The DPP's proposed public consultation on free speech and prosecutions

Much has happened, dear reader, since we last spoke. I will focus on just a couple related items. You may be aware that a week ago today the Crown case against Azhar Ahmed of Ravensthorpe, West Yorkshire resulted in a conviction at Huddersfield Magistrate's Court. We had hoped that the prosecution would choose to drop the case after the DPP loss in Chambers v DPP at the High Court. Unfortunately, they did not. Rather more unfortunately, the new leading authority of Lord Chief Justice Judge was not introduced into evidence. The defence stuck with DPP v Collins and lost the case. It seems that the judge was not persuaded by arguments that Mr Ahmed never imagined that his Facebook update would be seen by anyone other than his friends and family.

Now, less than one week from that result, the Director of Public Prosecutions yesterday published a statement on the CPS blog about his decision not to prosecute a s127 case and his intention to issue guidelines to prosecutors on social media. Once draft guidelines are published there is to be a wide public consultation feeding into the final publication. This is very good news, but one feels it comes a few days too late for poor Azhar Ahmed who must now await sentencing as he decides whether or not to appeal.

The DPP, Keir Starmer QC, has also been making appearances in the media. I'm told he was on BBC Breakfast this morning, though I've not heard what he had to say for himself. In light of his comments yesterday, I would now call upon the Director of Public Prosecutions to instruct his prosecutors to ask for an absolute discharge at the sentencing for Azhar Ahmed on the 9th of October and to explain to the judge that the CPS feel that a conviction would no longer be in the public interest. Certain of Mr Starmer's remarks are particularly relevant as quoted here:

"This was, in essence, a one-off offensive Twitter message, intended for family and friends, which made its way into the public domain. It was not intended to reach Mr Daley or Mr Waterfield, it was not part of a campaign, it was not intended to incite others and Mr Thomas removed it reasonably swiftly and has expressed remorse. Against that background, the Chief Crown Prosecutor for Wales, Jim Brisbane, has concluded that on a full analysis of the context and circumstances in which this single message was sent, it was not so grossly offensive that criminal charges need to be brought."

All of this with certain transpositions could be said equally of Mr Ahmed's Facebook remarks, which when taken in context are nothing more than a strong but poorly expressed political opinion. Indeed, his message was not found to be grossly offensive on an objective reading.

On top of all this recent business we have also seen, on the same day as this announcement by the DPP, another arrest on a s127 charge for a Facebook posting. A man has been arrested for creating an offensive Facebook page following the murders of two female police officers in greater Manchester. This may be the first time someone has been arrested on a s127 charge for publishing a web page. I will leave it to readers to work out why the publishing of a web page should not be caught by this offence. Start by looking up the definition of "public electronic communications network", then the definition of "electronic communications network", then the definition of "content service". All of these are defined within the Communications Act.

This has not yet been referred to the CPS and I am very interested to see what they would say about it. If it turns out that GMP have got the law "right" and the Lord Chief Justice would agree, then any web page, static or dynamic, can be caught by this offence. If that is the case then we have really opened Pandora's box. I will fight this like hell and I will need your help. In the meantime, please pop over to the Jack of Kent blog to get involved in a discussion about the upcoming public consulation.

Finally, please consider signing this petition in support of Azhar Ahmed if you have not already done so. Thank you.


UPDATE 5:16pm - I said I would leave it to the reader to work out why an act of publishing should not be caught by this offence. Ever one to be diligent, I decided to go and reread the relevant sections of the Communications Act, which are sections 151 and 32. Section 151 says “public electronic communications network” means an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public. Section 32 says:

32 Meaning of electronic communications networks and services

(1)In this Act “electronic communications network” means—
(a)a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and
(b)such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals—

(i)apparatus comprised in the system;
(ii)apparatus used for the switching or routing of the signals; and
(iii)software and stored data.

(2)In this Act “electronic communications service” means a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals, except in so far as it is a content service.

It also defines a content service, but it turns out we don't need that. The internet has been found at the High Court to be a public electronic communications network (PECN); therefore, it is also an ECN. An electronic communications service cannot be a content service, but both operate over an ECN, so it follows that a "message or other matter" sent by way of an ECS or a content service on an ECN can be caught. This is bad news. There is an argument that the internet is not a PECN because it primarily provides content services nowadays, but this got us nowhere in the courts.

Another section 127. This time "grossly offensive" for insulting troops

I told you about the case of Azhar Ahmed, who was arrested and charged with unspecified "racially aggravated public order offences" for a posting on Facebook that expressed the wild opinion that "All soldiers should DIE & go to HELL! THE LOWLIFE FOKKIN SCUM!", among others less relevant. There seemed to be little basis for a public order offence, much less one racially aggravated.

Yesterday (20th March), Ahmed appeared at Dewsbury magistrates court to enter a plea of not guilty, whereupon it was revealed that the charge had been replaced with a lesser offence of sending a grossly offensive communication contrary to section 127.1(a) of the Communications Act 2003.

This statute has been making the rounds since it was first applied to an internet communication in early 2010 for a Twitter update created by Paul Chambers, then of Doncaster in South Yorkshire. It has become the catch-all when authorities take a dim view of some tweet or Facebook status but are not satisfied that there is sufficient evidence to press for a more appropriate charge.

My friend Matt Bradley attended the hearing yesterday and reported on it here. It seems there was very nearly a full scale riot as ex-soldiers and members of nationalist groups such as the EDL gathered outside the court building carrying signs and chanting. Matt's post is unsurprisingly unflattering towards these groups of people, and at the end he muses "Is there such a thing as a racially aggravated prosecution which endangers public order? Because if there is, that's what the CPS are guilty of here."

His remarks earned him a menacing telephone call from someone threatening to publish his address to the EDL. The police were investigating at the time of writing. You'll notice from the photo on that Yorkshire Post article linked to above that someone is carrying a sign which reads "JAIL THOSE WHO INSULT OUR TROOPS". It is ironic that the failure of the police to protect one person's right to make offensive political speech resulted in their being called upon to defend the speech of another against this backlash.

Returning to the case, section 127 of the Communications Act has many problems in the internet age. Adam Banks, editor in chief of MacUser magazine, probably said it best yesterday with his comment "The Communications Act in the age of social media is like the dinosaurs from Jurassic Park in San Diego".

Section 127 was designed to deal with nuisance telephone calls where there is a directed action from one individual towards another. It is in no way equipped to deal properly with communications that are posted on a bulletin board style system where individuals unknown to the author actively subscribe and otherwise seek out messages of their own volition. If you want to know why section 127 is so worrisome, I invite you to read this first and then follow up with the elaborations below.

I would like to point out a couple of particular problem areas that this case reveals. There is currently one case law precedent for the relevant statute to which subsequent cases have referred. In 2006, the House of Lords decided the final appeal of DPP v Collins in favour of the Director of Public Prosecutions in a case where racially offensive language had been used in telephone calls and voice messages made by a Mr Collins to the Westminster offices of his MP, Mr David Taylor. The judgement in that case sets out the tests for the actus reus (guilty act) and the mens rea (guilty mind) necessary to convict on this charge.

DPP v Collins gets us into trouble here with the actus reus because the judgement sets out that "it is for the Justices to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances." Furthermore, the test is that a "message is couched in terms liable to cause gross offence to those to whom it relates."

Now, to the bereaved families of soldiers recently killed in action, Ahmed's remarks would certainly be extremely offensive and hurtful. However, he certainly did not address his remarks directly to such people despite the use of the second person style of speech. I doubt he would have made those remarks if he'd had a Facebook friend who'd lost a relative in a war.

Collins also gets us into trouble with intent (mens rea). "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."

Now, again, he certainly must have known his words would be offensive (possibly grossly offensive) to a certain subset of people, which would arguably be the persons to whom the message relates. But he did not reach out to these people as intended recipients. Any persons to whom this message relates in that sense would have been directed to the message as secondary readers.

Basically, it's open season on anything that any group of people doesn't like. It will nearly always be possible to find a handful of people who will be prepared to testify that something someone has written is regarded as grossly offensive (or menacing, or indecent, or obscene) to them, whether or not the author ever imagined that such people would read it. Apparently the prosecution have found six, and a trial date is set for 3rd July. Must the defence call the remainder of society to the stand?

This is what it has come to, and it is frankly terrifying.

Racially aggravated public order charge for wishing all soldiers dead and damned

It's really hard to know where to begin with this one. There is so much wrong with the charging of 19 year old Azhar Ahmed from Ravensthorpe, West Yorkshire over a comment he posted on Facebook in which he said the following:

People gassin about the deaths of soldiers! What about the innocent familys who have been brutally killed.. The women who have been raped.. The children who have been sliced up..! Your enemy’s were the Taliban not innocent harmless familys. All soldiers should DIE & go to HELL! THE LOWLIFE FOKKIN SCUM! gotta problem go cry at your soliders grave & wish him hell because that where he is going...

This is what the man is reported to have said. There are no other comments reported. I don't like the sentiment expressed here very much. I'll bet you don't either. I understand it though. It is an expression of strong emotion and strong opinion. Frustration and anger feature strongly. There is some hatred expressed for sure. But this is not an incitement to hatred or violence. So I'm more than a bit surprised that the police and the CPS decided to arrest Ahmed and charge him with "racially aggravated public order offences". According to a police spokesperson, Ahmed "didn't make his point very well and that is why he has landed himself in bother."

Racially aggravated? What a minute. What about this posting is racially provocative? "Your enemy's [sic] were the Taliban... All soldiers should DIE & go to HELL! THE LOWLIFE ... SCUM!" Seriously, what about this is racial? I'm scratching my head. The only thing I can think of is that the author of the post has a Muslim sounding name, he was commenting in the context of the reporting of the deaths of white British soldiers in Afghanistan, and the war in Afghanistan is ostensibly one being fought by the West against an evil Islamist ideology. It is "racially aggravated" because of his race. But Ahmed refers to "all soldiers", not just white British ones. He is making a somewhat outrageously exaggerated but clearly political statement about war and "collateral damage". This is a matter of public interest.

What about this is even a public order issue? Is anyone likely to be alarmed or distressed by this wish for the death and damnation of all soldiers the world over? Is this likely to give rise to the fear of violence? If the answer to either of these is yes, then do we accept beyond a doubt that Ahmed was aware of the inciting nature of his words? As best I can tell, Ahmed would have been charged under one or more provisions of the Public Order Act 1986. See CPS charging guidelines here: http://www.cps.gov.uk/legal/p_to_r/public_order_offences/. He may have been charged under any of sections 4, 4A and 5 under Part I New Offences of the Act, or more likely he would have been charged with sections 18 or 19 under Part III Racial Hatred : "Acts intended or likely to stir up racial hatred". Reports suggest that he has been charged with more than one. All of these have a strong burden of intent which would be very difficult to prove from the facts on offer.

Blogger Harry Patterson does the best job I've seen in highlighting the sheer absurdity of this case. In A Tale of Two States, Patterson explains how it is perfectly acceptable for the perceived victims of racist abuse to commit worse acts of abuse in retaliation. Perhaps this is the reason for the public order warning. People who are too stupid or too blinkered to understand non-threatening disagreeable speech are apt to respond in an aggressive and threatening manner. We see it all the time.

Controversial speech, especially the offensive kind, can provoke strong reactions. It challenges rigid orthodoxy and forces us to examine our beliefs. Atheists receive death threats from religious fanatics. Catholics are vilified by liberal atheists as bigots for their views. People behave badly. But we mustn't hold the communicator of his own version of truth responsible for the childish reactions of others. Instead we should try to understand his truth even if we are not prepared to accept it. In short, we all need to grow up and the State needs to stop treating us like children who are liable to throw a tantrum at the slightest provocation.

Azhar Ahmed will appear before Dewsbury magistrates on Tuesday, the 20th of March.

We need to be careful of restricting social media

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!