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

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?

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

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

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

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

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

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