Saturday, 18 September 2010
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.
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.
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