#TwitterJokeTrial - Throwing Stones at the Crown's Case

I haven't written about the so-called Twitter Joke Trial (some know this as the I Am Spartacus campaign) for some time. There hasn't been much to write about. A High Court appeal is on the horizon and anything happening is behind curtains. Some background in case you need it. This page provides links to more or less everything of interest ever written about this important legal case which threatens online free speech. You will find perhaps the most concise beginners guide to the case here.


What has prompted me to return to this case is a recent news item about the resolution of a similar case involving a conservative councillor named Gareth Compton and a journalist called Yasmin Alibhai-Brown. Read all about that here. Compton was arrested in November 2010 and charged with sending a menacing message, which is an offence under section 127 of the Communications Act 2003. This is the exact same charge under which Paul Chambers was prosecuted for his unfortunate Twitter update that suggested ironically that he would be prepared to blow up an airport. Both were regarded by their authors as ill-conceived and daft attempts at humour. One man has been found guilty, while the other will not be prosecuted. In a statement from the Crown Prosecution Service we learn that "Ms Alibhai-Brown has refused to make any complaint to the police on the matter and the member of the public who initially reported this mater[sic] has also refused to provide the prosecution with a statement." And perhaps crucially, we are told the following:

"A file was then submitted to the reviewing lawyer who has carefully reviewed all of the evidence, as well as the fact that we have no statement of complaint, and they have decided there is insufficient evidence for a realistic prospect of conviction."

So the CPS have concluded that the evidential part of its two part Full Code Test is not satisfied in this case. Part of the reason for this is that there is no statement of complaint. Paul Chambers was very unlucky when he was charged in January 2010. The South Yorkshire CPS had mistakenly believed that a section 127 offence carried a strict liability. Paul was told that as he had admitted to committing the act for which he had been charged (the actus reus), he had no choice but to plead guilty. A strict liability offence does not require proof of the intention to commit the offence (the mens rea). Because of this, the CPS concluded that the evidential test was satisfied as a matter of course. Paul's initial guilty plea ensured that. Had Paul received better legal advice in the beginning then one imagines that the entire case would probably have been dropped then and there. In fact I have it on good authority that the CPS would not have pursued a prosecution under section 127 had they been aware that mens rea was required. A 2006 precedent in the House of Lords, DPP v Collins, determined that there is a burden of proof as to intent in a section 127.1 offence, albeit a rather weak one. The CPS' ignorance of this case law is inexcusable and worthy of strong censure. Gareth Compton can thank Paul Chambers (as well as criminal lawyer and legal blogger Jack-of-Kent) for the Crown's edification on this point of law.


DPP v Collins sets out a low threshold for both the actus reus and the mens rea. The act is committed so long as a qualifying message is sent via a qualifying public electronic communications network. It does not matter whether the message actually elicits the reaction in a recipient of being regarded as grossly offensive or of an indecent, obscene or menacing character. It would not matter in fact that the message is not received by anyone at all, except insofar as it is reported to the relevant authorities. The act of sending is sufficient. For mens rea, the Lords have also defined a strangely low threshold. While the Lords recognise that it is essential to examine any message within the context of a fair and just multi-racial society and to recognize that the meaning of a message can be quite different from its literal content, it is only necessary that the sender at the very least be aware that the message is couched in terms likely to be regarded as grossly offensive or of an indecent, obscene or menacing character. I consider it extremely unfair to expect a person to be aware of all the various ways in which his electronic message (taken out of context) might be interpreted. This is a particular problem in these new forms of broadcast style communication where we often forget that our messages might be viewed by people who do not know us.                                                                     


But that's a lot of nuance that we don't really need to discuss right now. What's important is that in the case of R v Paul Chambers, the prosecution has maintained that it is not necessary for a message to be received in order for it to constitute an offence. They have used this reasoning to convince two judges and a pair of lay magistrates that the opinions and reactions of all the various people whom we know received and read Paul's message can be disregarded. All the officials (from airport duty manager Sean Duffield, through to the interrogating officer) concluded that the message was not threatening. "Non-credible threat" is the term that was used by the airport security staff, which is the lowest designation that can be given to any potential threat. The interrogating officer wrote in his notes "There is no evidence at this stage that this is anything other than a foolish comment posted on Twitter as a joke for only his close friends to see", a piece of evidence that was only supplied to the defence on appeal. None of Paul's nearly 700 timeline followers thought that there was any cause for concern after having read his tweet. Had any one of them replied to Paul with concerns he would have had the opportunity to apologize and clarify. Had Sean Duffield or the airport or the police contacted Paul informally he could have set the matter to rest. Most imporantly though, there was no complaint of any kind. I defy anyone to produce a complaint about Paul's tweet in any form prior to his arrest. There was none. Duffield was duty bound to report the incident as per the airport's zero tolerance policy. He is not permitted to rely on his common sense judgement. His report cannot be regarded as a complaint.


How does the CPS statement, to the effect that the lack of any complaint makes the prospect of a conviction unlikely, square with its case against Paul Chambers? There is clearly a double standard at work here. Many of us have long suspected that this case was a stitch-up. In other words the Crown, knowing that there was insufficient evidence to prosecute under the original charge arising from the Criminal Law Act 1977, decided that the incident was of a sufficiently serious nature and in the public interest (given its association with airport travel and terrorism) that it warranted a criminal charge. So they set about finding one and struck upon this obscure communications statute, which was then incompetently misconstrued and misapplied. This is my opinion. I am not leveling an accusation at the Crown Prosecution Service, but I have yet to be convinced otherwise. It seems to me now though that the CPS have come to realize that their misapplication of this law calls for the prosecution of every poor fool like Compton who finds himself swept up in their dragnet. Clearly this is a herculean task (as so many of us have liked to point out), and it seems they no longer have the stomach for it. I'd like to think that the CPS will now drop this case before it descends any further into farce. On the other hand, I do want to see a successful appeal to the High Court that will create a more appropriate precedent for the future than DPP v Collins, in which the Lords were unable to see the ramifications of their judgement beyond the narrow scope of nuisance telephone calls. The next couple months should be interesting.

Response to FoIA internal review request for costs of Paul Chambers prosecution

Today I received a response to my request for internal review of the answer to my FoIA request about the costs of the Paul Chambers prosecution. Here it is:

FREEDOM OF INFORMATION ACT 2000 REQUEST – Internal Review

I refer to Freedom of Information request 2484, the CPS response and your subsequent request for an Internal Review dated 20 October 2010.

Your original request was regarding the costs of the prosecution against Paul Chambers.

Our response to you advised that the case was ongoing and next court of hearing on 11 November.

You were unhappy about the response received and requested an internal review.

At the time of your initial request the information that you requested was not held. I have decided to uphold Ms Kadir’s decision.

However, I can now confirm that the total cost applied for by the prosecution was £2,600. This comprised:

£600 Magistrates Costs (Previously awarded following his conviction)

£620 Crown Court Costs

£720 Counsel’s Preparation Time (9 hours agreed)

£330 Counsel’s Fee Day 1 of the Appeal Hearing

£330 Counsel’s Fee Day 2 of the Appeal Hearing

The CPS does not capture the costs of its staff in the management of case files.

If you are not content with the outcome of this internal review, you have the right to complain directly to the Information Commissioner, who can be contacted at:

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Now. I think this is ludicrous if true, but I'm told by a third party that it may well be. Unlike private sector solicitors, the CPS don't bill time against matters. They should. It doesn't seem like a very good way to account for public money. We already knew about the £2600 claim for costs as this was disclosed during the appeal on sentencing. Next stop is the Information Commissioner I guess, but I'm not expecting much from that quarter.

I'm losing sleep

I'm losing sleep over the Twitter Joke Trial case. Or more accurately I'm sleeping at odd times, as with the nap I had after dinner this evening until 11pm. And now I'm up and doing "work" on the case.I do this because I feel I have to do whatever I can. I'm not sure what I can do really. I'm not sure what any of us can do, not even the lawyers. But I do it because an injustice has been done and it needs to be rectified. A man, who I'm 100% certain did not mean any harm, has been made into a criminal through the misapplication of a law. It could have been me and it could have been you. If you don't see this then please don't bother to comment here. I've written lots about this case already and I'm tired of having to explain it from square one. I'm tired, yes.

I hope Paul Chambers decides to fight on, but I will understand and abide by whatever decision he makes. It will be a tough fight. We may be able to shore up this legal sinkhole without the Twitter Joke Trial as an ongoing case. He needs to know that the support will be there, both morally and financially, should he choose to continue. But he also needs to know that it's okay to stop. I saw the man last Thursday and his hair is looking decidedly more grey than when we met in July. He's 27 years old. In five years the criminal record will lapse. All he needs is a quiet life and a job and he'll be fine. I'd like HHJ Jacqueline Davies to know that this case has nothing to do with me personally. I did not know Paul Chambers or "the woman called Crazy Colours" before the unfortunate event. My involvement is voluntary and out of concern. Perhaps I am not an ordinary person after all, because I won't rest until your judgement is held up as a model of judicial insanity. I won't rest, but I will sleep if I can. Starting now, good night.

I guess the joke is on me

I had arguments with a few people on the Guardian Comment-Is-Free back in May shortly after Paul Chambers decided to appeal his conviction. I recall one person in particular telling me that Paul would be stupid to appeal his conviction. The decision was right and he would surely lose, he said. I said I'd be willing to bet £1000 that the appeal would succeed. I was that confident. Well, I guess the joke's on me. Now we are facing a very difficult situation indeed. The use of section 127 of the Communications Act 2003 to prosecute Twitterers making offhand remarks has been twice legitimized in court. Judge Jacqueline Davies in denying the appeal stated that Paul's tweet was "menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed." I am indeed alarmed, but not in the way she suggests. What do we do? Where do you draw the line?

I've decided on a bit of a legal thought experiment and I invite anyone to chime in with your views on this. It goes like this:

Suppose I place an update on Twitter saying "I've decided to blow up Heathrow Airport. I'll post a photo as proof once I've done it." And let's say that what I had in mind all along was to take a photo of Heathrow Airport (perhaps even an aerial shot from Google maps) and blow it up onto an oversized printout. Let's suppose I manage to do this and several hours or perhaps even days later I pose in front of my blown up photo and then post this to Twitter in a way that makes it obvious that it is connected to the earlier tweet. Have I caused menace? Is this a suitable application of section 127? It could be argued quite reasonably that I must be aware that this is couched in terms likely to cause menace, particularly with my close following of the Chambers case.

This is of course assuming I didn't get arrested before I had a chance to post my photo. I think it would be quite difficult to talk my way out of it in that case, unless I could prove my intentions by showing a piece of registered mail to myself setting it all out. Even still, does my intention here mitigate my action? I must surely have been aware that someone might feel menaced by my tweet. Would I have committed a crime? If so, would that be just? Thoughts please.

An open letter to judge Jacqueline Davies

Slightly updated version

Judgement now available here: http://jackofkent.blogspot.com/2010/11/twitter-joke-trial-crown-court-judgment.html


12th November 2010

Dear Judge Davies:

I hope this letter finds you. I attended the hearing at Doncaster Crown Court yesterday where you denied the appeal of Paul Chambers against his criminal conviction under section 127 1(a) of the Communications Act 2003. I feel duty bound to inform you that I find not only your judgement but you yourself to be an affront to justice and a disgrace to the bench that you adorn. I do not have the judgement in front of me at this time, but the salient points are still clear in my mind. You have echoed the earlier judgement of the district court. That judgement can perhaps be described as hapless. The defence during that trial was not as robust as in this one and Judge Bennett clearly failed to understand some key points. You do not have his excuse. Your judgement is nothing short of sinister. There are two main points that I must take particular issue with in your illiberal and disgraceful judgement.

First, you make a point of saying that you find the appellant to be “an unimpressive witness.” I am quite certain that this is precisely what you said. I fail to see how a defendant in a criminal trial is required to make any specifically positive impression on a judge or jury when the burden of proof clearly falls to the prosecution. A defendant telling the truth under stress may fail to appear impressive. He may be looking for hidden traps in the questions posed during cross examination and doing his best to be cautious. This is only natural and quite expected. Truth may sometimes be stranger than fiction; however, most of the time it is singularly unimpressive. You have chosen to disregard the sworn testimony of a man who, as you put it, was previously of good character when he appealed to you quite honestly that he had no idea he could or would have been causing menace. You are prepared to do this because you seem unprepared to accept that a reasonable person might not see the menace. I will come to that.

It has been pointed out to you that Mr Chambers’ story has not wavered at any time since he gave his first interview to the police. You appear to accept this but dismiss the interview as self serving. You use the defendant’s above average intelligence and education, indeed his soundness of mind, as a weapon with which to bludgeon him. Your reasoning goes as follows: Mr Chambers has used airports and is aware of the heightened levels of security owing to the state of terrorist threat that we live under; Mr Chambers is an intelligent and well educated man of sound mind (reasonable person) who is a very savvy user of social networking sites; The “tweet” is very clearly menacing; Therefore, Mr Chambers must at the very least have been aware that it could cause menace. Is this how we go about determining mens rea? The actus reus is so clear as to be obvious to anyone? What is the point of requiring a guilty state of mind? It has been pointed out to you that nobody involved in the running of Robin Hood Airport took the “tweet” as a serious threat and that the airport was not in any way disrupted. It has been pointed out to you that the interrogating officer made a note giving his opinion that there was no evidence that the “tweet” was anything more than a jest made for only close friends to see.

It has been pointed out to you that none of Mr Chambers’ 690 timeline followers nor any other user of Twitter (apart from airport manager Duffield, who was duty bound to report it) was moved to take any action or make any communication with Mr Chambers after the “tweet”. You have chosen to disregard all of this evidence and instead to conjure an imaginary elderly couple who have booked a holiday and are due to fly out of the airport. This quite sensitive elderly couple might decide to search for Robin Hood Airport on Twitter and then be confronted by Mr Chambers’ tweet. You manage to convince yourself that this imaginary elderly couple would probably feel menaced. Your justification for taking this approach is that the precedent set by DPP v Collins requires that a message can be menacing without having ever been received. It is menacing as soon as it was sent. We cannot unfortunately ask this elderly couple whether they might have been menaced by such a message as this couple does not exist. But in order to take into account Mr Chambers’ status as a reasonable person when considering possible guilty intent, we must be prepared to accept that any and all reasonable persons would feel menaced. This is clearly not true, and I come to that now.

Second, as has already been alluded to, you assert that the bench is satisfied that the “tweet” made by Mr Chambers is obviously and quite clearly menacing and that any ordinary person would agree. [In fact your exact words were “menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed.” as reported here] How you managed to reach this conclusion is frankly beyond my ability to comprehend. Judge (as an ordinary and quite reasonable person I assure you), I have to tell you that you couldn’t be more wrong. Indeed, this statement is an insult to the hundreds and perhaps thousands of people who have given their time to write about this case and to donate money to the legal fund because they felt morally obligated to. We are talking about people like Graham Linehan, Stephen Fry, David Mitchell, Nick Cohen, Jonathan Ross and many other well known figures. We are talking about ordinary people like myself. Indeed, I take this statement as a personal affront and not lightly. I feel very strongly that it could easily have been me in the dock. Many others have expressed similar sentiments.  I wrote a strongly worded letter of complaint to the Crown Prosecution Service in March and later formed a support group on the networking site Facebook. We currently have several hundred members. 

Although these facts were not presented to you as evidence, you must have been aware of this situation because: We can presume that you are a person of sound mind with some intelligence and education as you are a Crown Court Judge; you almost certainly read the newspapers and/or watch television news programs as it is important for a judge to be well informed; you have had months to look at this case and the way that it has been received by the public; therefore, you must at the very least have been aware that this case has been very controversial. I think you may have even said as much in your judgement. It is likely that much of the support for Mr Chambers arises from the view that his action was not menacing. His lack of awareness of a truly menacing act would not have provoked such a strong reaction. If we accept this premise then there must also be at least some doubt that Mr Chambers is lying when he asserts that he was unaware of any menace. You must be absolutely convinced that the defendant is lying in order to uphold the conviction. This has not been proven to anything near an acceptable standard for criminal liability. Your failure to consider these circumstances causes me to question your impartiality and indeed your fitness for the bench.

From the moment I heard your judgement to deny the half-time submission I had a sneaky suspicion that this would not go the right way. You seemed to have already made your mind up. For most of the day I was shaking and felt physically sick. When you read out your judgement to deny the appeal I could not even look at you, such was my disgust. As I gazed down at the poppy pinned to my shirt I couldn’t help thinking of all the brave men and women who have given their lives fighting in various wars to preserve freedom and democracy. You let them all down on yesterday [Remembrance Day] of all days. You have practically criticized the defendant for having the temerity to bring his case before the appeal court. You have shown no sympathy for the financial ruin that he faces now. You frankly have the imperious attitude of a provincial judge who feels territorial about a case that is being defended by a team based in London. Judge, you have failed to deliver justice in this case. I feel it is not too strong to say that you have brought shame and ridicule on your profession, and you deserve for this single case to define your entire career. As the Chinese proverb translates, may you live in interesting times.

Sincerely,
Matthew Flaherty

Response to FoIA request for costs of Paul Chambers prosecution

At the end of yesterday I received from the CPS Information Management Unit a response to a Freedom of Information Act request that I placed a couple weeks ago. This is well inside the deadline of 20 working days. Here is the text of the response:

Tuesday, 19 October 2010

Our ref: 2484

Dear Mr Flaherty

FREEDOM OF INFORMATION ACT 2000 REQUEST

I refer to your Freedom of Information request which was received on 27 September 2010 regarding the cost of the prosecution against Paul Chambers

Section 1 of the Freedom of Information Act creates a statutory right of access to recorded information held by public authorities i.e. the Crown Prosecution Service (CPS). This right is to be informed whether the information requested is held by the public authority or not, and if the information exists, for it to be communicated. A public authority must reply to such a request promptly and in any event, not later than twenty working days after receipt.

I can confirm the case is still an on-going matter and is due to be listed for the part-heard appeal on 11 November 2010; as yet we are unable to confirm the total costs recorded in this case. May I advise that you contact our office once the case has concluded and your request will be considered afresh.

If you are unhappy with the decisions made in relation to your request from the Crown Prosecution Service you may ask for an internal review. You should contact the Information Management Unit (Freedom of Information Appeals), Rose Court, 2 Southwark Bridge, London, SE1 9HS.

If you are not content with the outcome of the internal review, you have the right to complain directly to the Information Commissioner, who can be contacted at:

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Yours sincerely

S Kadir

Information Management Unit

Tel:  020 3357 0899

Fax: 020 3357 0229

E-mail:  FOIUnit@cps.gsi.gov.uk

I will be requesting an internal review today by return. I asked only for the total costs to date in my request and I fully expect that this information should be available. I also believe that the costs are not sensitive information to an ongoing case. The CPS will have 20 working days to conduct a review and respond.

Why Jack Straw is arguably an illiberal ass

Jack Straw: A pompous and arguably illiberal ass

Jack Straw. Jack, Jack, Jack, Jack Straw. What can I say about Jack Straw? My distaste for the man has deepened lately. This article really cheesed me off when I read it: (politics.co.uk | Jack Straw waves goodbye with civil liberty attack).

The article refers to Straw's final keynote speech to the Labour conference as he prepares to make his exit from front line politics. Jack Straw would like you to believe that the party that dubbed itself New Labour and governed for 13 years until May 2010 has a "great legacy on equal rights and public safety." I could talk about the Ian Tomlinson police brutality / wrongful death case and equal treatment under the law, but I won't go there. I could discuss the hardships facing professional and amateur photographers simply going about their business in public, but that seems rather trite in comparison. I could even delve into the legislation that ushered in the suspension of habeus corpus for terror suspects. Key word is "suspects." That's the 28 day pre-charge detention which ministers like Straw repeatedly pushed to extend to 48 and even 90 days. I won't go there. There are so many things I could talk about, but I'll focus on a couple of key points that are of particular relevance to the man himself. First of all, what did he actually say in his farewell speech that's got me so worked up. From the article:

"Our great legacy on equal rights and public safety is at risk," he said.

"The Liberal Democrats have conspired to put the Human Rights Act under review. The Conservatives, meanwhile, are going to cut the use of DNA technology and CCTV, and restrict the ability of the police and local communities to fight the scourge of anti-social behaviour. And who will benefit from this madness?

"There'll be greater freedom for the criminal, less liberty for the law abiding. It's crazy," he added.

It seems to me that Jack Straw really hasn't got a clue when it comes to civil liberties. In England and Wales, legislation allows DNA samples to be taken from anyone arrested on suspicion of involvement in a recordable offence and stored indefinitely in what is known as the National DNA Database, whether or not they are subsequently convicted or even charged. This amounts to invasion of privacy and excessive data collection. CCTV cameras are arguably useful in preventing and fighting crime, but may amount to excessive surveillance. Ironically, CCTV footage was used to convict a police officer in Manchester of assault causing actual bodily harm in a widely publicised case last month. But I digress.

Jack Straw believes that the coalition government will give greater freedom for the criminal. The trouble is that many of these questionable laws introduced by Labour serve to treat the law abiding citizen as though he were a criminal. A good example of this is Paul Chambers. You all know Paul Chambers by now. He is currently in the middle of an appeal to overturn his conviction relating to a Twitter update where he joked about blowing up an airport. At the moment, Paul is a convicted criminal. Frankly, if this type of "criminal" has greater freedom under the coalition then that's fine by me.

Here is Jack Straw in Sepember 2001 talking about the new Regulation of Investigatory Powers Act (RIPA) when he was Home Secretary. Please read the full article from page 1. It is quite interesting. Part III of RIPA makes it a crime to fail to turn over encryption keys and passphrases or otherwise allow law enforcement to decrypt target data within a specified time limit. The offence carries a sentence of up to two years imprisonment, and up to five years imprisonment in an investigation concerning national security. This legislation has been widely panned by critics as an assault on liberty, as it overrides the basic right to silence that all suspected criminals are afforded. According to Jack and taken from the aforementioned article:

"It was government trying to put in place increased powers so that we could preserve and sustain our democracy against this new kind of threat," he said in a Radio 4 interview.

"We needed to take powers so that we could de-encrypt commercially encrypted e-mails and other communications. Why? Because we knew that terrorists were going to use this."

Well, that's really no excuse for overriding the right to silence. On page 2 of that article, we read about how CTC officers suggest to a supect during an interrogation that failure to comply with RIPA III would "lead to suspicion he was a terrorist or paedophile."

"There could be child pornography, there could be bomb-making recipes," said one detective.

"Unless you tell us we're never gonna know... What is anybody gonna think?"

Whatever anybody's gonna think is irrelevant. This is not Stalin's Soviet Union. There is a presumption of innocence in our justice system. There are many reasons a person may wish to keep data on a hard drive encrypted. Some teenagers broke into my house a few months ago and stole my laptop, among other things. Had I encrypted my files I wouldn't have to worry about personal information falling into the wrong hands. I wouldn't have to worry so much about indentity theft, for example. This is only one of a number of non-sinister reasons to encrypt data. Others include the protection of trade secrets or intellectual property and the hiding of potentially embarrassing but otherwise legal material.

Basically the physical parallel of RIPA III is that if I am suspected of storing information relevant to my criminal investigation in an impenatrable safe, I must hand over the combination or face a jail sentence. What if I've lost the combination? The obvious comeback against RIPA III is to claim to have either lost the encryption keys or forgotten the passphrases. I have personally lost two PGP private keys and thus rendered the encrypted data useless. I doubt I am alone. Would the police believe a suspect who made such a claim? Probably not. Where does that leave you as a suspect in such a case? Answer me that, Mr Straw. Then feel free to bugger off from public life.

Unfortunately I think the true legacy of Jack Straw and his Blairite buddies is best summarised by Tony Blair himself in his memoirs. Of all the business of Blair's government, the one thing that he regrets the most is... what do you think? The illegal invasion of Iraq? Nope. Draconian terror legislation? Try again. The Freedom of Information Act? Bingo.