Friday, February 10, 2012

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

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

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

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

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

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

Monday, February 6, 2012

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

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

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

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

What I learned was astonishing and frightening.

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

When David asked what the CPS would say to bloggers and twitterers about the scope of the Communications Act, their response was:
“Bloggers and twitterers should be aware that there are several Acts which cover potential communications offences – please see the guidance on the CPS website. It is not funny to make jokes of this nature as it can cause serious disruption to transport services and divert police attention away from genuine crimes.”The guidance on the CPS website at the time stated: “It is more appropriate to charge bomb hoaxes under section 51 of the Criminal Law Act 1977.”
Even more astonishing was that the CPS were insisting that the charge could be prosecuted without proving that the defendant had any awareness of what he was doing. This is called strict liability, and it means that a person need not be intentionally or recklessly culpable in order to be guilty of an offence. An example would be the sale of alcohol to underage persons. The CPS charged Paul with this lesser offence instead of the more serious offence under the Criminal Law Act 1977 (for which he was arrested) because, as they acknowledge, “there was no evidence that he intended to induce in the recipient a false belief there really was a bomb.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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