidity’ is therefore the essence of the joke; they cannot see that they appear ridiculous waving around a banana.

Third, the bank robber takes his bluff weapon (the banana) and threatens to 'blow everyone's brains out' unless he 'gets the dough'. The exaggerated toughness (‘get your shit together’) gives the joke extra force, because it sets the stooge up further as a ‘fake’, as a weak character.

Fourth, 'Sky high' is what we might call ‘the hyperbolic flourish’; it serves two functions, it ends the joke with the required flourish, i.e., a punch line, and it reinforces the ‘cartoonish’ nature of the joke, just in case you missed it (pay attention CPS!).

The irony behind the joke is simply that although Paul sets himself up as the stooge, he knows that everyone knows that he knows the ‘banana is not a gun’. He happily sacrifices any appearance of intelligence (tweeting a bomb threat!), in order to set himself up as the stooge for his own joke.

Of course, language doesn’t happen in a vacuum. All communication is ‘primed’, in the way that mention of the word ‘dog’ will invoke ‘cat’. It’s therefore correct to mention that ‘the times in which we live’ create some of the context here: travelling by plan[sic] brings up thoughts of terrorism, as does mention of Northern Ireland. No doubt, if Paul had been writing to a Thai girlfriend, he might have plumbed for a good joke about riding a Tsunami wave, if he was brave. You see, good comedy does require bravery, because it skirts the borders of acceptability and social embarrassment. More than that, it reveals our tensions about things, and by so doing, helps to alleviate them somewhat. Hence, all the jokes about marriage, about our boss, about travelling, about sex, and about terrorists etc.

In fact, if we didn’t live in a world where we are more afraid of terrorists than ever, there probably wouldn’t have been much material there for Paul to joke about.

How the CPS managed to score an 'own goal' in the Paul Chambers appeal

2010-09-25T09:12:00.000-07:00

UPDATE: Please read this followup guest post where the semantics of Paul's tweet are deconstructed by a lingustics expert. Also it is incumbent upon me to reveal that two inaccuracies have been pointed out. @crazycolours has informed me that the related tweets mentioned below were not direct messages but replies in the public timeline. This was something that the prosecution was confused about. No surprise there. This information does not alter my argument. I've also been informed that the prison inmate example offered by Caroline Wiggin was in response to a question from the judge and was not pre-prepared. Original entry below:

Right. If you look at the archives of this blog you will see that I don't write very often. There are large gaps between periods of modest activity. In all honesty, I find it a bit of a chore. Writing is not something that I've ever been accustomed to and life puts up its typical array of barriers. The result is that I tend only to write when something really pushes my buttons. The case of Robin Hood Airport v Paul J Chambers of Balby, Doncaster has never failed to push my buttons.

I won't rehash my history of involvement with this case, as earlier entries set that out fairly comprehensively. You might wish to read my first three entries from the month of May for a start. I'm writing this new post because Paul's appeal was heard and then adjourned yesterday in Doncaster Crown Court and because the prosecution has, in my opinion, not only failed to strenghten its case since May but has offered evidence that actually weakens it to a never before seen level of farce. This is impressive. I would not have believed it possible. The trophy for "Most Ridiculously Argued Prosecution in a Crown Court" goes to Ms Caroline Wiggin of the South Yorkshire Crown Prosecution Service for this astonishing argument (from an article published in The Guardian today):

Caroline Wiggin, for the prosecution, said Chambers had earlier sent direct messages to the woman in Northern Ireland as it appeared possible that the airport might close. In one he wrote: “I was thinking if it does I have decided to resort to terrorism.” She argued that the context provided by such messages strengthened the case that Chambers intended to cause menace. “If a man in prison were to send a message to his wife that he was going to come and beat her up, the court might consider that were menacing, albeit the man himself may have difficulty in putting it into effect,” she said.

The context strengthens the case. What an interesting supposition! It's honestly hard for me to read that and keep a straight face. Is she really that deluded? What context is she imagining here? It might be the context that the CPS conjured out of thin air and District Judge Jonathan Bennett failed to see through when he offered his ridiculous judgement back in May. The context of "the times in which we live" and its association with the perpetual threat of airport terrorism. It is certainly not the context in which Paul's tweet or any of the related direct (private) messages were delivered. Before I talk about the weaknesses of the above argument, let's look at the REAL context, shall we? It deserves its own heading.

The Real Context

A young man in England has booked a flight in January to Northern Ireland to spend time with a young woman that he has previously met once or twice (not on Twitter by the way. They were personally introduced in London by Paul's best mate). The man likes this woman very much and thinks it might actually be love. The feelings are apparently mutual. This is a very good thing. Unfortunately there has been some snow fall that has resulted in the temporary closure of the local airport from which the flight is due to depart. When I think about what scant amount of snow fall can bring an entire British city to its knees, I feel the urge to punch somebody. It therefore does not surprise me that the man could be moved in a fit of pique to write the now legendary Twitter update "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!!"

The context is that here is a man who feels frustrated with the fragility of his plans and has been rendered powerless. He therefore creates a fantasy in which he has powers not actually available to him in order to compensate for this lack of control. The powers are not available to the man because the man is not in any way capable of blowing up an airport. He has neither the means nor the meanness of character required. How does one actually blow an airport "sky high?" To begin with, how high is the sky? 37,000 feet perhaps? What sort of explosives would be required to achieve this incredible feat? Already, the notion of any intention to cause menace is taking on the stale aroma of farce. The continuation of the context is that the frustrated man, who has a particular sense of humour, decides to vent his frustration with the tweet that we are now all familiar with. The tweet is a form of publishing not unlike this web log, or blog. The act of using a service such as Twitter is known as 'microblogging.'

The audience is often quite limited, unless the author is some famous and prolific Twitterer such as Stephen Fry. At the time, Paul (I've grown tired of referring to him as "the man") had a bit less than 700 followers of his timeline. Most if not all of these were people who understood his brand of humour and would have gotten the true meaning of the tweet. It was not a literal expression of any intention whatsoever. I knew that the moment I first read it. Anyone who cannot see this is not viewing the message in its true context. One person in particular who did not grasp the context is Sean Duffield, the Robin Hood Airport duty manager who, for reasons best known to himself, was at home while not on duty and using Twitter's search facility to look for occurrences of the phrase "Robin Hood Airport." It was purely by coincidence that days after it was sent he came across Paul's tweet. One thing led to another and now here we are.

The Bullshit CPS Imaginary Context

The CPS like to talk about the "times in which we live," and judge Jonathan Bennett has lapped this up. But the times in which we live can have no bearing on this or any other case in terms of whether the CPS decide that public interest is served by a prosecution. Are not all recent cases considered by the CPS in the context of the times in which we live? Assuming this context when making decisions is very dangerous. Anything becomes possible. The one hypothetical act of terrorism which might not have been prevented should this tweet be ignored is enough to demand a criminal prosecution. This is, quite frankly, bullshit and so is the unfortunate argument offered by Crown Prosecutor Wiggin. If anything, the established fact that Paul and his girlfriend were having a private conversation prior to his tweet where hypothetical acts of terrorism were discussed strengthens the defence. This shows that the tweet continues a previous train of thought. Indeed, if you read this Jack-of-Kent guest blog post by the lovely @crazycolours you can see mentions of this. Please do read this poignant article. Poor Sarah has related the human aspect of this story better than anyone else can. In it we see that when Paul was failing to return her messages while he was being questioned at a police station, she left him an answerphone message jokingly threatening to "hijack a plane." They had after all been joking about terrorism earlier in the week. She is after all a Nothern Irish woman who grew up in a place where domestic terrorism has long been a sad fact of life. He was after all flying to Northern Ireland to see her. It really is that simple. Thus completes the picture of the real context.

The comparison of Paul's tweet to that of a prison inmate sending a communication threatening to beat his wife would be hilarious if it weren't so ridiculous. On the surface, such a communication to the prisoner's wife would indeed be menacing not only to the wife but also to anyone else, despite that the inmate did not have the power to carry it out. However, it might not be a literal threat. It might on the other hand be some sort of inside joke. The context needs to be examined. Paul's communication to Sarah was not menacing because she knew he was not serious. It's nobody else's business to make that determination because the message was private. The most basic understanding of messaging context still eludes the hapless CPS.

What Now?

Now the defence team have submitted an application for the case to be struck out on the basis that the prosecution has failed to make a case. This submission is being considered and the trial is expected to reconvene some time in November. Other bits of evidence have also come to light which tend to work in favour of the defence. I see no need to involve those in this discussion. In my view the one mistake I've outlined here ought to be enough to dismantle the prosecution. There has been no other new evidence to add strength to the Crown's case. If the CPS truly believe that the new evidence they've presented is helpful to them, then they are simply deluded. I'll go one further and call them incompetent.

5 more reasons why the Paul Chambers decision was wrong

2010-05-16T11:32:00.000-07:00

A few days ago I wrote about 5 reasons why I think the judge got it wrong in the Paul Chambers case, R v Paul Chambers, which was heard and decided on the 10th of May. Then later I published the extent of my communications with the Crown Prosecution Service that began on the 5th of March with a letter of complaint. Since the guilty verdict in this case was announced there has been a public outpouring of support that has included notable figures in the entertainment industry such as Stephen Fry and Graham Linehan. A fund has been setup to receive donations to help with Paul's fine and his appeal. I urge you to give what you can if you care about this. There will be costs despite that there are now some excellent communications lawyers working pro-bono on the appeal. I have been commenting in the Guardian "Comment is Free" section and exchanging ideas with some very bright people who have provided many insightful ideas that could help with the defence. I'll give credit where due.

Not all of the responses to this story have been positive. Some people have indignantly asserted that the defendant got what was coming to him, ought to have known better, got off lightly, etc. If you are one of these people I hope you will take the time to read my post about the 5 reasons and then read this one. This post sets out reasons 6-10 why I think the judge made a mistake. Disclaimer: I am not a lawyer. I can only take the information that is available to me and analyze it with reason and logic.

Section 127.1(a) of the Communications Act 2003 might not even apply because neither Twitter nor the Internet are public systems.
Yes, your heard me. A precedent that has been referenced by the defence and considered by the judge is the case of DPP v Collins which was decided in the House of Lords in 2006. That case saw the same charge applied to a respondent for directing allegedly grossly offensive telephone calls and voice mail messages to the office of his local MP. In the conclusions under paragraph 7 is stated:

The purpose of the legislation which culminates in section 127(1)(a) was to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society. A letter dropped through the letterbox may be grossly offensive, obscene, indecent or menacing, and may well be covered by section 1 of the 1988 [Malicious Communications] Act, but it does not fall within the legislation now under consideration.
Although the telephone network had been privatised before the 2003 law was enacted, it seems that its historical role was still a factor here. When it was run by the British Post Office it was provided and funded by the public and for the benefit of the public. The internet, on the other hand, grew up as a defence project in the United States. ARPANET is what it was called back in the 1960s-70s. In 1985 the US National Science Foundation commissioned the construction of NSFNET to connect university science departments. This spawned worldwide participation in the development of new networking technologies. The network was first opened to commercial interests in 1988. In the 1990s all the TCP/IP networks around the world were interconnected and commercialized to form what we know today as the global Internet. ISPs provide service to their customers for profit. Twitter, an application service running on the internet, is not paid for by public funds. It is a private network that requires membership for participation but not for reading tweets on its timeline. I don't know how they make their money, but I'm pretty sure I'm not paying for it with taxes :)
Section 127.1(a) of the Communications Act 2003 might not even apply because Twitter communication is not (necessarily) in real time.
In his excellent law blog Andrew Sharpe, a partner at Charles Russell LLP, suggests that the original intent of the law has been corrupted through various reenactments. He traces its genealogy back to a 1935 act of Parliament called the Post Office (Amendment) Act, specifically section 10(2). By way of comparision, here is that original statute followed by today's version:

Section 10(2) of the Post Office (Amendment) Act states:
If any person-
(a) sends any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character; or
(b) sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience, or needless anxiety to any other person; or
(c) persistently makes telephone calls without reasonable cause and for any such purposes as aforesaid;
he shall be liable upon summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment.
section 127 of the Communications Act 2003 states:

Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications
network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b)causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
Sharpe argues as follows:

Given that in 1935 there were basically only two public communications systems, one a real-time system (telephone), the other not (telegraph), there is the basis for an argument that the original intent of section 10(2)(a) has been corrupted during the number of re-enactments of this provision. It can be argued, in a Sweet v Parsley most favourable interpretation sense, that the mischief Parliament intended to address in section 10(2)(a) was unlawful messages sent by direct, real-time communications. If non-real-time communications had been intended to be included, then the section would have referred to telephone and telegraph, as it does in section 10(2)(b). Indirect communications were not within the scope of this provision at all. To cite a 1935 analogy to Twitter, would Parliament debating the 1935 Bill have accepted that the posting of a telegram on a public house notice board would be within the scope of clause 10(2)(a). We do not think so.
Nor do I. It seems clear at least to my non-legal mind that the original law respects that immediate communications have much more power to shock and offend because it is so difficult for the recipient to take a step back and gain a different perspective. What is threatening now, in real time is unpredictable and frightening. A telegram or a message left on an answer phone may be threatening and offensive but can be received with much more objectivity. It can also be shared with others and mitigated in many other ways. It can also be completely disregarded.

When I was about ten years old I received a crank phone call at home. I answered the phone to a male voice who eventually began to make sexually explicit remarks. After about a minute I hung up the phone. Everything about that phone call remains crystal clear in my memory even though I never mentioned it to anyone before I told my wife about it yesterday. I cannot even repeat it in print after nearly three decades, that's how strong was the shame I felt. It was an immediate violation which I could not view as an outside observer. If I had been living in Britain, this is precisely the type of mischief that this law was intending to criminalize. An answer phone message would not have had the same immediacy even if it had been aimed specifically at me. The phone call was not aimed at me as the caller was unfamiliar with me and may not have even realized that he was speaking to a child. But it WAS me who was engaged with the caller; therefore, it was highly personal and a direct violation.
The judge was convinced beyond a shadow of a doubt that the tweet was menacing in its context, but he looked at the wrong context.
In his summation, District Judge Bennett writes:

The context is we live in a society where there are huge security concerns particularly in relation to airports and air travel. I do not need to repeat the very real incidents there have been in the UK in recent years let alone worldwide. With that background I can have no doubt that the remark posted by the defendant is menacing.
The judge is wrong. The context is that the message was delivered in a conversational style to a known group of people who follow the timeline. The defendant was not imagining that his tweet would be called up in a search and viewed by a person who does not follow his tweets. The context is that the defendant was frustrated by a situation beyond his control and made an exaggerated remark assuming powers that he does not have in order to compensate for his feelings of lack of control. We have all done similar things. The judge ought to have looked at the context in which the message was delivered and the psychology around it rather than simply "the times in which we live". This line of thinking is mostly to the credit of Mark Phillips, a linguistics expert with whom I've been speaking.
The judge was convinced that Chambers was at the very least aware that his tweet was menacing, but he didn't bother to ask another Twitter user.
This may be a failure of the defence, as not a single witness was called apart from the defendant himself. In discussing intent, the judge says:

The defendant has maintained in lengthy interviews and also in giving evidence before me today that he had no such intention. He points out the slim likelihood that anyone just on the “Twitter” site would ever see his posting.

However, I do not have to accept what the defendant tells me about his state of mind at face value. I also note the defendant is an experienced, and clearly very heavy user, of “Twitter”. Furthermore he has travelled by air, although he had not used Robin Hood airport previously. I found strange his evidence in relation to airport threats not seeming to relate to him and appearing to be in another world.
I wish I had been called to testify. I could have explained to the judge the state of mind in which a tweet such as this one is made. I am an experienced Twitter user and internet applications developer specializing in communication and collaboration software. I know that although these messages are public, there is an expectation of a certain degree of privacy albeit a naive one. We do not expect our semi-private conversations to be monitored by airport security officials or police who are looking for "evidence" of dangerous criminal activity. I also know that Twitter's novel form gives rise to quick and sometimes thoughtless remarks. I am a reasonable person and I would hope that the judge would be forced to conclude that a reasonable person would not find such a message menacing in its proper context.
A successful conviction encourages the security industry to mine our public communications this way, which is a waste of time and effort.
Yes, police time was wasted. I suppose airport security time was also wasted. But whose fault is this? Not Paul's. These people need to manage their time appropriately. How often has this type of scrutiny of electronic communications actually prevented an act of violence or terrorism? I don't know the answer, but I know that it did not in this case. I suspect that it does not in the vast majority of cases, yet they will carry on doing it. The justification is in the one hypothetical act of terrorism that perhaps would not be prevented if this information were ignored. But there are other ways of preventing crime and goodness knows we've allocated plenty of resources. Ultimately this is a disgraceful waste of public funds to investigate and prosecute a person who is basically not a real threat in any sense. I wish these people would stop.

Paul Chambers, the CPS and me

2010-05-14T00:23:00.000-07:00

Back in March I wrote a letter of complaint to the South Yorkshire Crown Prosecution Service about its handling of the case of Paul Chambers, who has now been recently convicted of a crime involving a Twitter update. My complaint followed a careful reading of the blog of Jack-of-Kent. When I first heard about the case in January I knew there was something wrong, but it was not until reading J-o-K's great Bad Law column in thelawyer.com that I realized just how bad it was. Yesterday I wrote about 5 reasons why I think the judge's decision was wrong. Now I would like to set out with appropriate redactions my correspondence with the CPS.

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Page 1

5th March 2010
To:
Crown Prosecution Service
Greenfield House
32 Scotland Street
Sheffield
S3 7DQ
info.southyorkshire@cps.gsi.gov.uk

Re: Crown case against Paul J Chambers of Doncaster

Cc:
Paul J Chambers, defendant
Rosie Winterton, MP
British Broadcasting Corporation (BBC)
Associated Newspapers Ltd.
National Council for Civil Liberties
Tessa Mayes
Ofcom

Executive Summary
This letter constitutes an official complaint to the South Yorkshire branch of the Crown Prosecution Service for its handling of the case against Paul J Chambers of Balby, Doncaster. Mr Chambers was arrested after posting an update to the social networking site Twitter that was interpreted as a bomb hoax. The defendant, Paul Chambers, was arrested by South Yorkshire police under section 51(2) of the Criminal Law Act 1977 for posting an update to his Twitter feed with a comment that was construed as a threat to plant a bomb at an airport. He was then later charged by the Crown Prosecution Service “in the public interest” with an offence under section 127(1) of the Communications Act 2003, which unlike the earlier act does not require the Crown to discharge a burden of proof as to the suspect’s intent. Although the defendant was not at the time of his arrest personally known to me and is now only known to me through internet communications, I am nonetheless outraged by the actions of the authorities in this case. I intend to show that the Crown’s interpretation of this law is inappropriate and threatens to chill protected free speech of all kinds. Letter of complaint begins overleaf.

Page 2
From: Matthew Joseph Flaherty
(address withheld)

To: Naheed Hussain, Chief Crown Prosecutor for South Yorkshire
Re: Crown case against Paul J Chambers of Doncaster

Dear Ms Hussain, et al:

This communication comes to you by way of electronic mail and post. In January of this year, one Paul J Chambers of Balby, Doncaster was arrested by South Yorkshire police under section 51(2) of the Criminal Law Act 1977 for posting an update to his Twitter feed with the following content after snow storms forced the closure of an airport: "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!!" I am informed that this incident has resulted in the suspect being suspended from his employment pending an investigation and banned for life from Doncaster's Robin Hood airport. The ban was subsequently lifted; however, I am unaware of any conclusion to the employment disciplinary action. A police statement was later issued:

“There was huge public and media interest in this case. Whilst the investigation and collation of evidence was straightforward, due to the wide-spread interest in the use of Twitter in this way, the case was referred to CPS to make the decision on disposal. Based on this “public interest test” it was not appropriate for police to make this decision. The CPS themselves could have decided on a caution, but based on the evidence and the public interest they decided to charge in this case, a decision that the police feel is appropriate.”

I am further informed that the Crown Prosecution Service has elected to charge and prosecute Mr. Chambers under section 127(1) of the Communications Act 2003, which states:

Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends by means of a public electronic communications
network a message or other matter that is grossly offensive
or of an indecent, obscene or menacing character; or
(b)causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of
causing annoyance, inconvenience or needless anxiety to
another, he—
(a) sends by means of a public electronic communications
network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic
communications network.
Page 3
(3) A person guilty of an offence under this section shall be
liable, on summary conviction, to imprisonment for a term not
exceeding six months or to a fine not exceeding level 5 on
the standard scale, or to both.

I am led to believe that this provision is based on an earlier provision in the 1984 Telecommunications Act which was intended to deal with nuisance telephone callers. The application of the 2003 act over the 1977 act is significant because unlike the 1977 act, which would require the Crown to discharge a high burden of evidential proof that the defendant intended to instil in a recipient the false belief that he intended to plant a bomb, the 2003 act has no similar burden for proving intent. In a statement to Allen Green of thelawyer.com, The Crown have remarked "Section 127 of the Communications Act 2003 was considered to be the correct charge in the particular circumstances of the case. Under 127(1) an offence is committed where suspect sends by means of a public electronic telecommunications system a message or other matter that is “grossly offensive, or of an indecent obscene or menacing character”. A message can be any of these (rather than having to be all of them) and the message in this case was clearly of a menacing character. A more serious charge under section 51 Criminal Law Act 1977 was considered but was not felt to be appropriate as there was no evidence that he intended to induce in the recipient a false belief there really was a bomb."
These are the facts of the case as I understand them. Please either affirm or dispute in your reply.

I find it wholly inappropriate and highly objectionable that the Crown have applied such a wide interpretation to a statute that was designed to deal with one-to-one communications. When this legislation was drafted it was perhaps felt that the burden of intent was unnecessary, as in one-to-one communications the intention of the caller or sender can be inferred. The intention of a message sender in a broadcast style communication is much less clear and is therefore highly dependent on the context. The application of the Communications Act in this case has significant and wide ranging implications for the use of electronic communications that are likely to have a chilling effect on protected free speech.

In fact the implications are terrifying. It is remarkable how easily one can fall afoul of this interpretation of the law, with no evidential safety net to protect oneself. Please correct me if I'm in error. I do believe that your interpretation would have held that the BBC committed an offence in 2005 when it broadcast over a public communications network a performance of Jerry Springer the Opera. Indeed a significant proportion of the British population found this broadcast to be indecent and obscene if not grossly offensive. Likewise, the Press Complaints Commission received a record number of complaints after Jan Moir published in the Daily Mail a highly inflammatory article concerning the death of Stephen Gately. The article was in particularly poor taste and offensive to the family and friends of the deceased as it was published prior to his burial. This was simultaneously published in the online edition. It is clear from the context that Mr Chambers' remarks on Twitter were not intended to be taken literally but were simply a literary figure of speech known as hyperbole, intended to show his exasperation at the likelihood of his flight being cancelled.

Page 4
I fear I may have stepped over the line myself when in August of last year I became exasperated by the US Health Care arguments and tweeted "If I hear one more politician claim that the US govt health plan will "unplug grandma" I'm gonna get on a plane and go unplug theirs myself.". Was this a menacing message? I doubt any reasonable person would interpret this remark as a threat that I intended to carry out. For the record, it was not. If on the other hand I had sent a similar private message or a reply in the second person to Senator Chuck Grassley of the Senate Committee on Finance, then I think you would agree that this could have been rightly interpreted as a threat. This is the substantive difference between the two forms of communication. One is impersonal while the other is personal. One is nondirected while the other has a clearly intended recipient. The Crown's failure to grasp this fundamental difference reveals a woeful ignorance of the medium. The fact that Chambers used the second person should not confuse the reader into believing that the communication was directed. This is a colloquialism. Chambers makes the pretense of speaking to Robin Hood airport staff; however, he does not intend for this message to ever reach such a recipient or for it to be taken literally. We now find ourselves in the position of having to rely on expert testimony from English professors, a clear indication that something is amiss. After the Chambers case was publicised I decided to remove a different update I'd recently posted for fear that its intent might be misconstrued. Thus my free expression was effectively chilled.

If as you claim a message or other matter may be either grossly offensive or of an indecent obscene or menacing character without having to be all of them, and that it is not necessary for the suspect to have intended such, then we all have reason to be afraid. You claim that it is in the public interest to prosecute this case due to the widespread interest in the use of social networking in this way. I am of the exact opposite opinion. It is in the public interest that the Crown drop these charges immediately and reconsider the wisdom of applying the Communications Act in this way. Nobody has the right to not be offended. Wilful harassment and intimidation are special cases, but barring that a person has as much right to cause offence as take offence. If that were not so then there are very many well known comics and artists who would likely be facing criminal prosecution. Nor can a nondirected comment made for exaggerated effect reasonably be regarded as menacing. Certainly the intention of the sender cannot be disregarded in any case. The police and the Crown must use discretion when deciding to charge for such an "offence" in order to avoid what can only be deemed a miscarriage of justice. I am informed that Mr Chambers attended a hearing at the Doncaster Magistrates Court in February where he pleaded guilty and is now awaiting sentencing. District judge Jonathan Bennett heard the case. An otherwise law abiding citizen now finds himself carrying a criminal conviction. The defendant is not known to me. Presumably the guilty plea served to facilitate the return of some semblance of normality to his life. I find this terribly unfair. Thank you for your time and attention to this matter.

Yours Sincerely,
Matthew Flaherty

------------------------------------------------------------------

17 March 2010

Dear Mr Flaherty

RE: PAUL CHAMBERS - DONCASTER MAGISTRATES' COURT

I refer to your letter of 5 March 2010 regarding the above matter.

The police are responsible for conducting enquiries into an allegation that a crime may have been committed. In relation to less serious offences the police may charge a person. If the case is more serious or complex, advice on charging is sought from the Crown Prosecution Service. Once the file is passed to the Crown Prosecution Service prosecutors decide whether a person should be charged with a criminal offence and, if so, what the offence should be.

In making any decision the prosecutor must ensure that the full code test, set out in the Code for Crown Prosecutors, has been met. The test has two stages: (i) the evidential stage; followed by (ii) the public interest stage. A copy of the Code for Crown Prosecutors is available on the Crown Prosecution Service website www.cps.gov.uk.

For the evidential test to be met the prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. This means that an objective and impartial jury or Magistrate, properly directed in accordance with the law, hearing the case would be more likely than not to convict the defendant of the charge alleged.

Page 2
On applying the evidential test in this case it was decided that the evidence was sufficient to provide a conviction for an offence under section 127 (1) of the Communications Act 2003, as evidenced by Mr Chambers' guilty plea.

It is clear from the statute that section 1(a) was not designed to deal with "one-to-one" communications, as you suggest, otherwise it would have included the words "to another" which are found in section 2.

The starting point under the public interest test is always that it is in the public interest to prosecute unless there are significant circumstances not to do so. In this case, given the times in which we live and the concern caused to the airport security staff it was decided that no such circumstances existed.

In respect to the BBC and Jerry Springer matters I am unable to make any comment as this Area received no request from the police to consider whether charges should be brought.

I hope this letter has helped to clarify for you why the decision to prosecute was made.

Yours faithfully

Roger Tricklebank
Senior District Crown Prosecutor
CPS South Yorkshire

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22 March 2010

Matthew Flaherty 
(address withheld)

To: Roger Tricklebank, et al. 
Crown Prosecution Service
Greenfield House
32 Scotland Street
Sheffield
S3 7DQ
info.southyorkshire@cps.gsi.gov.uk

Re: PAUL CHAMBERS – DONCASTER MAGISTRATES’ COURT  

Dear Mr Tricklebank, et al: 

Thank you for your response to my letter of complaint on the 5th of March regarding the above matter. I refer to your letter dated 17th March. You have explained why, based on the evidential and public interest tests, the CPS have decided to prosecute the defendant Paul Chambers on a charge under 127 1(a) of the Communications Act 2003. In my initial letter of the 5th March, I had asked for the CPS to affirm or dispute the facts of the case as laid out therein. This has not been done to my satisfaction. I ask that you now kindly affirm to me in writing that the facts are not in dispute as presented in the body of my letter prior to the words “These are the facts of the case as I understand them”. If there are any errors or important omissions, please describe them. I acknowledge that there is a difference of opinion as to the applicability of the statute to this case and I would like to set that matter aside for now. In order to understand how to proceed with the complaint I will want to know whether the
following assumptions are true:

1. The CPS has found no evidence to suggest that the defendant intended either to plant a bomb at an airport or to cause another person to believe that such was his intention.

2. The CPS accepts the defendant’s assertion that he neither intended to plant a bomb nor induce a false belief that there was a bomb.

3. The CPS is of the opinion that the defendant’s intentions are not relevant to the charge.

I therefore ask that you please either affirm or deny the truthfulness of each of these assumptions. As my initial query was not answered to my satisfaction, I expect an expedited response.

I would like to take a moment to comment on some of the points you make in your letter. As validation of the evidential test you offer the defendant’s initial guilty plea. I note that on the 18th of March the judge accepted the defendant’s application to vacate the plea in order for the court to be able to reconsider the defendant’s intention to menace. In light of these changes, is the Crown still satisfied that the evidential test is passed?

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22 March 2010

You have argued that the public interest test is passed because no significant circumstances have been found not to prosecute. This position seems to ignore the defendant’s own rights guaranteed by articles 9 and 10 of the Human Rights Act 1998, which protect freedoms of thought and expression, and the wider negative impact that a successful prosecution is likely to have on protected free speech through electronic media. I have already demonstrated how easily one might unwittingly commit an offence by your application of the statute. Supporting your claim you state “In this case, given the times in which we live and the concern caused to airport security staff it was decided that no such circumstances existed.” This is the only information you have provided to support the public interest test. This statement has two weaknesses apparent to me. First, the reasons to prosecute, no matter how compelling, do not preclude the existence of a significant reason not to. Second, the reasons given appear specious: a) the prosecutor Rob Desira, as reported by the BBC, told the court in the initial hearing that the defendant’s message had no impact on the airport other than the expense and time taken for the investigation to be carried out (footnote 1); b) the times in which we live cannot have any bearing on this case as all recent cases considered by the Crown Prosecution Service have occurred within the times in which we live. Could you please clarify this statement?

Once again, should you wish to phone me during the day you may dial my office telephone number, which is (withheld). Please feel free to leave a voice message if I am not at my desk. I look forward to your response. Thank you.

Best regards, 
Matthew Flaherty

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22nd  March 2010

Dear Mr  Flaherty

Thank you  for your recent letter which we received in our office on 22nd March 2010.

I am  currently looking into this matter and will reply to you as soon as possible. All future  correspondence will be sent by means of the post, and not electronically. 

Yours sincerely

Roger Tricklebank

Senior  Crown Prosecutor

CPS South Yorkshire

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6th April, 2010 

Hello,

This is a message for Mr Roger Tricklebank.  I have been awaiting a reply to the correspondence referenced below  regarding the case against Paul Chambers, which was sent on the 22nd of  March. To date I have received no such reply. Can you please tell me  whether a reply has in fact been sent or when I can expect one? Thank  you.

Regards, 
Matt Flaherty

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6th April 2010

Dear Mr Flaherty

Thank you for your email. 

A response was sent out to your  home address on Thursday 1st April 2010. 

Please see the attached  document. This is a copy of the letter that was sent to your home address.

Yours sincerely

Roger Tricklebank

Senior  Crown Prosecutor

CPS South Yorkshire

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01st April 2010.
 

Dear Mr. Flaherty,  

Re Paul Chambers  – Doncaster Magistrates Court 

I refer to your recent letter which is  undated. 

The case has now been set down for legal  argument to take place before the District Judge. I regret, therefore,  that as you are not a party to the case I am not at liberty to discuss  details of the case with you.
 

Yours faithfully,

Roger Tricklebank

Senior District Crown Prosecutor

CPS South Yorkshire.

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6th April 2010
Dear Mr Tricklebank,

This is a disappointing but not wholly unexpected answer. The answer is all the more disappointing as it was known at the time of your previous email acknowledgment that a trial date had been set. I had hoped to be able to persuade your office of how very poorly conceived this prosecution is and to convince you to drop all charges. As this is no longer possible I regret to inform your office of my decision to escalate this complaint to the central CPS office. I am saddened by the South Yorkshire CPS office's recalcitrance as I believe very strongly having read the judge's views on allowing the vacated plea that the prosecution will be ultimately unsuccessful and potentially embarrassing to a public organization that does much good work. No further response is expected from you; however, I'd ask you and your colleagues to take the time to ponder what good could possibly come of this.

Regards, Matt Flaherty

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In fact I never did write to the Director of Public Prosecutions. After speaking with Jack-of-Kent, we decided to leave it in the hands of the judge. I sort of wish now that I had.

[Correction from first publication: Paul Chambers was in fact banned for life from Robin Hood Airport, but that was rescinded the following week.]

5 Reasons why the Paul Chambers decision was wrong

2010-05-12T22:46:00.000-07:00

UPDATE: Please also read my followup post: 5 more reasons why the Paul Chambers decision was wrong.

Paul Chambers, the Twitter "bomb hoax" guy, was found guilty on Monday of sending a menacing message on Twitter and fined approximately £1000. This was his first criminal offence. I wrote about this in an earlier entry as I was preparing a letter of complaint to the South Yorkshire CPS. My complaint failed to deter the CPS from pursuing their charge under section 127(1) of the Communications Act 2003. It did however contribute to the defendant's decision to seek to have his initial guilty plea vacated. This was successful, to the surprise and renewed hope of many. Our hopes were dashed when district court judge Jonathan Bennett delivered his guilty verdict, which legal blogger Jack-of-Kent has described as a disgraceful and illiberal judgement. Here are five reasons, in no particular order, why I believe this decision is very wrong and very alarming.

This was clearly an expression of frustration and not intended to be taken seriously.
A guy writes "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!!" to express his frustration that his flight might be cancelled due to about a half inch of snow. Well, that's the United Kingdom for you. You'd think nobody had ever seen the stuff. I know how he feels. Where I come from we would routinely drive our cars the day after a 3 foot blizzard. Getting back to the point, I haven't come across a single person apart from the judge who believes that Paul had malice in mind when he made this remark, no matter how ill-inconceived it may have been. I'll get to the judge in a minute.
The times we live in have no bearing on this or any other case.
The existence of terrorism and its association with airports cannot alone serve as the foundation for perceiving a suggestive remark as a threat beyond a reasonable doubt. Anyone who thinks this is okay has willingly handed over his liberty for the sake of false security. Here is a typical response to Paul from a person called "HorseBooger" who clearly doesn't see what's at stake:

Paul,
I have no sympathy for you. You're an idiot and deserve what happen [sic] to you. You should have known better with today's climate.
Now here you are whining about it. They should have horse whipped you and then put your dumb ass in jail.
As for it ruining your career, I wouldn't worry about it. Sounds like you're to [sic] stupid to have had a career away [sic?].
What I find even more surprising is there are other morons out there that support you.
Well HorseBooger, if that is indeed your real name, I pity you. You have no idea what was taken away from you on Monday. People like this seem to universally hold the view that "this could never happen to me because I'm not a criminal". This is precisely what Paul would have said back in December if you'd asked him. Let me relate an extract from the book 'What Hitler Did To Us' written in 1938 by Eva Lips, a German woman whose husband was denounced to the gestapo by an informer. This excerpt was kindly provided by a commenter on the Guardian.

I had become so intimidated that I no longer knew what was right and what was wrong... I was nervous with the postman, the milkman, the newsboy. He might be a spy who wrote down my words. In the trains there was a curious silence; no one ventured to talk to a stranger, still less an employee. laughing in the bus at the wrong moment might be dangerous. Photography enthusiasts did well to put their cameras aside; any landscape or group of people which one photographed might be used to prove one's intention of spying.. Everyone distrusted everyone else. No one ventured to express an opinion on anything.
The judge got his facts wrong.
In his summation, judge Bennett explains that the prosecution must show that there was mens rea, a legal term meaning guilty mind. The act in and of itself is not sufficient to constitute an offence. Incredibly, the judge says that he is satisfied that the defendant was aware that his comment was menacing. He explains that he has heard testimony that the defendant is a man of good character and that the defendant denies any awareness that his comment would be taken seriously. He then goes on to say the following (emphasis is mine):

However, I do not have to accept what the defendant tells me about his state of mind at face value. I also note the defendant is an experienced, and clearly very heavy user, of "Twitter". Furthermore he has travelled by air, although he had not used Robin Hood airport previously. I found strange his evidence in relation to airport threats not seeming to relate to him and appearing to be in another world. Of particular significance is the fact that this "tweet" was posted to the public timeline, unlike most of his "tweets" in the time frame around this particular posting. This message would have been of particular significance to the lady known as "crazy colours" in Northern Ireland to whom the defendant was going to see on his air journey. He chose to post it in the public domain where in theory it was open for anyone to see, as indeed did Mr Duffield.
I am therefore satisfied, so that I am sure, that the defendant sent the message via "Twitter" and it was of a menacing nature in the context of the times in which we live. Furthermore I am satisfied the defendant was, at the very least, aware that this was of a menacing nature and I find him guilty of the offence.
Here the judge clearly fails to understand the mechanisms at play in the Twitter messaging scenario. One's Twitter timeline is either entirely public or entirely protected. Prior to Paul's arrest his tweets were public. Following the arrest they were locked. True, he could have sent a direct message, but you can only send that to a single person and he wanted his friends and other followers to see it too. Bennett makes a factual error here that I believe will result in a successful appeal.
Twitter, by its unique form, encourages off-the-cuff remarks without much thought.
I understand that people who have never used Twitter might not realize how very dynamic it is. It is not like Facebook. Nobody who uses Twitter thinks that this was a good judgement. Twitter has become a way of sharing your semi-private thoughts with a small audience and with the hidden potential of reaching an ever wider audience. But they are just thoughts. It becomes a habit. This is because the available text is so short. More than any other medium, Twitter has really changed the way that people communicate. And it feels like you're in the same room with your friends. Conversations involving various levels of celebrity seem as though they are happening on the other side of the room. It lulls you into sharing more of yourself than you might otherwise. I think this is wonderful. However, it is all too easy to fall into the trap that Paul Chambers did. Here are a couple of examples:
- Me (August 2009): "If I hear one more politician claim that the US govt health plan will "unplug grandma" I'm gonna get on a plane and go unplug theirs myself" - possibly menacing.
- Armando Ianucci (before flying to the Oscars): "At the airport.Got my Oscar tickets in my pocket, my girl by my side,and 3 packets of heroin hidden up my anus.What could possibly go wrong?" - probably would have been taken into a back room and strip searched had the Heathrow authorities been alerted.
There are many others.
The police don't get to have a new tool for detecting and preventing crime just because we have a new tool for expressing ourselves.
I concede that these conversations and monologues are not truly private, but I still feel that they should be treated as such for the purposes of establishing possible criminal behaviour. It's like with a search warrant. The warrant needs to specify what can be searched and what the police are looking for. The implication is that there is already cause to believe a crime has been or is being committed. It's hard for some people to accept, but this is a bit like searching without the proper warrant. You might find something of interest by accident, but unless it's been obtained properly it should have no value as evidence. Granted it might necessitate an investigation, but the police really must use common sense. Bear in mind, we are not any less safe now that there is Twitter. There could be millions of telescopic microphones dangling from the sky and picking up unguarded conversation. Imagine if it were as easy to process voice as it is to process text. I'll bet law enforcement would love that. Would you think it was right to use such speech against a person? Just because we have a medium that allows unguarded speech to be shared with a known group of people and to be spied by an unknown group, should we be content to monitor that for possible illegal activity? And that's really what it is, isn't it? Spying. Eavesdropping. It hasn't made us any less safe by its mere existence, so why should it be scrutinized in this way.

Paul has decided that he will appeal this decision. I am glad. The verdict is bad for all of us who publish and broadcast ourselves online. Those who don't understand free speech may one day find themselves on the receiving end of this abuse of law enforcement power. Then perhaps it will begin to dawn on them. If the appeal is successful, and I'm confident it will be, then they may be allowed instead to carry on in blissful (and in some cases spiteful) ignorance.

Links

If you would like to donate to Paul's legal expenses, you can find out how here: http://twitter.com/twjoketrialfund and here: http://cripesonfriday.tumblr.com/post/587845442/twitter-joke-trial-fund. Any leftover proceeds will be donated to civil liberties charities.
There is also a Facebook group in support of Paul: http://www.facebook.com/group.php?gid=362215453264

CPS v Paul J Chambers

2010-03-04T10:03:00.000-08:00

This post is of a rather serious nature. It concerns the case of a man who was arrested after posting an update to Twitter that was interpreted as a bomb hoax. See the story. Here is a legal dissection of the case. I believe that the actions of the police and the Crown Prosecution Service are outrageous and threaten to chill protected free speech. I intend to lodge a complaint with the CPS. Here is what I believe to be my final draft.

UPDATE: A slightly modified version of the text below has been sent to the CPS and other interested parties. If you wish to complain as I did, you can write to:

Crown Prosecution Service
Greenfield House
32 Scotland Street
Sheffield
S3 7DQ

or email info.southyorkshire@cps.gsi.gov.uk. The chief crown prosecutor is Naheed Hussain.

ANOTHER UPDATE: There is now a Facebook group dedicated to this case:
ANOTHER ANOTHER UPDATE: Text of letter below now matches that sent, including Executive Summary.

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Executive Summary
This letter constitutes an official complaint to the South Yorkshire branch of the Crown Prosecution Service for its handling of the case against Paul J Chambers of Balby, Doncaster. Mr Chambers was arrested after posting an update to the social networking site Twitter that was interpreted as a bomb hoax. The defendant, Paul Chambers, was arrested by South Yorkshire police under section 51(2) of the Criminal Law Act 1977 for posting an update to his Twitter feed with a comment that was construed as a threat to plant a bomb at an airport. He was then later charged by the Crown Prosecution Service “in the public interest” with an offence under section 127(1) of the Communications Act 2003, which unlike the earlier act does not require the Crown to discharge a burden of proof as to the suspect’s intent. Although the defendant was not at the time of his arrest personally known to me and is now only known to me through internet communications, I am nonetheless outraged by the actions of the authorities in this case. I intend to show that the Crown’s interpretation of this law is inappropriate and threatens to chill protected free speech of all kinds. Letter of complaint begins overleaf.

To Whom it May Concern:

This communication comes to you by way of electronic mail and post. In January of this year, one Paul J Chambers of Balby, Doncaster was arrested by South Yorkshire police under section 51(2) of the Criminal Law Act 1977 for posting an update to his Twitter feed with the following content after snow storms forced the closure of an airport: "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!!". I am informed that this incident has resulted in the suspect being suspended from his employment pending an investigation and banned for life from Doncaster's Robin Hood airport. The ban was subsequently lifted; however, I am unaware of any conclusion to the employment disciplinary action. A police statement was later issued:

“There was huge public and media interest in this case. Whilst the investigation and collation of evidence was straightforward, due to the wide-spread interest in the use of Twitter in this way, the case was referred to CPS to make the decision on disposal. Based on this “public interest test” it was not appropriate for police to make this decision. The CPS themselves could have decided on a caution, but based on the evidence and the public interest they decided to charge in this case, a decision that the police feel is appropriate.”

I am further informed that the Crown Procescution Service has elected to charge and prosecute Mr. Chambers under section 127(1) of the Communications Act 2003, which states:

"Improper use of public electronic communications network
(1)            A person is guilty of an offence if he—

(a)           sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b)           causes any such message or matter to be so sent.

(2)           A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

(a)           sends by means of a public electronic communications network, a message that he knows to be false,
(b)           causes such a message to be sent; or
(c)           persistently makes use of a public electronic communications network.

(3)           A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both."

I am led to believe that this provision is based on an earlier provision in the 1984 Telecommunications Act which was intended to deal with nuisance telephone callers. The application of the 2003 act over the 1977 act is significant because unlike the 1977 act, which would require the Crown to discharge a high burden of evidential proof that the defendant intended to instill in a recipient the false belief that he intended to plant a bomb, the 2003 act has no similar burden for proving intent. In a statement to Allen Green of thelawyer.com, The Crown have remarked "Section 127 of the Communications Act 2003 was considered to be the correct charge in the particular circumstances of the case. Under 127(1) an offence is committed where suspect sends by means of a public electronic telecommunications system a message or other matter that is “grossly offensive, or of an indecent obscene or menacing character”. A message can be any of these (rather than having to be all of them) and the message in this case was clearly of a menacing character. A more serious charge under section 51 Criminal Law Act 1977 was considered but was not felt to be appropriate as there was no evidence that he intended to induce in the recipient a false belief there really was a bomb."
These are the facts of the case as I understand them. Please either affirm or dispute in your reply.

I find it wholly inappropriate and highly objectionable that the Crown have applied such a wide interpretation to a statute that was designed to deal with one-to-one communications. When this legislation was drafted it was perhaps felt that the burden of intent was unnecessary, as in one-to-one communications the intention of the caller or sender can be inferred. The intention of a message sender in a broadcast style communication is much less clear and is therefore highly dependent on the context. The application of the Communications Act in this case has significant and wide ranging implications for the use of electronic communications that are likely to have a chilling effect on protected free speech.

In fact the implications are terrifying. It is remarkable how easily one can fall afoul of this interpretation of the law, with no evidential safety net to protect oneself. Please correct me if I'm in error. I do believe that your interpretation would have held that the BBC committed an offence in 2005 when it broadcast over a public communications network a performance of Jerry Springer the Opera. Indeed a significant proportion of the British population found this broadcast to be indecent and obscene if not grossly offensive. Likewise, the Press Complaints Commission received a record number of complaints after Jan Moir published in the Daily Mail a highly inflammatory article concerning the death of Stephen Gately. The article was in particularly poor taste and offensive to the family and friends of the deceased as it was published prior to his burial. This was simultaneously published in the online edition. It is clear from the context that Mr Chambers' remarks on Twitter were not intended to be taken literally but were simply a literary figure of speech known as hyperbole, intended to show his exasperation at the likelihood of his flight being canceled.

I fear I may have stepped over the line myself when in August of last year I became exasperated by the US Health Care arguments and tweeted "If I hear one more politician claim that the US govt health plan will "unplug grandma" I'm gonna get on a plane and go unplug theirs myself.". Was this a menacing message? I doubt any reasonable person would interpret this remark as a threat that I intended to carry out. For the record, it was not. If on the other hand I had sent a similar private message or a reply in the second person to Senator Chuck Grassley of the Senate Committee on Finance, then I think you would agree that this could have been rightly interpreted as a threat. This is the substantive difference between the two forms of communication. One is impersonal while the other is personal. One is nondirected while the other has a clearly intended recipient. The Crown's failure to grasp this fundamental difference reveals a woeful ignorance of the medium. The fact that Chambers used the second person should not confuse the reader into believing that the communication was directed. This is a colloquialism. Chambers makes the pretense of speaking to Robin Hood airport staff; however, he does not intend for this message to ever reach such a recipient or for it to be taken literally. We now find ourselves in the position of having to rely on expert testimony from English professors, a clear indication that something is amiss. After the Chambers case was publicised I decided to remove a different update I'd recently posted for fear that its intent might be misconstrued. Thus my free expression was effectively chilled.

If as you claim a message or other matter may be either grossly offensive or of an indecent obscene or menacing character without having to be all of them, and that it is not necessary for the suspect to have intended such, then we all have reason to be afraid. You claim that it is in the public interest to prosecute this case due to the widespread interest in the use of social networking in this way. I am of the exact opposite opinion. It is in the public interest that the Crown drop these charges immediately and reconsider the wisdom of applying the Communications Act in this way. Nobody has the right to not be offended. Willful harassment and intimidation are special cases, but barring that a person has as much right to cause offence as take offence. If that were not so then there are very many well known comics and artists who would likely be facing criminal prosecution. Nor can a nondirected comment made for exaggerated effect reasonably be regarded as menacing. Certainly the intention of the sender cannot be disregarded in any case. The police and the Crown must use discretion when deciding to charge for such an "offence" in order to avoid what can only be deemed a miscarriage of justice. I am informed that Mr Chambers attended a hearing at the Doncaster Magistrates Court in February where he pleaded guilty and is now awaiting sentencing. An otherwise law abiding citizen now finds himself carrying a criminal conviction. The defendant is not known to me. Presumably the guilty plea served to facilitate the return of some semblance of normality to his life. I find this terribly unfair.

Your sincerely,
Matthew Flaherty

Edit: made some content changes from inital draft.

Justice Denied

#TwitterJokeTrial - It's all about proportionality (unfortunately)

The #TwitterJokeTrial: Why it matters to me - why it should matter to you.

Normal service to resume some time or other...

#TwitterJokeTrial and the cluelessness of judge Jacqueline Davies

Who Needs Human Rights? Part III - The Politicians

Who Needs Human Rights? Part II - The tabloids

Who Needs Human Rights? Part I - #CatFlap

We need to be careful of restricting social media

Ken Clarke wants to remove the automatic right to a lawyer upon arrest

Met Police impose random stop & search all across London

The Stepping Hill Prosecution

New "Prevent" policing strategy expects universities to spy on 'vulnerable' Muslim students

#TwitterJokeTrial and related posts migrated from Flayland - http://flay.jellybee.co.uk

Your mission, should you choose to accept...

Head of Humberside Police wonders why justice isn't normally so swift

Shy 19 year old woman of good character could go to prison. LMFAO!

Social media turns everybody into wankers.

Apologies for linking riot cases to #TwitterJokeTrial and #IAmSpartacus

Hollie Bentley (Facebook Riot Girl) - case referred to Crown Court

Another Facebook related Communications Act conviction. North Wales

Speedy prosecution of Facebook teen means no time for decent defence

Links - 17th August 2011

Another Arsehole Justice: Andrew Gilbart QC, Manchester

Judge Elgan Edwards QC dishes out some Arsehole Justice in Cheshire

When the government knows better than the copyright owner

Where should the right to privacy begin and the right to speak freely end?

Why is free speech so difficult for some people to comprehend?

Is America Losing its Sense of Liberty?

#TwitterJokeTrial - Throwing Stones at the Crown's Case

Response to FoIA internal review request for costs of Paul Chambers prosecution

I'm losing sleep

I guess the joke is on me

An open letter to judge Jacqueline Davies

Response to FoIA request for costs of Paul Chambers prosecution

Why Jack Straw is arguably an illiberal ass

FOI - How much taxpayer money has the CPS spent in prosecuting Paul Chambers?

Guest Post - Mark Phillips explains how Paul's #TwitterJokeTrial tweet was very clearly a joke.

How the CPS managed to score an 'own goal' in the Paul Chambers appeal

5 more reasons why the Paul Chambers decision was wrong

section 127 of the Communications Act 2003 states:Improper use of public electronic communications network

Paul Chambers, the CPS and me

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5 Reasons why the Paul Chambers decision was wrong

CPS v Paul J Chambers

section 127 of the Communications Act 2003 states:

Improper use of public electronic communications network

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