#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.

Appellant

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.

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.

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.

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: http://www.whatdotheyknow.com/request/hollie_bentley_prosecution_how_w

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.

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.

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.

#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.