You may remember the case of Paul Chambers, who I wrote about here in 18th January.
It was reported at the time that Paul had been bailed until 11th February. When that date came and went, having shit to do, I assumed he’d had a ‘no further action’ letter. Not so.
This is important:
He was arrested on suspicion of communicating a bomb hoax after a post on the website about blowing up the airport was reported to police.
But charged with something quite different:
South Yorkshire Police said: “A 26-year-old Doncaster man has been charged with sending by public communications network a message that was grossly offensive, or of an indecent, obscene or menacing character contrary to section 127 of the Communications Act 2003.”
Enter lawyer (spit!) Jack of Kent, who gives this case a bit of scrutiny and senses an injustice in the offing that could have broad and potentially devastating implications for all internet users in the UK – everyone from swear-bloggers and twitter-trolls to green-ink emailers.
I’ve abridged this, but I urge you to read the whole thing.
And so, if there has to be an offence of making bomb hoaxes – a legitimate incursion into the right of free expression – it seems that the 1977 Act strikes the right balance with its onerous requirement on the prosecution before any defendant can incur criminal liability.
Paul Chambers was duly arrested in January by South Yorkshire police on suspicion of communicating a bomb hoax under the 1977 Act; the police confirmed: “[t]he arrest relates to alleged threats about Robin Hood Airport discovered on a social networking website”.
Do note that word “threats” here as it indicates – at this point – the seriousness of the apparent offence, at least in the eyes of the police. The police then added: “[t]he Force take such misuse of these sites seriously and will take robust action to deal with those who choose to use them in such a way as to cause unnecessary alarm and distress to members of the public.”
Of course, no alarm or distress – let alone “unnecessary alarm of distress” – had been caused whatsoever. The silly joke had been reported to the police and the airport by a third party; it would appear that no one who saw the tweet regarded it as serious. The airport later confirmed no inconvenience had been caused, other than in respect of the investigation. Notwithstanding their worthy press statements, South Yorkshire Police were beginning to look very foolish indeed.
Nonetheless, Paul Chambers was placed on bail. A further police statement said:
“There was huge public and media interest in this case. Whilst the investigation and collation of evidence was straightforward, due to the wide-spread interest in the use of Twitter in this way, the case was referred to CPS to make the decision on disposal. Based on this “public interest test” it was not appropriate for police to make this decision.
“The CPS themselves could have decided on a caution, but based on the evidence and the public interest they decided to charge in this case, a decision that the police feel is appropriate.”
The CPS did not decide on a caution; they decided to charge.
Errr … What? Hold on – it’s about to get a whole lot worse – for you, me and all.
And, curiously and importantly, this statement did not mention what Paul Chambers was to be charged with.
The CPS had decided to charge him, but not with the offence which Parliament actually legislated for in the 1977 Act, which would require them showing evidence of Paul Chambers intending others to believe there was a bomb hoax.
Instead the CPS decided to charge him under the little-known – and in many ways worrying – offence under section 127 of the Communications Act 2003. The 1977 Act, with its protection for defendants, was effectively side-stepped.
Okay, so… no problem – we know not to make daft bomb jokes – we have to treat the whole world like the security area of an airport. Ho fucking hum.
But no – it’s much worse than that.
The next police statement said: “[a] 26-year-old Balby man has been charged with sending, by a public communications network, a message that was grossly offensive or of an indecent, obscene or menacing character, contrary to section 127 of the Communications Act 2003.”
The relevant portions of section 127 of the Communications Act 2003.
(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.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
Go on – read that again.
You can be charged for sending a message that is ‘grossly offensive’, ‘obscene or menacing character’ – or critically – “for the purpose of causing annoyance, inconvenience or needless anxiety to another, he ‘sends … a message that he knows to be false’.”
And you can be sent down for six months or get a hefty fine. And we already know it doesn’t take much to be sent down for 6 months, these days.
Back to the eminent Mr Jack.
It can be inferred that Paul Chambers was prosecuted under section 127(1) – for sending a “menacing” message – not section 127(2), in respect of, say, causing annoyance, inconvenience or needless anxiety to another.
Now this is a different offence than for which Paul Chambers was arrested.
This 2003 provision is based on an earlier provision in the 1984 Telecommunications Act, which (in those pre-internet days) was intended to deal with nuisance telephone callers.
However, the broad definition of “public communications network” now means the offence covers the internet as much as a telephone call: and so it covers emails and internet postings of any kind.
Do read the rest of Jack’s treatment of the case. Including case law and an exchange with the CPS. He concludes:
It may well be that there should be legislation criminalising all internet-based messages of grossly offensive or of an indecent, obscene, or menacing character, or sent for the purpose of causing annoyance, inconvenience or needless anxiety to others, even if those messages are never received.
If so, this has clear importance beyond the Twitter “bomb hoax” of Paul Chambers. It raises a fundamental question as to the relationship between the criminal law and the users of the internet. And this question becomes urgent if, as in this case, a fairly broad attitude is taken by the CPS to what constitutes “menace” or one of the other elements of the section 127 offence.
But in the meantime, Paul Chambers has been convicted for an offence for which he was not arrested and for a “menace” he plainly did not intend to make, and nor was taken as such. All this because there is a “public interest” in prosecuting him, even if the relevant offence does not apply.
It seems to me that an injustice is occurring; and, with the CPS’s new attitude to section 127, such injustices are likely to occur again.
Right. Tin-foil hat time.
Consider the possibility that, either before or because of this case, Harriet Harman, having arriving on Twitter, doubtless to howls of loathing, or Jack Straw, has had a word in the ear of Kier Starmer QC. He is head of the CPS and clearly left leaning. Now the likes of KerryMP have a nuclear option, which they’re perfectly vindictive enough to activate.
It’s pretty clear that we’re heading for a dirty election campaign, so I wouldn’t be surprised if one or two of the most effective and/or successfully antagonistic right wing bloggers, commenters and tweeters had a knock on the door one morning, with all that follows – in particular, confiscation of all your computer gear and phones, an arrest under s.127(2) and a bail date just after the election.
Jahomstradamus has spoken.
Chambers was granted unconditional bail until the sentencing hearing at Doncaster Magistrates’ Court on 12 March.
A date for my diary.