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Saturday, 18 September 2010

Why the Paul Chambers case matters


This week will see the appeal by Paul Chambers of his conviction under section 127 of the Communications Act 2003.

He was convicted - and so given a criminal record - for what was, and what was intended to be, a joke contained in a tweet.


(By way of background, see my posts here, here, and here.)


The appeal takes place on Friday at Doncaster Crown Court; the time estimate is one day.

In one way, this is not a significant case at all: just another appeal from the Magistrates' Court by just another defendant, and indeed the formal penalty - a fine and costs totalling £1000 - is not anywhere near a custodial sentence, but is instead at the lower end of what the English criminal justice system can impose.


However, it is one of the most significant cases of our times, and it is significant on three levels.


First, there is the horrifying lack of common sense or proportion shown by any of those who dealt with the matter.

The original tweet sent by Paul Chambers was clearly a joke and was sent only to his Twitter followers. For anyone else to see it would require directed effort.

It came up on what seemed to be a deliberate internet search by an employee of Robin Hood Airport.

He noted it was a "non-credible" threat.

But it seems "process" required he pass it onto South Yorkshire police anyway.

Then the police are breathtakingly gormless.

They send several anti-terrorist officers around to Paul's workplace.

(Unsurprisingly, Paul loses his job very soon after.)

The police arrest Paul and keep him in custody for a number of hours.

However, it appears that even the police do not think this is a serious matter.

But again "process" means it needs to be taken further. And so the case is referred to the Crown Prosecution Service (CPS).

The CPS realise quickly that there is no evidence for Paul to be prosecuted under the bomb hoax legislation.

(I set out what happened at the CPS here and here.)

The case could then have been dropped. Perhaps someone could have had a quiet word with Paul.

But the CPS decide to prosecute Paul anyway and dig-up an obscure offence intended for a quite different purpose to do so.

And so they prosecute Paul at the Magistrates' Court, wrongly telling themselves, the court and the defence that the offence does not require proof of wrongful intention.

On that basis, Paul pleads guilty.


At no stage in this story does any person who knew better - either at airport security, the police, or the CPS - act in a sensible and responsible manner.

None of these people believe this is a serious matter - the airport security judge it "non-credible", the police seem to eventually accept it was not a significant issue, the CPS know it is not a bomb hoax - but Paul is to be prosecuted anyway, just because no person can be bothered to stop an illiberal process which would give a blameless man a criminal record.


It was at this point I got involved.

My day job is as a media and communications lawyer, and in the news reports of Paul's guilty plea I was shocked to see the wording of the Communications Act. At a stroke I realised that there had been an injustice.

I wrote in The Lawyer that there seemed to have been a miscarriage of justice.

This article led directly to Paul changing his plea (which he was able to to do because he had not yet been sentenced).

The CPS would be required to show proof of intent, which of course they could not.

I then just expected Paul to be acquitted.

And so it seemed did everyone else, including (I understand) the prosecution.


However, the District Judge in a judgment which simply defies credibility (and which is, in my view, a disgraceful decision) purported to find sufficient intent.

Paul was found to be guilty.

Paul now had a criminal record.

The hapless decisions of airport security, the police, and the CPS had now been complemented by an illiberal and incorrect application of the law by a judge who should have known better.

This is not how our criminal justice system should be working.


The second significant feature of this case is how the law in question was used by the CPS.

It may seem a technical legal point; but the importance of this aspect should not be underestimated. The implications of the CPS position are highly concerning.

The prosecutors of a section 127 offence need to show that an appropriate action occurred (the actus reus, in legal jargon) and that the defendant had a wrongful intention in doing this action (mens rea).

Paul's tweet was not menacing - there is no actus reus. And he had no intention of sending a menacing communication - so there was also no mens rea.

Of course, one could take a different view to mine as to whether actus reus was made out.

But it is misconceived to say that there was any wrongful intention.


However, the CPS regard the section 127 offfence as not needing any intention WHATSOEVER.

The CPS regard section 127 as a "strict liability" offence, which means they do not believe they have to provide any evidence at all of intention before they decide to prosecute someone.

Once the CPS have decided that there is evidence of menacing communication, that is enough for them to launch a prosecution.

And once the CPS prosecutes a strict liability offence then someone gets a criminal record, unless the judge intervenes.

The breadth of what constitutes a communication under section 127 is immense: emails, website content, telephone calls, texts, and so on.

If the CPS decide the content of the communication is "menacing" (or grossly offensive, indecent, or obscene) then you are open to them seeking to give you a criminal record, regardless of your intention.

Just setting out Paul's tweet on a website, as I will do again now, would be enough for them to prosecute:

"Crap! Robin Hood Airport is closed. You've got a week... otherwise I'm blowing the airport sky high!"


It matters not to the CPS that I am quoting this with the intention of discussing a legal issue of public concern; my intention is irrelevant.

The CPS position would be that I am just as guilty as Paul; that I deserve to face prosecution; and that I too deserve a criminal record and my life ruined.

The CPS believe that intention is irrelevant with a section 127 offence.


This cannot be correct.

And it is indeed not correct; the House of Lords in Collins decided that the "offensive" alternative of the offence requires evidence of intention; and this carries over to the menacing element.

So it is the CPS position on the strict liability which is the second significant feature of the case; and that concerns anyone who sends any electronic communication.

Including you.


The third significant aspect is the human context.

Prosecutions and criminal records ruin lives.

Paul has now lost two jobs because of this situation. His quite wonderful partner set out in a a moving guest post how the conviction had wider consequences.

I have had the privilege of meeting Paul a couple of times since this case emerged (and I have helped co-ordinate his appeal).

Paul is a great bloke, engaging and good-humoured.


But it wouldn't matter if he were an arsehole.

Prosecutions and criminal records should not be light affairs; they fundamentally affect the lives of the defendants, their families, and friends.

A criminal record has never improved a person's life; a criminal record has never directly benefited society as a whole.

Of course they are unavoidable for those who commit crimes; but they should not be imposed casually, and certainly not as casually as it has been imposed in this case.

Paul should not have lost one job because of this, let alone two.


The Paul Chambers case - known as the "Twitter Joke Trial" - has three points of significance:

- how relentless administrative and judicial stupidity can end in a conviction;

- how the CPS are wrongly using criminal law in respect of electronic communications; and

- how a criminal record can change a person's life for the worse.

Let us hope Doncaster Crown Court can reverse this injustice on Friday and allow Paul to rebuild his life.



COMMENTS MODERATION

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55 comments:

James said...

Thank you. Best wishes to everyone concerned on Friday.

Schroedinger99 said...

A travesty.

And the really really weird thing about the 2003 Communications Act is that not only has it been misused (as in the Paul Chambers case) for purposes for which it was never intended, those charged with using this act have repeatedly failed to use it for the purposes for which it was intended. (see http://badreason99.blogspot.com/2010/05/paul-chambers-phonepayplus-and-perverse.html)

Korhomme said...

Powerful piece. And the actions of the police and the CPS defy 'common sense'.

Just curious; how much effort was required to find out Paul's real identity?

Rhianon Jameson said...

Wow. That's a horrible use of prosecution resources and, it seems, of judicial reasoning.

I'll note in passing that there was a recent U.S. case of with some similarities: two men arrested for doing something dumb - if I recall correctly, it was correcting a grammatical error on a sign on Federal property - and charged with a felony. Fortunately, cooler heads prevailed and the men were told to not do that again. Justice requires having a sense of proportion.

Incidentally, if the CPS believes any electronic communication with those words constitutes a violation, can they start with movies, TV shows, and rap songs, all of which seem to involve an inordinate number of threats?

Charon QC said...

Excellent post - I do not need to say more - other than - I hope you win.

Tony Lloyd said...

There's a fourth dimension. With cuts that are going to come we simply cannot afford police, CPS and courts wasting their time on this sort of self-indulgent nonesense. The "because we can" attitude will have to go.

DeadMeatGF said...

This, as we can all see, is a complete and catastrophic abuse of power by the judge, and a total misuse of the legal system.
However, as having been on the receiving end of family law decisions, which require no proof, simply a judges opinion, and where any and every accusation can be levelled, in court, without any basis in fact and without any consequence even if proven to be a malicious fabrication - I have to say I'm not surprised.

rolo_tamasi said...

I feel like turning up and witnessing what happens at the appeal. Is that a practical thing to do or would it be a waste of time?

catdownunder said...

Yes, best wishes to Paul and those supporting him.

Judi said...

What a horrific catalogue of errors by our justice system for what at the most is a somewhat foolish joke. This man and his family have suffered enough and he deserves not only an apology but a clean record. It seems that the CPS have taken the 'I've started so I'll have to finish' attitude rather than using common sense. Hopefully Doncaster Magistrates will have the intelligence to put this right. Good luck Paul. Judi.

Alice said...

The very best of luck and common sense to Paul and all those supporting him at the TwitterJokeTrial.

I wish there was something I could do to help - to cope with this must be requiring great strength and bravery! I am so glad you picked up on this, and wonder if there are similar cases going on that have missed common sense's radar . . .

Howard Fredrics said...

I wish Paul the very best for his successful appeal. The key factor here is proportionality. Was the criminal prosecution a proportional and the least restrictive response to his exercise of free expression? I don't think so. The reason why is clearly set out in Dehal v DPP [2005]

The Crown must show proportionality by that demonstrating that it is “necessary to bring a prosecution at all”. Dehal v DPP [2005] EWHC 2154 (Admin). Did the prosecution protect society? I would say "no." The prosecution in this case was, therefore plainly unlawful.

What is troubling is that this is not the only case of its kind, albeit employing the Protection from Harassment Act 1997. I was charged and convicted under the act for posting true and objective information in the public interest concerning misconduct by public officials. Fortunately, after a trial, a hearing to consider setting aside the conviction, the ordering by the CPS, with FULL knowledge and approval of the DPP, of a new trial, and a second full trial, a District Judge found 'no case to answer' and that what I'd posted was in the public interest.

Well, duh! But that hasn't change the fact that my career is ruined, that I'm bankrupted from legal fees, my health is ruined, and I have little or no possibility for redress.

Why has this case gone by so quietly?

Andy Pickering said...

Great piece. And good luck with the appeal. The twittersphere will be with you all the way...

Cheers,
Andy

P.S. Slightly disconcerted by comment verification word "cackshol" - wtf???

Tom said...

My friend was recently brought to court under similar circumstances.

He called his father on his father's birthday, and - on getting an answer machine message - left a spur-of-the-moment and rather ill conceived message on his father's answer machine; along the lines of "dad, I've done a stupid thing. I've gone out to sea in a little boat, and lost my oar, and my position is ... (and then makes a raspberry sound with his fingers).

His dad, at first assumes correctly it is a joke, calls my friend back, but doesn't get an answer. (My friend has rather ill-advisedly gone to the gym and left his phone in the house).

Several hours pass, my friend's dad is visited by his sister, who urges him to call the Police, just in case the message was not a joke.
Reluctantly, my friend's father does so.
For the right reasons, the coastguard is called out ... I will cut a long story short; my friend is prosecuted to the full extent of the law by the the Procurator Fiscal (the Scottish equivalent of the CPS). with the full backing and resources of the Police.

There were several charges. My friend is charged with (in my non-legal terms) making a hoax call, calling out both the Coastguard, and Police, and wasting police time.

My friend is initially arrested, summoned to the police station on more than one occasion to give statements, his dad is visited several times by police interviewers who - in his own words - encourage him to use statements such as "this was out of character ...I was alarmed"

18 months, and several thousands pounds worth of taxpayers money later, the case comes to court, and is dismissed by the judge.

It is sadly ironic that my friend received a criminal record. Having been advised by his lawyer to plead guilty, out of sheer frustration and anger (genuinely) he did not show at court.
The case also received some press coverage. The press put their own spin on the story.

What is forgotten in both these cases is that the intention was clearly never real to begin with.

(I know it wasn't, because my friend was actually copying the same 'prankish' voicemail that I'd left him several days before he called his dad).

What's also similar is the fact there seems to be a "prosecute to the full extent of the law" regardless of truth or reason.
In a democratic and "reasonable" society this is simply appalling.

The case of Paul Chambers is important to all of us. The purpose of the law should be to protect society, not alienate from reason.

Harbo said...

What Paul did was offensive, impulsive and stupid.
There is no evidence that it was threatening.
The response is not only excessive, it is scary.
Freedom of speech requires that we speak out to defend even offensive opinions (whilst explaining why they are offensive).
In fact ideas that are offensive may be the most important ones to defend, as the non-offensive ones will have gone through to the keeper.
Thank you and Good Luck to all.

Dominic Sayers said...

I doubt there has been a law passed that wasn't used by the executive branch not for what is was intended to achieve but for how it could be used to underpin their objectives.

The remarkable thing about this case is not the abuse of legislation but that nobody appears to have anything to gain from this prosecution.

It is a reminder for the conspiracy theorists that incompetence may be as credible an explanation for a suspicious set of circumstances as evil intent.

Kuly said...

How could this man's prosecution have possibly been in the public interest? I can't even begin to imagine what he and his partner have been going through.

According to the CPS' criteria then, each and every one of us are potential terrorists and murderers. And all it takes is a few (clearly tounge-in-cheek) words expressing annoyance. Who of us hasn't done that? I bet the CPS, police and judge have themselves fallen foul of this act at some point! These are not the actions of a 21st century democracy, but rather the dreadful German 'Democratic' Republic.

I wish Paul all the best with his appeal, and I hope one judge at least will see sense and end this man's undeserved misery.

Keith said...

Wow. What a silly, silly turn of events and only on the other side of town. It's ridiculous if he doesn't win the appeal I'll blow Doncaster crown court sky high.

Keith said...

* Definitely *joking* there btw*

twaza (@wassabeee on twitter) said...

Thanks very much, for taking this case on and partly restoring my faith in humanity.

The ability of people to use "process" as an excuse for not using common sense and normal human empathy is not confined to the police and justice system. I see it also in the health system, and I suspect it infects all walks of life.

Of course, humans being human have no problem with being inconsistent and not bothering about "process" when it would be an inconvenience, as in #metgate.

SadButMadLad said...

I think it wrong to blame the CPS as an anonymous body as if it had a brain. Rather than saying "the CPS decided" you should be stating "the lawyer in charge of th case at the CPS decided". Or even better "the lawyer, John Smith, at the CPS decided". This is not a decision by an organisation. It's a decision by a human being (or beings) to take the case forward. They should be named and shamed. So, OK, the lawyer(s) involved might get smoe bad publicity, but is it fair that only Paul gets the bad karma. However the lawyers would get some feedback about their handling of the case which would hopefully feed into their decision making in future cases.

Jack of Kent said...

@SadButMadLad

I usually do not name individuals so as to name and shame.

And I think the problem in this case is structural and cultural.

Padav said...

Actually the off the cuff remark by Keith above provides an interesting avenue of valid public dissent, relevant to this case and any other where Section 127 is utilised by the CPS.

What if a million people simultaneously sent messages; via e-mail, twitter, et al, prefaced by reference to the Paul Chambers case, quoting the offending statement and closing with a plea to the authorities, come on and arrest me if you dare?

Those who really felt outraged could print out a copy of the offending remarks sent by themselves and flash mob the nearest Police Station asking to be arrested under Section 127.

Could prove an exercise in coordinated civil disobedience, deliberately timed to coincide with the appeal hearing?

Conor said...

@Karhomme
"Just curious; how much effort was required to find out Paul's real identity?"
Probably not much bearing in mind how much personal information some people are happy to publish on the Internet. Even his name would have been enough here. Checking "Paul Chambers" against the passenger lists for the next week would have identified him.

Simon said...

Its a pity the police and the CPS weren't so flexible in their approach to prosecuting the policeman who assaulted Ian Tomlinson

Conor said...

The six men arrested in connection with the Pope's visit, have been released without charge. Apparently another over-reaction by the police.

Anonymous said...

I have just read the judgement; dear God he sets out a test for intention an then completely ignores it. JoK I can only agree with, this is a disgrace, good luck with the appeal.

Joseph K.

Jill said...

Like many of us, my conversation - on- and off-line - is peppered with quotes/misquotes/catchphrases from comedies. Two of my own favourites are "let's burn him/her" and "I'll murderise them to death". Both, presumably, extremely threatening. I can't remember where either originated, but I use them as funny and slightly camp hyperboles actually to DEFUSE tense situations, not to INFLAME them.

Oh, sigh. Whoever mentioned East Germany above - I fear they are right.

Best wishes to Paul.

Satans Mother said...

The six men arrested for "joking" about attacking the Pope have been released. Significant?
Link -> http://www.bbc.co.uk/news/uk-11360568

barton71 said...

So, what would happen if everyone who supports Mr Chambers, and who appalled at the astonishing waste of public money by the CPS in bring this frivolous case to court, were to tweet the same joke at the same time, on the same day, every week? Could we all expect a visit from PC Plum or would the police, the CPS and politicians realise the stupidity in the legislation?

The Heresiarch said...

"I usually do not name individuals so as to name and shame....And I think the problem in this case is structural and cultural."

Ah, you mean the NUREMBERG defence?

Obviously, people in organisations fall prey to organisational thinking. That is the problem of bureaucracies everywhere. But that does not mean that individuals involved should be absolved from personal responsibility. And a bit more "naming and shaming" of the individuals responsible for bad decisions may just lead to others thinking twice before ticking the box marked "prosecute".

I do think, though, that there is another problem besides the three you have identified, that goes to the heart not just of this but of other cases you have been involved with, and some others that I've written about. It has to do with how CPS guidelines define the concept of public interest, in particular the presumption that in most circumstances, where there is a good chance of a prosecution succeeding, it is in the public interest to prosecute. There's no consideration of proportionality, of cost, of the effect on individual lives of a criminal record, or of what the case would look like if it ended up in the Daily Mail. "Public interest" seems simply to mean "can we get a conviction?", the thought presumably being that it is in the public interest to see the law upheld and infringements punished. So long as this presumption exists, and such a narrow public interest test continues to apply, there will be no end to Paul Chambers-style cases.

The additional test I propose is whether a prosecution would be "an appropriate use of public resources", perhaps coupled with stricter controls on CPS budgets.

John said...

Hello DAG

I fear that there are many, many other cases of prosecutions being perpetrated to fulfil a personal agenda irrespective of the lack of evidence, forcing a guilty plea to a charge which is wholly unrealistic.

In the meantime, from a libertarian perspective, I am endeavouring to work to determine the limits of the Ministry of Defence Police and their incestuous relationship with CPS: feel free to drop me a line.

Ian said...

Fascinating and disturbing case. For the sake of Paul and society as a whole, I hope his appeal is successful.

chris said...

I wonder about this case, whether this is a case of targets and performance indicator problems. We have made an arrest, so we have to have a conviction or our numbers look bad. With the recent number of Terrorism related cases where no evidence existed, whether he was just seen as an easy case to get a positive count for performance statistics.

YourBiggestFan said...

I think Paul Chamber's main offence was not taking The War Against Terror seriously enough...

Thomas More tells us:

"The devil... That proud spirit... Cannot endure to be mocked..."

Orwell notes in his essay The Lion and the Unicorn:

"...The goose-step, for instance, is one of the most horrible sights in the world, far more terrifying than a dive-bomber. It is simply an affirmation of naked power; contained in it, quite consciously and intentionally, is the vision of a boot crashing down on a face. Its ugliness is part of its essence, for what it is saying is ‘Yes, I am ugly, and you daren't laugh at me,’..."

The woeful security-military-judicial complex who's battle-cry is "Don't you know there's a War Against Terror On?", cannot endure to be mocked. Their fight is righteous and their aims are pure and we mustn't laugh at their noble cause or anything related to it.

Tom Evans said...

The more I have learned about the law over the last year, the more I agree this is a complete disgrace.

In his judgment the district judge agrees that there is a requirement for mens rea, although he seems to accept this reluctantly as if it were a nuisance.

He then goes on to 'find' intention, even though the CPS were not arguing it was present and did not present any evidence of it. That's not how it's supposed to work.

Conor Walsh said...

Very very few things annoy me as much as this trial has, Good luck to Paul on Friday can only hope common sense wins out

Bag said...

Nick Cohen has put this case of Paul Chambers' in his recent Observer column. You can sense this one is of a particular kind, as even someone like himself, who must have come across some, well, outrageous episodes in the political and law worlds, finds it staggeringly absurd. He has also followed it up with another piece on his website/Standpoint blog.
His warning at the end of the Observer piece has to be taken seriously by the Labour party. Not to do so will leave them in opposition for a long time.
I'd like to hear that Paul Chambers will be able to have a good weekend.

Nile said...

I trust that the enthusiastic revolutionaries who are advocating a mass retweet of the offending 'joke' have the resources to survive acquiring a criminal record and losing their jobs.

Not all of them will, of course: but I can easily conceive a state in which arbitrary and capricious - and deliberately, knowingly unjust - prosecutions are initiated and pursued to the bitter end against an unlucky few.

Will anybody have the decency to get their wallets out and help their less-fortunate fellow-conspirators with the mortgage and the food bills? Or do a bit of networking to assist them in returning to employment?

Maybe fighting injustice is a more serious business than we realise. At the very least, reflect upon the certainty that you would've dismissed a novel or a TV show that depicted this affair - dismissed it out of hand as the demented ravings of a paranoid bee-in-the-bonnet conspiracy theorist - before you dismiss the possibility that there are consequences of your actions and your careless words today.

Tony Lloyd said...

Bloody hell, Nile. You're making me feel like some Soviet era dissident!

There is a miniscule chance of anything bad happening. And, though a criminal record is bad, it's nothing like a few years in the Gulag. If people can risk their lives for freedom (and others work pro bono etc.) then surely the rest of us can play silly buggers on Friday for it.

Ok, so maybe I'm being a bit over-dramatic. But with a reason. Freedom is not usually lost in one go but incrementally. It's far better that we do our little bit of speaking out now rather than wait until we really are risking serious penalties.

Joe in Australia said...

I can actually see why CPS has taken the position that s 127(1) does not require intent: they contrasted it with s 127(2) which clearly does require intent. The thing I don't see (and I hope it was addressed at trial) is why the message was considered menacing. Surely "menace" is a mental state and you would need evidence that someone actually experienced it.

We do talk loosely about people menacing inanimate objects ("waving his sword, he menaced the picture"), but we really mean that they alarmed someone by threatening to damage the object. The object itself feels no menace; that feeling can only be experienced by an observer. So did anyone testify that they felt alarmed or threatened by Mr Chambers' message?

Pat "Come and Get Me" Collins said...

So, I probably shouldn't have suggested that, as Defender of the Faith, the Queen should have taken the Pope off guard, perhaps with a cup of tea keeping his hands occupied, and run him through with a sword?

Ooops.

Blair said...

Off the point I appreciate, but should we really be so surprised at the thought of "gormless" police officers? Sounds similar to the actions of the two who decided to close half of a major London arterial road during the rush hour because a motor cyclist had scratched a car.....Or the six officers who couldn't summon up enough energy (in over 3 hours) to push a stranded car off the same road - again during the rush hour.

Muppet said...

How does the judge when looking at the actual tweet as evidence, come to the conclusion that this is worth persecuting? It beggars belief. Maybe it's the judge who should be on trial, at least have a competency test.

Indyanhat said...

Good luck with the appeal all concerned. The law frequently shows that it is indeed an ass, let us hope that it has the dangly bits to show it is not always so...

Andrew Sheerin said...

I have a humble suggestion of how we might, collectively, respond:
http://www.terrorbullgames.co.uk/joketrial

You see, Paul is clearly an amateur when it comes to broadcasting threats. He should take a leaf out of Tony Blair's book who just the other week openly issued a threat advocating a military invasion of Iran. This was broadcast to the world by the BBC.

Lifewish said...

Good luck to Paul on Friday!

Harbo: I agree with your comment, except the bit where you say Paul's tweet was offensive and stupid. It wasn't. It was a fairly mild example of exaggeration for humorous effect, on a par with threatening to kill Bill Gates when your computer crashes for the 50th time.

Your mileage may vary, but in my group of friends this would be considered playful banter, not offensive or stupid. In my opinion Paul shouldn't need to apologise for what he said, let alone face prosecution.

Mark Bailey said...

Good luck indeed on Friday. This is one of those occasions when as far as I can see, we have a conspiracy to commit a cock-up...

All the best

Sabine K McNeill said...

Common sense of 'proportion' - that seems to be the name of the game.

Or else: who's going to pay my next fees? Maybe public institutions!

Or is it all about "which side are you on: ethical / liberal or not?"

I've been trying to help all sorts of victims of financial exploitation and legal oppression and keep wondering...

But one case at a time!

Thanks for doing what you're doing!!!

Sabine
http://victims-unite.net

James said...

Setting aside for a moment the criticism of the decision to bring a prosecution in this case (with which I can largely agree), characterising the district judge's judgment at first instance as one which is 'disgraceful' and 'defies credibility' is unwarranted hyperbole.

Regardless of whether you personally agree with the judgment or not, it seems to me that the conclusion reached by the district judge was one that he was entitled to come to. It is not an example of 'judicial stupidity'.

Although it is right to note that you do not say otherwise in your original post, having read other posters' comments, it is worth pointing out that once the case came before the District Judge it was not for him to throw out the case, even if he felt that a prosecution was not in the public interest. See for example the Court of Appeal's response to HHJ Shorrock's recent attempts at judicial activism in the Woolwich Crown Court.

The judge correctly set out in his judgment what his role was: to determine whether the actus reus and mens rea were made out on the evidence of the prosecution. He was not required to balance that exercise against the merits of the decision to prosecute. Indeed, it would have been wrong of him to do so.

His finding in respect of the actus reus does not appear to particularly attract criticism and it probably suffices to say that a threat to blow up an airport is a communication which the judge was entitled to find was menacing. The fact that, prior to the mens rea issues arising, Mr Chambers had pleaded guilty indicates that he and his representatives must have reached the same conclusion.

That then leaves the mens rea. The first point to make is that the judge rightly accepted that the prosecution had to show that there was some intention on Mr Chambers' part. What is important though is that did not mean that the judge had to find that Mr Chambers intended that the message would menace the Robin Hood Airport (or, more accurately, its owners, employees and users). He did not even have to find that it was intended that the message would be received by anyone concerned with the Robin Hood Airport.

Following DPP v Collins the judge had only to find that the communication was 'couched in terms... giving rise to the inference that a risk of [causing menace] must have been recognised by the sender' before he could conclude that the mens rea was made out.

Again, where the communication in question was the threat to blow up an airport it is not outwith the bounds of credibility for the judge to conclude that the risk of menace must have occured to Mr Chambers.

I, of course, did not hear Mr Chambers' evidence in respect of his actual state of mind so I cannot comment on the quality or credibility of it. I can only say that the judge considered it in the course of his judgment and decided to reject it; he was the person best placed to do so.

Was the judgment illiberal? Quite possibly. Will Mr Chambers' appeal be successful? Perhaps. Was the judgment a disgraceful example of judicial stupidity which defies credibility? I say not.

Smoking Hot said...

Damn, only just got back to UK and so can't go to Doncaster Court. l would've gone just for support.

Looking at how the authorities reacted to this shows that an actual terrorist can cause disruption and mayhem just by Twitter.

We've become a paranoid nation that over-reacts to any 'terrorism' threat. l can't remember us behaving like this when the 'troubles' in NI were happening. Our actual securiy is laughable and so you have to accept that there is no credible terrorist threat or all terrorists are completely braindead.

To cause mayhem and disruption all you have to do is make a threat. lt does not matter if it is credible or not as the gov, security services and MSM will do the rest for you.

l wish Paul well today.

fairyhedgehog said...

You've set this out so clearly. Good luck to you today.

Steve Jones said...

@James

Please spare us the sophistry. The tweet was never a menace, it was never intended to be a menace, nobody of any reasonable judgement viewed it as a menace. Indeed we now have testimony that neither the police or the airport authorities considered this a threat at all.

The judgement was a disgrace, it defies and form of common sense of natural justice, and I cannot imagine that any representative jury would have found Paul Chambers guilty. The act he was prosecuted under was clearly never intended for the purpose that it was used.

If we are now to be condemned to a world where every throw-away or ill-considered remark in and electronic communication can be interpreted in the most literal manner without regard to audience, intention or context, then heaven help us. The imposition of a criminal record with ruinous effects on a person's life for an act that caused no damage is disproportionate and means that we are all on the brink of personal disaster unless we rigorously self-censor our communications. This particular act is far from the only one where a form of words could make one liable to the criminal law.

Now I quite appreciate that it's the CPS that have engendered this ridiculous situation, but the judiciary are also there to apply law in a way that reflects justice and the intention of acts of parliament. From reading all the copious coverage, then I cannot but think that the original ruling was perverse. If somebody more legally trained than I then confirms that the original judgement is correct, then I cannot but believe that it is then the judiciary that have got a systemic fault.

redhat said...

In the Netherlands we are now 23 days into a new law, colloquially known as "The Football Law," which makes it a crime to "provide opportunity, means or information," the offence does not require proof of wrongful intention or even for a criminal act to be committed.

When the CPS gets laws they will use them, this is bureaucracy in it's purest form.

Sabine K McNeill said...

@ Steve Jones

Yes, the judiciary has a systemic fault! It seems to be greed, besides their utter ruthlessness and ability to make or interpret the law as they go along.

At least that's my current conclusion, after having heard of HORRENDOUS cases of victims of financial exploitation and legal oppression.

It's "funny" though: people only seem to discover that once they are touched themselves... The general opinion is still belief and trust in "the system"...

More on http://victims-unite.net