Tuesday, 2 March 2010
In my latest Bad Law internet column at The Lawyer, I set out how Paul Chambers - after merely making a joke on Twitter which caused no direct inconvenience whatsoever - was then arrested under the specific legislation which provides for bomb hoax offences.
He was then charged and prosecuted under a different piece of legislation - section 127 of the Communications Act 2003 - which was originally intended for abusers of public telephones.
The Crown Prosecution Service were able to do this because of the technological contingency of the internet now being deemed to part of the public telecommunications system.
In my Bad Law column I expand on the potential dangers in using this particular offence.
This prosecution seems to have happened because when the CPS realised they did not have sufficient evidence to prosecute him under the specific legislation, they believed that it was in the public interest to prosecute him (that is to aim to give someone a criminal record who otherwise would not have one) anyway, because it was a "bomb hoax".
One would have thought that the role of the CPS is to assess whether there is sufficient evidence for a conviction under a given offence and, if so, to decide whether it was still in the public interest to proceed.
However, it appears the CPS in the case of Mr Chambers decided on the public interest in prosecuting him first, and then sought to find an offence to do it under, deciding to use the hitherto fairly obscure 2003 offence.
If this is the case, I believe that injustices can occur.
I do not believe that the CPS should approach prosecutions in this way: as it means that instead of assessing the evidence against an offence, they would be assessing the offence against the evidence, fettered in doing so by a prior determination as to what the public interest demands.
There is not enough information so to come to a final view as to the motivations of the CPS in this case, though my Bad Law post sets out in full their responses to my queries last week.
I do not take "bomb hoaxes" lightly - I was brought up in a city hit by pub bombings in the 1970s - but I also do not take the misuse of criminal law lightly either.
In my view, as I set out more fully at Bad Law, if there was not sufficient evidence to prosecute Paul Chambers for the specific bomb hoax offence, then he surely should not have been prosecuted at all, given the manifestly trivial circumstances of his supposed "offence".
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