Friday, November 16, 2012

Transcript of POD Delusion piece about DPP and new guidelines

This week I lead off the POD Delusion podcast with a ten minute piece about recent comments by the Director of Public Prosecutions relating to his forthcoming guidelines to prosecutors for online speech cases. The transcript is reproduced below, with some links included for clarity.

15th November 2012

I’ve never been a fan of the current Director of Public Prosecutions, but something I read Tuesday had me shaking with rage. This is no exaggeration. Keir Starmer QC  thinks that a person’s Twitter  follower count should determine whether or not to prosecute someone for a “grossly offensive” tweet. On Monday he told the ISP Association conference that his eagerly anticipated guidelines for prosecutors dealing with online speech offenses will likely include looking at a speaker’s reach. Someone who tweets (or posts on a Facebook wall) to thousands something deemed to be grossly offensive will likely face prosecution, whereas someone with a only a few dozen followers might go unpunished.

This approach betrays serious misunderstandings at a basic level. You don’t tweet to thousands of people. You tweet and thousands of people have chosen to have your tweet delivered to them. If some of those people don’t like what they see, they are free to let the tweeter know in the strongest terms. They are free to stop receiving delivery of that person’s tweets. They are free to block the person and report them to Twitter for violation of its usage policy. There is an array of extra-legal remedies available. The same is true of Facebook and other similar forums. This is not a spam mass mailing or a multiple simultaneous crank phone call. He still doesn’t get it. Graham Linehan clearly wasn’t pleased when he discovered that he apparently has less of a right to speak than Mavis ChunderTwunt of East Grinstead, West Sussex.

I am floored to learn that the prosecution of Daniel Thomas was dropped for no other reason than he only had about 100 followers. Daniel Thomas sent a tweet that was judged to be homophobic and involved two members of Britain’s Olympic diving team, naming them without addressing them. After the pair failed to win a medal in their event, he wrote "If there is any consolation for finishing fourth at least Daley and Waterfield can go and bum each other #teamHIV." What struck me when I first read this is how very far from anything like grossly offensive this text is. It is barely even offensive when you take the time to think about what he has done. TeamHIV sort of rhymes with TeamGB, and that may have been what gave him the idea. It is a crude, juvenile, and poorly executed joke. Still, someone reported him to the police and he was arrested. He was very nearly charged with the offense of “sending a grossly offensive message by way of a public electronic communications network” contrary to the infamous s127 of the Communications Act 2003. The only reason he was not is that very few people would have seen it. Actually, many thousands more people have now seen it as a result of this boneheaded case and the media attention it received.

What makes for grossly offensive? Keir Starmer believes that the size of any negative reaction online should also be a factor. Maybe a few people complained about Daniel Thomas’ remarks. I wonder how many complained about the incident on Sunday that saw a young man arrested and held for nearly 24 hours by Kent Police following the posting to his own Facebook wall of a picture of a poppy pin being burned with a cigarette lighter and the caption “How about that you squadey (c-words)”. Squaddie was misspelt. Sadly the c-word was not. Sunday was Remembrance Day. An unthinking local parish councillor told The Sun “It’s absolutely disgusting and disgraceful what this lad did. He should be severely punished. I’ve got five sons either serving or have served in Afghanistan and Iraq. I know what they’d like to do to this idiot.” What would your sons like to do to this idiot? Maybe fill him with lead like that US soldier did to the 16 innocent civilians including women and children he killed in a homicidal rampage in Kandahar last March? Or how about the 7 British Marines who have been charged with murdering insurgents?

I encountered someone who commented on the Index on Censorship blog saying “The poppy is our symbol, our reminder of our fallen from over the years… YES we have free speech, YES we have a free country, but without the hardwork of our fallen, past and present, we wouldnt have FREE SPEECH! I DO believe Jail would be extreme for this ignorant boy, however i DO NOT think he should get away with being so obviously disrespectful and ignorant!!” Without their sacrifices we would not have free speech. And now thanks to people like sr0120 (name and web site address withheld) we don’t. Well done. Must we honour soldiers living and dead? Is that not our choice? Do we not also have the choice to dishonour them? Isn’t that the freedom worth dying for? The ugly sentiments expressed in the offending Facebook post are as old as war itself.

A far right activist group calling themselves Casuals United has taken credit for creating the furore over the poppy burning act, even bragging and laughing about it on the twitter feed of one of its members. The same group took credit for having Azhar Ahmed arrested for a Facebook update suggesting that all soldiers should die and go to hell. The thing is, it’s very easy to whip up outrage. I can find 100 people on Twitter in a matter of minutes who would be prepared to demonstrate genuine or faux outrage over just about anything. Red tops like the Daily Mail depend on it for their sales. A large part of their business is to create and market outrage. Outrage is cheap. There is value in restraint. If we’re going to call it grossly offensive when a sizeable chunk of people are offended and outraged, then we might as well hand law enforcement over to the Taliban and subject ourselves to the tyranny of orthodoxy. Burning a poppy in effigy, calling abstract soldiers a nasty name, these are political statements and should be protected. Whether he realises it or not, what Keir Starmer proposes is mob justice.

I’ll say it again. This should be written in every public space: No one has the right to not be offended. Everyone has the right to be offended, just as anyone has the right to feel any emotion. However, taking offense does not confer victim status and does not justify behaving unlawfully. Being offended does not make you special. It does not give you powers. The function of the police is not to protect the public from second hand insults and inflamed sensitivities. Kent Police ought to have informed angry callers that the young man was merely expressing an unpopular opinion in an obnoxious manner, which is not a crime. The young man was released on bail and has not been charged by either the police or the CPS, but he still might be.

Keir Starmer points out that the Communications Act offence has been on the statute books in one form or another since the 1930s, but the “reach and sheer volume” of communications over social media has seen it increasingly used to arrest people. He anticipates that without a change there could be millions of cases going through the system, more than the combined number of every other offence on the statute book. What I take away from that is simple. He believes that people placing objectionable content onto their own Twitter feeds and Facebook walls that they control is equivalent to making nuisance telephone calls or text messages.

How strange then that the police often fail to pursue cases of abusive and threatening phone calls and text messages. Stephen Farrow of Bridport, Dorset was a drifter who murdered a pensioner in Worcestershire and a vicar in South Gloucestershire not long after sending some threatening text messages to a friend that had her worried enough to phone the police. In one of these messages Farrow personally threatened his friend Michaela Rowsell, whom he met when she volunteered at a church, for rejecting his affection. On New Year’s Eve last year he sent “As you reject me you will suffer. I will be just around the corner and you will never know when I will be there. You don't and never knew just how disturbed I am. The church will be the first to suffer. It was always going to end like this. You can all go to hell. Watch the news because you will know it was me.” Though the message had left her terrified, the police reportedly told her there was nothing they could do. In fact, there was plenty they could have done. s127 of the Communications Act was made for this. It is as though a law originally intended for telephony is now thought to be only suitable for internet communications. Was this text not criminal because Farrow had only the one follower, a woman whose only choices were to receive his texts or change her phone number?

Starmer worries about the “chilling effect” that will be experienced if there continues to be a large number of prosecutions for online speech. But he fails to grapple with the cause of the chilling effect. People are doing things that they correctly believe they have the right to do. They are not anticipating criminal sanctions. The invention of the telephone did not turn good people into nuisances, nor has the invention of social networking technology. We are simply being shown more of someone’s thoughts than we’d get in a meeting in real life. Anyone has the potential to be unpleasant in the right circumstances, and much of what we write in tweets is done unthinkingly. That’s the beauty and the power of it. The chilling effect will be experienced when we are forced by law to think a good deal more about what we write on our public timelines. It will be a result of senseless prosecutions, each making it harder to predict what will be deemed unacceptable.

Here’s the worst part. The accused are often accepting advice to enter a guilty plea even where the prosecution case turns out to be weak. The advice may be that it will be difficult to secure legal aid when contesting the charge on the basis that the communications were not grossly offensive, and that may be true enough. It may be because a trial is too costly and an early plea will be rewarded with a discount. Whatever the reason, each time this happens it emboldens the police to make those dodgy arrests and the CPS to press those weak charges. And each time it happens we see a mob of unthinking people baying for blood. Just being hand cuffed, arrested, and detained for many hours is excessive punishment when you’re innocent. Even where a defendant chooses to contest the weak charges, the odds on first instance acquittal are long. The lower courts have shown a remarkable deference to the mob, real or imagined. We are becoming accustomed to the notion that causing outrage is a crime. This will only get worse.

In an inversion of Blackstone’s ratio, Keir Starmer proposes to imperil 10 innocent people for the sake of capturing that one truly guilty person. This is precisely what the proportionality test is designed to prevent. If he can’t see this then I have absolutely no confidence in him or his public consulation. Keir Starmer, on behalf of right thinking Britons, you have offended our sense of justice. I’m afraid it’s time to go. You’re nicked.

This is Matt Flaherty for the POD Delusion

Monday, October 8, 2012

DPP "round table" discussions on free speech

This week the Director of Public Prosecutions will be holding round table discussions with lawyers to work out where the law should sit in relation to online speech. Here are the points for discussion that have been outlined. I have communicated to David Allen Green my thoughts. He will be attending tomorrow. My thoughts run as follows:

I think it's important to stress to the DPP that it is rarely in the public interest to prosecute a s127 when the message was not sent directly to a person (or with that in mind). It is only with the enactment of the Communications Act 2003 that this has become possible. If it can be shown that in spite of failing to address a message, the sender fully intended for it to reach a person who is likely to have the reaction that this law is seeking to prevent, then perhaps that would be appropriate. However, this should be extremely rare. It is simply too chilling otherwise.

Article 10.2 requires that "the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied (Malone v United Kingdom (1984)7 EHRR 14)". It can scarcely be ignored that in the landmark case of Chambers v DPP beginning with R v Chambers, two lower courts failed to apply the law correctly. The appeal to the High Court resulted in a split decision. Two senior justices were unable to decide how the law should be applied in that case. It required the Lord Chief Justice to bring the courts in line with what most of the public knew already. This law is not sufficiently precise when applied to writings that are broadcast to the world at large.

Although Daniel Thomas was not charged with an offence for his homophobic tweet in relation to members of the British diving team, he was still arrested and the case was referred to the CPS. The text of that tweet is “If there is any consolation for finishing fourth at least Daley and Waterfield can go and bum each other #teamHIV”. That anyone ever thought this should be caught by s127 is itself cause for concern. This is nowhere near grossly offensive even subjectively.

We  have had an Asian man (Azhar Ahmed of Ravensthorpe, W Yorkshire) charged and convicted for a purely political expression. He is to be sentenced on the same day as this round table discussion takes place. We have seen a man arrested (and possibly charged) over a Facebook page that mocks the deaths in the line of duty of two police officers in Greater Manchester. This is a web page. A web page is not a letter. It is not sent to anyone. There seem to be many thousands of similar web pages that could be captured if the offence is to be interpreted that way.

Yesterday we were informed about a man who has been charged and stands before magistrates' court today over a Facebook update that makes a sick joke out of the murder investigation into the missing 5 year old girl April Jones. As LCJ remarked in Chambers v DPP (para 28):

The 2003 Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation. Given the submissions by Mr Cooper, we should perhaps add that for those who have the inclination to use “Twitter” for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.

Yet we are still criminalising rude comment about serious matters when distasteful and painful to those subjected to it. It is not necessary or even desirable in a democratic society to prohibit the causing of gross offence to unknown individuals simply as a result of recklessness. This is no different to laws prohibiting blasphemy. The other offences captured by s127 are similar in this respect. It cannot be in the public interest to convict someone over a speech instance that someone happened to come across and feel injured. The potential injury through disruptive arrests and prosecutions to other members of the public by the application of such a low threshold is much greater.

Friday, September 21, 2012

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.

Friday, August 3, 2012

Transcript of my POD Delusion report this week about #TwitterJokeTrial and the DPP

Following is the transcript of a report I made for the POD Delusion podcast this week, which you can find here. It concerns the actions of the Director of Public Prosecution in relation to the Paul Chambers "Twitter Joke Trial" and other recent cases. It may be helpful to first listen to this interview I gave on Friday the 27th of July to James O'Malley not long after the handing down of the judgement.

On Friday last week I attended the handing down of the Twitter Joke Trial judgement at the High Court. Our own James O’Malley interviewed me as a long time supporter of Paul’s who had been “with him every step of the way”. How do you feel, he asked? I encourage you to listen to what I had to say, and I’m sure James will tell you how. If it hadn’t been for something that happened Monday, I think it would have been included in this podcast.

I told him that I was happy with the result, but angry that any of this had to happen. I blamed the Director of Public Prosecutions for the Crown Prosecution Service, Keir Starmer QC, for his personal decision to oppose the appeal as far as it could go. On Monday the CPS released a statement on their blog clarifying the role of the DPP in this case. There have been two versions of this statement. The first was taken down pending review after intense criticism. The second is frankly little better. I will read it now:

Clarification on decision making in Paul Chambers case
The DPP was not the reviewing lawyer in the case of Paul Chambers, but in June he did instruct the team managing it to consider conceding the appeal. This was considered and progressed, however, at a later stage the DPP was advised that, as a matter of law, conceding the appeal would not be possible. This is because it was not possible because the key finding of fact in the case was a finding of the Crown Court, which only the High Court could overturn. The DPP accepted that advice and reluctantly agreed that the appeal had to proceed.”

This crime against grammar in response to criticism in the media is the most gormless, cowardly and demonstrably false one that I hope I ever have to see. It completely denies any responsibility that the DPP had in prosecuting this case. It is more than misleading. I know for a fact that the defence received papers to close down the appeal after the CPS decided there was no longer a public interest in upholding the conviction. I have this straight from Paul’s solicitor. The client had been notified and believed that it was finally over. Then some days later another letter arrived indicating that the DPP had made a personal decision to continue. The appeal would go ahead after all. Stunning.

The DPP must think we are all stupid. He expects us to believe that there could have been some point of law forcing the CPS to respond to the appeal. There could have been no persuasive legal advice to that affect. Even where there is powerful evidence, the CPS are free to decide not to prosecute a defendant if that prosecution would not be in the public interest. Similarly the CPS are free to decide not to oppose a criminal appeal and the result would be acquittal. This is elementary. If such advice exists, I’d certainly like to see it. I’ve put in a Freedom of Information request to try and find out, but I’m not holding my breath.

The finding of fact by the lower court can have no bearing on the CPS decision. The appeal itself was only ever supposed to be on points of law. Normally the High Court would not have overturned a finding of fact. The only reason it happened in this case is that the Lord Chief Justice was in charge and he can do what he likes. So, he chose to overturn the ridiculous finding of fact at the Crown Court that Paul’s tweet was menacing on its face. He did this with style. Deciding that there was no guilty act, it followed that there could be no guilty intent (or mens rea). Mens rea is another essential ingredient of this offence and it is not one in which the Crown Court was entitled to make a finding of fact. This appears to have been forgotten.

Let’s suppose for one moment though that it’s true. The DPP was somehow forced against his will to contest the appeal. There’s nothing forcing him to actually present a case in court! The CPS could have shown up and said, “You know what? We’re not going to argue a case as we no longer see the point.” They could have simply not shown up! They chose to vigorously argue their case. I was there. I can vouch, though it seemed that Robert Smith QC’s heart wasn’t really in it.

For all of these reasons I don’t believe the Director of Public Prosecutions. The question then remains as to why the DPP chose to pursue this case to the bitter end despite everyone else involved wanting to pass. I think I have some insights into that. He’s probably thinking about a load of recent cases that were concluded but may need to be re-examined in light of the new approach.

Over the past year we have seen more and more examples of ill-conceived prosecutions being brought by the CPS against individuals for things they have written online. In some cases it has been shown that the lawyer reviewing the case should not have even considered the evidential stage satisfied. After the riots of August last year there were several cases involving Facebook communications, many of which saw defendants pleading guilty even though they would have been better off contesting the charges. The CPS seem to like to go fishing and they will accept a guilty plea as all the evidence that is needed. Bear in mind that people will plead guilty to a charge for a variety of reasons, including costs and a desire to avoid the stress of a trial. Also people who are scared and confused are likely to take the advice they are given by their legal briefs. Often a guilty plea will result in a discounted sentence. That rarely occurred in August and September. A handful were charged with the same offence as Paul Chambers, namely “sending a menacing message by way of a public electronic communications network” contrary to s.127 of the Communications Act 2003, but the more popular charge was also a more serious one.

Two guys from Cheshire, Jordan Blackshaw and Perry Sutcliff-Keenan, both pleaded guilty and were each sentenced to four years in prison for the crime of “Intentionally encouraging or assisting an offence” contrary to s.44 of the Serious Crime Act 2007, for which the maximum penalty is 10 years. Both had nevertheless maintained all throughout their cases that they had merely been joking. Apparently they were unaware that they were admitting to a crime for which there is a strong burden on the prosecution to prove intent. It seems they were not alone.

A young woman named Hollie Bentley was also arrested for a Facebook event she posted around the riots and which she maintained throughout to have been a joke. Fortunately for her (and perhaps for us) she chose to plead not guilty. This resulted in the case being thrown out of court due to lack of evidence of intent.  There was simply NO evidence. All the evidence, including the testimony of the interrogating officer, pointed to the communication having been intended as a joke. Most alarmingly, the Daily Mail reported that when the Recorder at Leeds instructed the jury acquit, the prosecution attempted to argue that similar previous cases resulting in prison sentences would have been equally difficult to prove intent! These were cases in which the defendants pleaded guilty, was the judge’s sane response. I see this “have your cake and eat it too” approach as betraying a shockingly cavalier attitude to criminal liability, one that is sharply at odds with the Code for Crown Prosecutors.

I sent a Freedom of Information request to the CPS in December last year to find out how they satisfied the evidential stage of their Full Code Test in this case, which is to say that “an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.”

I was not able to find out much because of data protection restrictions; however, what I did find out was surprising. All that the CPS could tell me was that in examining the mens rea, the lawyer reviewing Hollie’s case referred to DPP v Collins, which is the case law precedent that has been such a big feature in the Paul Chambers case. This was a 2006 case concerning a s127 conviction under the Communications Act applied to telephony. It has nothing to do with The Serious Crime Act. The s.127 law lacked a specific requirement let alone test for mens rea, which has only been forced onto it through this case law. By contrast, s.44 of the Serious Crime Act has an explicit and robust test for mens rea in paragraph 2, which reads:

“But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.”

With such a clear test, there is really no reason to go looking around for another in some bizarre effort to find a creative way to capture the offence. What is going on over at the CPS? It seems to me that there is something really rotten in the culture that has caused them to lose sight of their remit. They appear to be bringing prosecutions on flimsy evidence with oblique legal reasoning that is putting innocent people in jeopardy. Their Full Code Test is meant to ensure that prosecutions are lawful and reasonable, but they don’t appear to be following it. And their decision making is not open to public scrutiny.

Now that the Twitter Joke Trial has come to such a satisfying conclusion, there have been many calls for the DPP to resign. Louise Mensch, the MP to whom Paul Chambers is a new constituent, has called for the DPP to be hauled in front of the Home Affairs committee to explain himself, and so he should. Only today we’ve discovered that a prosecution involving extreme pornography was launched without sufficient evidence to show that the defendant had ever even opened the email that is alleged to contain the offending images for which he is charged with possession. This prosecution, still somehow ongoing and by all accounts an embarrassment to our nation, could not have gone ahead without the explicit approval of the DPP. He has shown time and time again that he is prepared to ruin someone’s life on the flimsiest of evidence, often overlooking critical mitigating circumstances, and without due regard to issues of proportionality. On the other hand, he didn’t see the point of prosecuting a police officer for the unlawful killing of an innocent bystander. He didn’t feel it would be appropriate to charge phone hacking journalists who could only be shown to have listened to saved voice mails rather than fresh ones. Even if the DPP is not responsible for what happened in all these cases, he is still responsible for the culture. If he won’t go of his own accord, the only proportionate response that I can see is to sack the DPP.

Saturday, July 28, 2012

An open letter to the Lord Chief Justice of England & Wales, Mr Justice Owen and Mr Justice Griffith Williams

Dear Honourable Justices,

Thank you. I attended the appeal at the Royal Courts of Justice on the 27th of June and also the handing down of the judgement yesterday, no more than a month later. It was my fourth day in court for the case that ended as Chambers v the Director of Public Prosecutions. My first was the conclusion of the unsuccessful appeal before HHJ Davies at the Doncaster Crown Court. I'm afraid I was moved to write quite a different response to that day, which can be found here (An open letter to judge Jacqueline Davies).

The proceedings that you conducted could hardly have been more different. You three Justices appeared receptive and respectful at all times. You did not, for example, require the appellant to sit in the dock behind bullet-proof glass. On the contrary, you made a point of asking to see the appellant as a matter of personal interest. You gave the impressions, which I do not doubt, that you would do your utmost to understand precisely what it was that you were being asked to deal with. The judgement handed down yesterday proves this. It is perhaps not the perfect judgement that many of us had held out hope for, but it is a very careful and extremely useful one. In my opinion the perfect judgement would have declared that a "tweet" discovered in the manner of this one is not a message for the purposes of the Act. It would also declare the offence to be one of specific intent. However, your judgement is far better than it seemed for a great deal of time that we had any right to expect.

It is a credit to you, Lord Chief Justice, that in taking this appeal for yourself you recognised the significance of this case and its bearing on the credibility of English law. And it is to your credit as well that a prosecution which should never have been brought in the first instance has now been concluded in a manner that leaves the "tweeting" British public quite free from undue interference with the right to free expression that is demanded in a democratic society. After 30 painful months, justice has finally been served. Those of us who care a great deal about the issues and the people represented in this case are extremely grateful.

Once again, I thank you. I will never be able to thank you enough.

Warmest regards,
Matt Flaherty

Friday, June 29, 2012

#TwitterJokeTrial - A glimpse of the finish line

Paul Chambers completed his first marathon in May 2012 and I'm sure he could hardly believe it when the finish line came into view. Now with any luck the longest run of his life may be nearly over.

I attended the 7th court hearing of Paul Chambers' so-called Twitter Joke Trial case on Wednesday, the 27th of June at the Royal Courts of Justice. The atmosphere of this hearing was quite different to that of the inconclusive appeal in February, the result of which was that the two judges on the panel were unable to agree. Wednesday's hearing was before a constitution of three judges, the central of which was no lesser personage than the Lord Chief Justice, Lord Judge, who is the top criminal judge in England and Wales. I'm told that upon learning that LCJ would preside, Paul's solicitor David Allen Green elected to change the approach. The arguments would focus on matters of criminal law and play down the human rights approach taken in February.

It was a real privilege to be installed in the impressive Victorian court room #4, which is LCJ's designated court, and to witness a judge of such standing. Lord Judge picked this case for himself in recognition that it is vital to the credibility of English justice that the outcome is decided carefully and sensibly. The Lord Chief Justice conducted the hearing with a courteous and cordial demeanour. At the start of the hearing he asked whether Mr Chambers was present because "I'd like to have a look at him." Gross LJ did not bother with such pleasantries in February.


All three judges on Wednesday were receptive and clearly doing their utmost to understand precisely what it was they were dealing with. The other two judges were Mr Justice Owen and Mr Justice Griffith Williams. John Cooper QC, for the appellant, did an admirable job of propounding the 10 major arguments in the 25 page skeleton submission. Although the panel decided that it was not necessary to allow the Article 19 organisation to join the proceedings as an intervenor, Cooper was permitted to refer to their submission. The main points laid out in the skeleton argument are as follows:

  1. Doncaster Crown Court did not apply the correct legal test for "menacing".
  2. Section 127 of the Communications Act (and its predecessors) were never intended to deal with communications to the world at large.
  3. Menacing character requires a higher threshold in order to be consistent with the other offences in the same listing.
  4. Not all threats are menaces. A menace is more serious than a mere threat.
  5. The test for menacing character is that an ordinary person would be menaced.
  6. The person sending the message must intend to threaten the person to whom the message is sent.
  7. The mens rea requires specific intent rather than basic intent.
  8. It is an objective test whether the message is menacing.
  9. Article 10 (European Convention on Human Rights - Free Expression) rights are engaged in this case.
  10. The social media platform Twitter, in the context of this case, is a content service rather than an electronic communications network and so falls outside the ambit of the statute.
I hope that Carl Gardner will not mind if I use his live tweeting of the hearing to complement my own notes and memory. I'll shift into the present tense. The arguments jump around a bit and I may have them out of order so it's hard to put them under specific headings, but on the first point Cooper argues that the Oxford English Dictionary definition of menacing referred to by the Crown Court does not provide sufficient clarity. He directs the judges to various authorities that better define "menace". This is a completely new line of argument to the case. Together David Allen Green and John Cooper hit upon the law regarding blackmail as a means of defining menace. The Larceny Act 1916 made it an offence to make unwarranted demands "with menaces"

In seeking to raise the threshold for menacing, Cooper relies heavily on a 1968 case R v Clear, in which Sellers LJ makes the following statement:
Words or conduct which would not intimidate or influence anyone to respond to the demand would not be menaces ... but threats and conduct of such a nature and such an extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwilling to the demand would be sufficient for a jury's consideration. [R v Clear [1968] 1 QB 670 at 679 to 680, 52 Cr App R 58 at 69]
Cooper uses this to argue that in order for a threat to be menacing, it must be a credible one. In other words there must be good reason to believe that the threat will be carried out. This is crucial, as all throughout the handling of the situation at Robin Hood Airport Paul's tweet was classed a non-credible threat. Cooper suggests that the threshold for menacing character is out of balance with the other types of offence in section 127.1 (grossly offensive, indecent, obscene) and also that it is out of balance with section 127.2 which makes it an offence to make use of a public electronic communications network in a variety of ways "for the purpose of causing annoyance, inconvenience or needless anxiety to another". This implies specific intent.

Cooper then goes on to make the controversial argument that intent is required in order for a message to have menacing character. In so doing he cites Sedley LJ in Collins [2005] EWHC 1308 and transposes the meaning to accommodate the different nature of the offence. Sedley in translation asserted that a message must seek to create a fear in the recipient. LCJ is troubled by this argument as the approach taken by Sedley differed from that of Bingham in DPP v Collins in the Lords 2006. Bingham is the authority. Sedley's remarks in the lower court were obiter dicta, meaning that his words are not binding in law. Cooper argues that as there is so little ratio (reasons for a decision) on menacing character, obiter is important.

On to mens rea (or the necessary guilty intent), Cooper suggests that the mens rea for grossly offensive is different to that of menacing, as a menace is a credible threat and so the sender of the message must have intended to threaten the recipient. Owen J asks how to objectively distinguish a menace from a threat. Cooper answers that it is hard to nail down, being very much reliant on the facts, but "I know it when I see it." This sounds like a reference to Justice Potter Stewart in the 1968 US Supreme Court case Jacobellis v. Ohio (378 U.S. 184, 197) dealing with obscenity.

Moving on to freedom of expression, LCJ asks Cooper to explain precisely how freedom of expression comes into this case. He insists (quite rightly of course) that the will of Parliament must prevail over Article 10 free speech rights. Freedom of Speech is a qualified right and can be legitimately interfered with through paragraph 2. Cooper argues that Article 10 is as much for protecting humorous speech as it is for subversive political expression. LCJ asks Cooper whether section 127 is incompatible with the Convention. Cooper suggests that if the Crown Court got it right in this case then the answer is yes. Article 10 means that higher thresholds must be read into s127 for both actus reus (guilty act) and mens rea.

Although Cooper practically apologised in his opening remarks for skeleton arguments along the lines that Twitter is exempt from the legislation, these arguments and the questions they aroused are actually quite interesting. Cooper argues that by the time Paul's tweet reached off-duty airport manager Duffield following his use of Twitter's search facility, it was not a message per se but rather a piece of content on a web site. Use of the search engine, he says, is akin to looking up page numbers for relevant content in the index of a book. This is such a simple and powerful analogy that I can't quite believe it hasn't come up before.

The judges understandably had quite a few questions. Did the tweet start as a message? At what point was it no longer a message? Is not the search result a record of a message? Does that change anything? Cooper argues that the tweet was not a message as far as Duffield and the airport are concerned. It was not directed to them and they were not expected to see it. The message (if indeed it is) was sent to the public timeline web page of Paul Chambers and was intended to be "received" by his followers who would have understood through reading his other tweets what the meaning and intentions were. Those people are the true intended recipients who might have regarded the tweet as a message.

The judges are not entirely convinced that the tweet was not a message when it was discovered by Duffield. LCJ points out that the offence is committed at the moment the message is sent, not when it is found later. Cooper acknowledges that a message with the required character does commit an offence the moment it is sent; however, the manner in which it is sent and where it was understood to end up are important. Section 127 was not designed to deal with the vagaries of social media. LCJ asks whether Cooper accepts that the message is sent the moment the send button is pressed, and the answer is yes. Cooper argues though that a tweet to the public timeline is not to be taken as communicating with the world at large. The airport only found the tweet because someone went looking for it.

LCJ asks whether Cooper would like to abandon the concession to the Crown Court that tweets to the public timeline are visible to the whole world. After a short recess, Cooper responds that the concession was correct. He does however explain that although the public tweets are accessible to anyone who knows how to find them, they are rarely accessed after much time has passed and are typically only seen by the followers. I suppose I failed to appreciate just how deep was the misunderstanding at the Crown Court of the mechanisms for reading tweets. Did HHJ Davies really believe that a public tweet goes to every user on Twitter somehow? Or maybe it was every person in the world with an internet connection? What I still have not heard argued is that tweets sent as replies are every bit as accessible to the public through the same mechanisms after the fact.

There's some talk about appeal on sentencing. LCJ wants to know what Cooper would seek for his client should the appeal not be won. Cooper suggests he would seek an absolute discharge. He then runs through the arguments again. The tweet was not menacing. It was not even threatening. It was a joke, never intended to be taken seriously. The joke was written in cartoon language, with an imprecise time frame and no clear ultimatum. It cannot be taken seriously. Paul specifically avoided directing his tweet to anyone involved with the airport. Had he wanted to make a real threat, he could have easily done so. Cooper compares the tweet to Betjeman's "Come Friendly Bombs" poem and Shakespeare's line "First thing we do, let's kill all the lawyers." That gets a good laugh among the bench and the gallery alike. When the laughter dies down, LCJ says good humouredly "That was a good joke in 1600, and it's still a good joke today." A nice moment.

LCJ asks the very sensible question of whether Parliament were aware of Twitter in 2003 when the Communications Bill was enacted. After conferring with the legal team, Cooper responds that Twitter was invented in 2006 and platforms like it were hitherto unknown at that time. The judges seem to finally appreciate that they're dealing with a completely unanticipated situation. Some discussion about jurisdiction of sentencing ensued, then Cooper sat down to allow David Smith QC to rise for the respondent.


Smith submits to the court that it can only quash the sentence if it concludes that no reasonable jurist would have handed it out. He seems to have picked up on the mood that the judges are aware that this conviction was problematic and needs to be overturned somehow. He is inviting them not to consider the easy way out, which would be an absolute discharge. An absolute discharge would clear Paul's record completely, but he would be unable to recover costs and may still have to pay the CPS court costs. It would also fail to set a precedent in law. It's not clear to me why the DPP would argue against this.

Apart from the aforementioned, there's not really much of anything new in the DPP's arguments since February. The Crown Court did not concern itself with the context in which the message was read, but only at the time it was sent. It also relied on communications between Paul and his girlfriend to enhance the notion of terrorism on Paul's mind. He had tweeted to her that he "might have to resort to terrorism". This, they felt, indicated that he knew full well what he was doing. I completely disagree. On the contrary, it shows that the tweet to the public timeline was simply a continuation of a train of thought. The terrorism motif is itself arguably just a subconscious nod to the historical conflict in Northern Ireland. The tweets to Sarah (@crazycolours) do nothing to heighten mens rea. Paul didn't imagine any of these communications would arouse fear in anyone.

After a lunch break, Smith continues with his submissions. He argues (mostly from DPP v Collins) that the necessary intent is satisfied so long as the sender is aware that the message might be read by someone who could reasonably regard it as a threat and be frightened. Owen J suggests that what happens to the message after it is sent (as understood by the sender) could have an impact on mens rea. Smith doesn't think so. He says, basically, that most people (i.e. twitter users) would be aware of what a member of the general public would find grossly offensive or menacing and behave accordingly.

Past tense again for a bit. I may have imagined this, but it seems to me that the judges were not really impressed by that argument. Perhaps they felt the winds produced by about a hundred people vigorously shaking their heads, rolling their eyes, and snorting. I tell you it was enough to slightly disturb a pile of papers a few meters away. After all, the only reason we're even here is because thousands of people disagree that this tweet was something that constitutes a crime. Hundreds of people gave money to a fund to allow this, the 7th hearing to happen, and the 6th, and the 5th, and the 4th, and the 3rd even.

Smith makes what seems at first to be a strange argument. He outlines the process by which the CPS make a decision to prosecute, known as the Full Code Test. It consists first of an evidential stage and then of a public interest stage. He says that the CPS followed its code and made a proper decision to prosecute. LCJ, somewhat incredulous, asks what the CPS decision to prosecute has to do with this court? Smith appears to be defending the decision to prosecute; however, he is merely stating a view that the impact of Article 10 is not to heighten the thresholds for the evidential stage, but rather to inform the public interest stage. I do not like this one bit. The CPS have in my opinion not been giving due regard to Article 10 issues in recent communications prosecutions (sometimes not even due regard to evidence) and they are entitled to a qualified Freedom of Information exemption from disclosing their decision making.

There are some other submissions, but nothing earth shattering. Overall, I think we made the better impression. I left the court feeling optimistic and I still feel good about it. I think the judges know that there's something that needs fixing (a bug in the system). The only question is how. Hopefully we'll find out within a few weeks.

Why Edwina Currie will not get done the way Paul Chambers did

Just a quick one. I still owe an account of my visit to the High Court Wednesday for the #TwitterJokeTrial case. It has come to light that former Health Minister Edwina Currie has joined Twitter. Ms. Currie has been outspoken in her belief that Paul Chambers was rightly convicted of the offence under section 127 of the Communications Act 2003. She had a blazing row with comedian Rufus Hound on BBC Radio 5 Live in 2011 in which she blazingly displayed her ignorance of the case and a great many other things.

The latest story is that Paul Chambers has effectively pwned her over a recent tweet in which she suggested that she would shoot tax exiles. She appears not to appreciate that this message has the potential to cause menace by the CPS interpretation. This is of course a silly suggestion, but it's no more silly than the suggestion that Paul's tweet had the potential to create any real fear. But Edwina Currie needn't worry about being done the same way as Paul, just as Tory councillor Gareth Compton needn't have worried over his remarks about stoning Yasmin Alibhai-Brown to death. The reason is that there is not a feeling among security officials that the public are constantly in fear of people being stoned to death or executed by firing squad.

The CPS seem to believe that when there is a suggestion of terrorism in relation to air travel, all objectivity goes out the window while the public are busy panicking. The lower courts in R v Chambers more or less accepted this premise. Speaking for myself, this is not true. I can objectively tell a joke from a threat even when the joke suggests blowing up an airport. I think the same goes for the ordinary person, or the "man on the Clapham omnibus".

Police and prosecutors are however extremely afraid of getting it wrong. If something were dismissed as a joke but later turned out to have been a warning of things to come, we the public would blame the authorities for failing to act. We would do this even though we ought to know that it is impossible to prevent all acts of terrorism no matter how much money and resources are devoted to that. If the worst were to happen, the authorities would then demand greater powers to combat terrorism, which we would unfortunately feel inclined to give them. I call this the hysterical feedback loop.

We must break this destructive cycle and let those in control know that we're not all constantly in fear of terrorism to the point where we must take leave of our senses. If we can do this then there's a good chance of preventing silly things like the #TwitterJokeTrial from happening in the future.

Thursday, June 21, 2012

On #TwitterJokeTrial and Trolling - the big disconnect

Imagine, if you will, a world without Internet. In this fantasy world, traditional verbal modes of communication have evolved to such a level of complexity and sophistication that there was never any need to invent computer driven textual communications. Instead of the familiar laptop or workstation, there is a sophisticated sort of CB or ham radio in every house and on every desk. Mobile and land telephones are also able to hook into this radio network. There's a catch though. Each utterance on the network can only last a few seconds.

Never mind how, but the radio network has managed to give every end point its own channel, allowing anyone anywhere in the world to tune in as a selective and conscious act. These end points are movable. A person acting as a channel operator can use any radio equipment and it makes no difference to how others tune in to the channel. An operator (who is perhaps good at disguising his voice) can even run several channels at once and others might not know unless he wants them to. A channel operator is also a listener. A listener is merely an operator who is not at that moment speaking.

More than that, any listener/operator can simultaneously tune into any number of others' channels that they like and can easily (within limits) distinguish the source of any information. Channels can tune with each other if those operators like to talk together a lot, and this does not in any way disrupt the ability of other listeners to tune in, but listeners can only hear those parts of the conversation they are either tuned into or that speak directly to them. People need to remember though that others might listen in on their conversations without them knowing. There's a purely private option. Anyone who is tuned into a channel has allowed that channel operator to send them a private voice transmission. If two channels are mutually tuned then the operators can have a private conversation in this fashion.

Private conversations are not typical though. This network grew up with and was empowered by sharing. What began as truckers, police, and ham radio enthusiasts shooting the breeze has evolved into a fully globalised, near instantaneous network of information sharing. It's amazing. Every single utterance is recorded and can be easily retrieved and replayed. The radio understands voice commands and can even search for specific words in the large archive of sound files, not unlike the ship's computer that was imagined for the starship Enterprise. With this truly amazing system, an operator can recall an utterance (the slang for this is "bleat") and can issue the "re-bleat" command, allowing it to be retransmitted with full attribution over his own channel. This helps listeners discover new channels of interest.

I know what you're thinking. But why did I take the time to reconstruct the Twitter social network as a futuristic CB radio system? I did it because I believe that today I discovered where the disconnect lies for people who can't seem to get their heads around why Paul Chambers was never a "troll" and never menaced anyone.

Paul Chambers is of course the man at the heart of the Twitter Joke Trial case, which hears what will hopefully be its last appeal next Wednesday. I and several others close to that case became angry today when we discovered an article detailing abusive online behaviour written for Computer Active magazine. This article referred to Paul Chambers alongside a handful of other internet users in the context of trolling (Paul's reference has now been removed from the online version).

The definition of a troll is given thus: "An internet troll is someone who posts inflammatory and sometimes threatening messages in any web community, such as a forum." I'm not certain but I believe that this definition has been informed by a Wikipedia page on the subject. I contacted the author of this piece and suggested that a troll is rather someone who deliberately engages DIRECTLY with people to cause annoyance. She gave the reply "I would say a troll someone who posts inflamatory messages HOPING to get a reaction but will continue even if this doesn't happen". My response to this was "That works on some forums, such as chat rooms, etc. But on modern social media everyone is his/her own channel."

That's when it dawned on me. Here is the disconnect. This is why it's so difficult to explain to inexperienced people exactly what is going on when someone makes a throw-away remark on their Twitter public timeline. It's not immediately obvious that everyone really is his or her own channel and that generally speaking anyone who wants to listen has to tune in. It's so obvious to most of us that we don't bother explaining it that way. Instead we talk about the various modes of communication that people can be engaged in on Twitter and attempt to split hairs. It's only by building up an analogy based on a traditional communications model that we are able to show this plainly - to even see it plainly. If a journalist writing for a computer magazine can be led to believe that Twitter Joke Trial was an example of trolling, then what is a judge to think?

I have had a constructive conversation today with that article's author and have found that she genuinely meant no harm. She was sorry to have upset people and is even a supporter of the cause.

Friday, June 15, 2012

A cautiously positive response to CPS handling of my Hollie Bentley FOIA request from ICO

In December of 2001 I sent a Freedom of Information request to the Crown Prosecution Service asking for details of how they satisfied their Full Code Test with respect to the doomed prosecution of a 19 year old woman from Wakefield named Hollie Bentley who joked on Facebook about the August riots. Here is that request:

It elicited an unsatisfactory response following internal review, and so I referred the matter to the Information Commissioner's Office. Yesterday I received cautious support from my case handler there. I wanted to share this now. It seems there is a case to be made that a partial disclosure of the information I'd requested is in the public interest. Here is the text of the email I received:

Dear Mr Flaherty, 
I write further to my email of 1 June 2012. Having now had an opportunity of considering this case and reading the correspondence on file, including the arguments which you previously made to the CPS, it is clear that this case involves significant and strong public interest arguments both in favour of maintaining the Section 30(1)(c) exemption and in favour of disclosing the information requested (with names of individuals redacted by virtue of Section 40(2)). Consequently, I am unable to say, at this initial stage of my investigation, what the likely decision of the Commissioner would be, were this matter to require the issuing of a formal Decision Notice. Since the formal investigation process can take some time (especially where a Decision Notice is required), I have spoken with the CPS to explore whether there is any possibility of the information you have requested being voluntarily disclosed to you (in redacted form).

I will be writing to them within the next week to provide them with the Commissioner’s investigation letter and to give them the opportunity to either provide submissions maintaining their position or an opportunity to disclose the withheld information in redacted form, should they wish to do so. As noted, the public interest arguments in this case are finely balanced and the public interest background to the charging of Hollie Bentley (and similar cases) is, as you have articulated, significant. The Commissioner always seeks to secure informal resolution of complaints where possible and if there is any possibility of doing so in this case, this should be clear when the CPS respond to the Commissioner’s investigation letter. Please note that public authorities have twenty working days to respond to an investigation letter, but in cases where a careful deliberation of the public interest is required (such as this one) this deadline may be slightly extended if required and reasonable. 
I will contact you again once the CPS have responded to the Commissioner’s investigation letter, but should you have any questions or queries in the meantime, please feel free to contact me on my direct dial number below. Please note that I am usually available between 10am and 1pm and 2pm and 5.30pm. 
Kind regards. 
Thomas Thwaites Senior Case Officer
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.

I'm looking forward to future developments.

Friday, June 1, 2012

Transcript of my #TwitterJokeTrial report for The POD Delusion

Please have a listen to this week's POD Delusion. Justice Denied's main contributor Matt "Flay" Flaherty reports on the Twitter Joke Trial developments that happened Monday the 28th of May. The report begins after an introduction at 8 minutes 40 seconds, and the working transcript is shown below:

I'd been eagerly awaiting the result of the Twitter Joke Trial appeal in February at the High Court, so I felt quite excited and a little sick when Paul Chambers' lawyer David Allen Green announced Monday morning that there was big news coming around noon. It turned out the big news was that the outcome of the appeal was, well, nothing. No result. The two justices who heard the appeal by case stated on the 8th of February were unable to agree after nearly four months of deliberation. To be fair, I doubt it was occupying them the entire time, but still. Talk about a body blow! Nobody was expecting this: an adjournment with an order for a fresh appeal to be heard as soon as possible by a constitution of three new judges. Three: that should ensure a majority opinion. When you think about it, an odd number would have been quite a sensible feature this time around. Appeals by case stated are on points of law only, and the judges are almost always unanimous. There have only been two other instances this century when that hasn't happened.

So it's a do over. All the fund raising that successfully paid for a leading human rights barrister and various expenses has to be done again, because that money is spent. Paul and his fiancee Sarah will be left dangling again for who knows how long. I've been caught up in this case since practically the beginning. I was there sinking in my chair at the Crown Court in Doncaster in November 2010 and again at the High Court in February this year. It's not my life that has been disrupted by a prosecution that never should have gone ahead. I didn't lose two jobs because of a conviction that as many appeals failed to overturn. But I take each setback personally because this is important.

This is about the right to express oneself on the internet using satire and colourful language. To be able to stand up and emphatically declare in fewer than 141 characters "The next person who mentions the mess that Labour left us in is gonna get a brick aimed at his head." Or even, "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 no one in particular. To everyone at once.

Jokes. Figures of speech. Flippant remarks. They may not be funny or even intended to be funny. For what it's worth, I don't think what Paul tweeted in January 2010 (which saw him led away from his office in handcuffs by anti-terror police) was funny. I don't think he was trying to be funny. I just think it's a shame that he didn't exaggerate enough to make it really clear to the morons who pursued him that this was a thing that was never going to happen in a million years. A criminal record can ruin a person's life. The threat of a criminal conviction can cause months of anxiety and distress. Criminal liability should not be doled out with casual disregard.

It doesn't matter that Paul was joking and that he didn't issue a threat or a hoax, because his words had the potential to menace members of the public. Two judges in separate trials decided this was so. The tweet is of an unambiguously menacing character, they said, and so it falls afoul of that section of the Communications Act 2003 that deals with the improper use of a public electronic communications network. And the flimsy guilty intent requirement is satisfied because Paul must obviously have known the words could cause menace. After all, he's not an idiot.

When the case arrived at the High Court, I was dismayed to find that the judges gave no time to arguments against the menacing character enjoined to the offending tweet. This had been stated as fact by the two lower court judges and so was outside the jurisdiction of an appeal by case stated, which only deals with points of law. The judges also suggested to counsel that Paul's tweet has to be examined in its context the moment it was sent, and anything we might later learn is immaterial.

The content and 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, our only case law precedent. But the reasoning that came to light in Chambers v DPP forces us 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 the lower court judges reached their decisions.

This is indeed thorny. Where the appeal had real promise though was with the proportionality argument. The European Convention on Human Rights requires that any interference with a Convention right must satisfy a pressing social need and be proportionate to the legitimate aim pursued. The justices and the DPP counsel acknowledged that the lower courts had failed to properly apply this test. For the appellant, Ben Emmerson QC made the point that where proportionality is concerned, the court ought to be able to look at the wider context of the tweet, i.e. all of the circumstances around it and the true meaning implied. The justices reserved judgement that day.

I left feeling deflated. I didn't like the fact that the case seemed to hinge entirely on proportionality. The best we could hope for was a sort of half victory. But the judges were unable to decide; therefore the lower court judgement stands while a fresh appeal is under way. The appeal mechanism will be the same as before, that of case stated. So presumably the menacing character of Paul's tweet is still accepted fact.

This adjournment offers some interesting considerations. Article 10 of ECHR sets out the right to free expression in its first paragraph. The second sets out the manner in which this right can be interfered with by the State. That reads "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

There's a lot going on in that paragraph, and I'm no lawyer but I can read just as well as the next guy and I'm good at logical reasoning. I have read on UK Human Rights Blog that where interference with Convention rights are concerned "prescribed by law" (sometimes "in accordance with the law") has a particular meaning whereby three conditions must be met:

(1) there must be a specific legal rule or regime which authorises the interference;
(2) the citizen must have adequate access to the law in question (The Sunday Times v United Kingdom (1979) 2 EHRR 245);
(3) the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied (Malone v United Kingdom (1984)7 EHRR 14).

Now, you're free to disagree, but when we have two senior judges spending four months failing to decide on points of law I can't see how the average citizen is able to foresee how that law might be applied. Paul certainly could not have foreseen this prosecution. David from Gwynedd, North Wales and an unnamed teen from Bury St. Edmunds could not have foreseen their prosecutions over riot related speech on Facebook to which they both unfortunately pleaded guilty despite insisting they'd been joking. The former served a four month jail term. Helen and Adam of East Dunbartonshire never imaged they would be arrested and charged over tweets suggesting their planning officers deserved to die horrible deaths. Those charges were dropped several months later with very little explanation. And Azhar Ahmed of Ravensthorpe, West Yorkshire still faces trial for a Facebook status in which he offered the opinion that all soldiers should die and go to hell. A police spokesperson is actually on the record saying "He didn’t make his point very well and that is why he has landed himself in bother." I wish him luck. He's clearly going to need it.

Logically, one might argue that a failure to reach a decision in Chambers v DPP should signal that the law lacks the necessary precision for compatibility with the Convention, which should then demand that the conviction is overturned and the law amended. But that's not how these appeals work. This has become the case that eats its own tail. Will this act of judicial cowardice be the stroke that finally wins the case for Paul Chambers? Sadly, I doubt it will carry any water. Fitting though that would be, the Law is not subordinate to logic. The Law is very much an ass. But after 2 and a half years of being messed about over a silly joke, it would be nice to see Paul get the last laugh.

Wednesday, April 25, 2012

Section 127 and the Sex Chat Line

Recent cases of prosecutions brought under section 127 of the Communications Act 2003 over communications conducted online in social media contexts have cast much doubt upon the suitability of this law. Twitter seems particularly susceptible as it lends itself to the "publication" of ephemeral content, random remarks and thoughts. How has this law become so controversial?

Section 127(1) of the Communications Act started life as section 10(2) of the Post Office (Amendment) Act 1935. Here is a comparison of the two:

Section 127(1) of the Communications Act 2003:
127   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.
 Section 10(2) of the Post Office (Amendment) Act 1935 [source - Andrew Sharpe]:
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.
The original intention of Parliament was to protect telephone operators (historically female) against exposure to lewd callers. The amendment extended this protection to the general public with a view to protecting the integrity of the public telephone network, which at the time was publicly funded as well as being provided for the benefit of the public. It was re-enacted several times throughout its life and took its latest shape in 2003. In both forms and all throughout you will see the reference to indecent and obscene. So what about telephone sex chat lines? Surely this falls afoul of Parliament's original intention to protect the integrity of the public telephone network.

The case law touches on this point briefly. At the very end of DPP v Collins, Lord Brown makes reference to telephone chat lines but rather unhelpfully leaves this as a matter "for another day".

...I am finally persuaded, however, that section 127(1)(a) is
indeed intended to protect the integrity of the public communication
system: as Lord Bingham puts it at paragraph 7 of his speech, “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”. (Quite where that leaves
telephone chat-lines, the very essence of which might be thought to
involve the sending of indecent or obscene messages such as are also
proscribed by section 127(1)(a) was not explored before your Lordships
and can be left for another day.)

And the desire to protect the integrity of the public communications system is precisely why the sending of a qualifying message is enough to breach the law, regardless of whether it is received. Lord Brown's remarks here more than anything else highlight the absurdity of this legislation in the modern day. Unless the meaning of indecent has changed or we regard a telephone sex chat line as a content service, as defined in section 32 of the Act, it would clearly fall afoul of this law. I can't see that either of these conditions is true. It really is a shame that the Lords did not consider such use cases in 2006. It might have saved us a lot of bother now.

Thursday, April 19, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This has been Part I of II.