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

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

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

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

Another Facebook related Communications Act conviction. North Wales

I will depart from cynicism just to say that I've never been more afraid for the health of free expression in Britain. This post is on the long side, but I urge you to read it fully as it explains many of the problems encountered with the application of the Communications Act to broadcast style internet communications. A 21 year old man has been convicted in North Wales of an offence under section 127 of the Communications Act 2003 and sentenced to 4 months in prison for a Facebook update that was live for 20 minutes. It has been reported here <http://www.walesonline.co.uk/news/wales-news/2011/08/23/man-jailed-for-four-months-over-facebook-attempt-to-start-riots-in-bangor-91466-29288008/> and here <http://www.bbc.co.uk/news/uk-wales-north-west-wales-14631184>. I have sent a query to CPS Wales seeking information about the nature of the prosecution.

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

DPP v Collins sets out a low threshold for both the actus reus and the mens rea. The act is committed so long as a qualifying message is sent via a qualifying public electronic communications network. It does not matter whether the message actually elicits the reaction in a recipient of being regarded as grossly offensive or of an indecent, obscene or menacing character. It would not matter in fact that the message is not received by anyone at all, except insofar as it is reported to the relevant authorities. The act of sending is sufficient. For mens rea, the Lords have also defined a strangely low threshold. While the Lords recognise that it is essential to examine any message within the context of a fair and just multi-racial society and to recognize that the meaning of a message can be quite different from its literal content, it is only necessary that the sender at the very least be aware that the message is couched in terms likely to be regarded as grossly offensive or of an indecent, obscene or menacing character.

So unfortunately while DPP v Collins provides the necessary burden to prove intent, it severely scuppers the defence by removing the requirement that a message is actually received. It sets out the need to look at a message in context, but this is of little help as it has been interpreted very broadly. It requires mens rea, but only in a very narrow sense. Paragraph 11 of Lord Bingham's opinion is where we get into trouble:

"...On the other hand, a culpable state of mind will

ordinarily be found where a message is couched in terms showing an

intention to insult those to whom the message relates or giving rise to

the inference that a risk of doing so must have been recognised by the

sender. The same will be true where facts known to the sender of a

message about an intended recipient render the message peculiarly

offensive to that recipient, or likely to be so, whether or not the message

in fact reaches the recipient...."

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

Speedy prosecution of Facebook teen means no time for decent defence

I am so angry about this that I don't even know where to start, so I'll just start. I may need to actually restrain myself. *Deep breaths* A case was brought before the Magistrates Court in Bury St. Edmunds, West Suffolk last week concerning a 17 year old boy who posted an update to Facebook that has been viewed as an invitation to start riots. I knew about this case when I saw it written up in the Guardian a few days ago after sentencing. The sentence was a 12 month ban from all social media and some other non-custodial terms. What was not immediately apparent to me when I read that article was that the youth was charged under section 127 of the Communications Act 2003 for sending a menacing message. This is the same charge under which Paul Chambers was convicted and which he is still appealing in what has become known as the Twitter Joke Trial.

The Twitter Joke Trial was a real "red pill" moment for me. The police and prosecution handling of the case was so obviously misguided to me that I couldn't help but speak up. I have been an early campaigner to have the charges dropped and then to have the judgement overturned. I am now a self professed civil libertarian with a particular interest in free speech. It is sometimes difficult to communicate to people the dangers that cases like Paul Chambers' place us all in. Difficult, because people often can't see beyond the facts of the case at hand. I'll delve into the Twitter Joke Trial more in another post. That's not what this one is about.

Here is an article I found today about the Bury St. Edmunds case as it was written up locally after the initial hearing adjourned pre-sentencing. Read it and try not to weep: http://www.eadt.co.uk/news/west_suffolk_facebook_riot_teen_was_idiot_1_991897

From this article I learned that the charge was under the Communications Act 2003, section 127, which deals with the improper use of public electronic communications networks. I don't know why the Serious Crime Act 2007 was not wheeled out like it was in other similar cases after the UK Riots. Perhaps this was felt to be inappropriate when dealing with a minor. Perhaps it was the extenuating circumstances that made this charge seem inappropriate. Here are the circumstances:

On Tuesday morning, the 9th of August, this 17 year old boy posted the following update on Facebook - "I think we should start rioting. It’s about time we stopped the authorities pushing us about and ruining this country. I think it’s about time we stood up for ourselves for once so come on rioters, get some. LOL" Note that the local article omits the "LOL" at the end, which I feel is important. This followed several nights of rioting in London.

At some point in the day, the teen's update was met with comments from "friends", some of whom suggested that the update was foolish and that the author was an "idiot". A brief debate ensued in which the teen mentioned the Duggan shooting in Tottenham and abuses of police power. The result of the discussion was that the teen admitted that his remarks were "stupid" and then deleted his post.

Here's what the prosecutor, Sarah-Jane Atkins, had to say. These are some of the dumbest prosecutorial remarks I've seen, and I intend to show just why. This is from the EADT24 article:

“Within minutes, his friends on Facebook are condemning the words he has posted and telling him in no uncertain terms what a poor opinion they now have of him,” Miss Atkins said.

In response, the boy then posted a second message, saying he didn’t see the point of being pushed around by the police all the time.

The boy then entered into a debate with one friend in particular over the shooting of Mark Duggan in Tottenham on August 4 before admitting his comments had been ‘stupid’.

“We are all thankful that his friends were much more sensible than he was and did not react in any way that would lead to further comments in any shape or form,” Miss Atkins told the court.

Lady, are you serious? "Within minutes, his friends... are condemning the words ... and telling him in no uncertain terms what a poor opinion they now have of him." [Translation] Within minutes, his friends are busting his balls for being an "idiot". Anyone who uses Facebook or Twitter regularly knows that this sort of banter happens all the time.

The boy then entered into a debate with one friend in particular in which he expressed some politically charged opinions and then admitted his earlier remarks had been "stupid". In other words, free speech worked exactly the way it's supposed to. Good speech followed some arguably bad speech and then the world was better for it. Although you wouldn't think that's the way it's meant to work if you listened to the idiotic remarks of arsehole prosecutor Atkins:

"We are thankful that his friends were much more sensible than he was and did not react in any way that would lead to further comments in any shape or form..."

I have to assume that this was not the end of the sentence. Is she really suggesting that a bad outcome would be the posting of further comments in any shape or form? Is she saying that it's a good job his friends didn't post their own similar Facebook updates? Are we all just a bunch of sheep who can't be trusted to think for ourselves? She seems to miss the central point. His friends did not react badly. They reacted well. The situation managed itself. Nor were his friends likely menaced. Perhaps someone turned him in. I don't know. If that's the case then this is tragic. Anyway, he deleted the post the same day. The post did not have much scope to cause menace, frankly. It went to about 400 people on Facebook, most of whom probably either didn't see it or just thought it was "stupid". Is there any need to punish this kid? He made an arguably stupid remark, possibly in jest, and was talked out of it. To impose criminal liability is tantamount to prosecuting a thought crime. It really is.

Now this is the part that really burns my arse. The defence does a terrible job. Horrific:

In police interview, the boy said he had only made the comments to ‘have a laugh’ and didn’t intend anyone to take the actions he had suggested.

David Stewart, in mitigation, said the boy had since realised he had been ‘inordinately foolish’ and recognised what an idiot he had been.

“His friends have a very poor opinion of him and he has a very poor opinion of himself,” Mr Stewart said.

“A lesson has been learnt.”

It's as if the defence counsel has never heard of the Twitter Joke Trial. That's because he probably hasn't. Early on in that case the South Yorkshire Crown Prosecution Service (CPS) persuaded the defendant and his lawyer that there was no choice but to enter a guilty plea as Paul Chambers did not deny that he'd sent the offending communication. In other words, the CPS were of the opinion that this was a strict liability offence. This was despite case law from the House of Lords that required mens rea (guilty mind, or intent) to be proven. Had Paul been receiving good legal advice from the beginning, he would have entered a not guilty plea and the CPS would likely have dropped the case, because they felt there was insufficient evidence at that time to prove intent.

I wonder whether Mr Stewart believed this to be a strict liability offence and that the only possible plea was guilty. I wonder whether the West Suffolk CPS believed this as well. This case is an utter disgrace. The rush to early "justice" following the UK Riots has prevented this young man from gaining access to a robust defence. Had some lawyers that I am well acquainted with had the time to become aware of this case before it was heard before the Magistrates, they could have offered free advice that I believe would have drastically improved the outcome of this "trial". I can only hope that the facts I've examined here can form the basis of a successful appeal. This truly is Arsehole Justice in its purest form. Let me end on this tragic note from the Guardian coverage:

The boy's mother told the court: "He is normally a good boy but, like all teenagers, he has his stupid moments."

Speaking to magistrates, the boy added: "I meant it as a joke which is why I wrote LOL at the end."

Links - 17th August 2011

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

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

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

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

Another Arsehole Justice: Andrew Gilbart QC, Manchester

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

Andrew Gilbart QC, made clear why he was disregarding sentencing guidelines when he said "the offences of the night of 9 August … takes them completely outside the usual context of criminality".

"The principal purpose is that the courts should show that outbursts of criminal behaviour like this will be and must be met with sentences longer than they would be if the offences had been committed in isolation," he said. "For those reasons, I consider that the sentencing guidelines for specific offences are of much less weight in the context of the current case, and can properly be departed from."

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

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

Judge Elgan Edwards QC dishes out some Arsehole Justice in Cheshire

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

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

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

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

When the government knows better than the copyright owner

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

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

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

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

We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office. It was the government’s decision whether to prosecute, not JSTOR’s. As noted previously, our interest was in securing the content. Once this was achieved, we had no interest in this becoming an ongoing legal matter.

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

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