The Joke Trial #Twitterjoketrial

No, not mock trial. Not even a trial where Rolf Harris sings “Tie me kangaroo court down”

This is a joke trial. Of the kind that makes a mockery of justice.

I speak, of course, about the Paul Chambers case, about which I and others have written extensively.

Yesterday, Paul’s appeal against his conviction under section 127.1(a) of the Communications Act 2003 was denied on all counts.

I am utterly aghast. Paul, and his nearest and dearest, must be utterly devastated.

Commentary on Twitter has been almost universally of the view that Paul’s treatment, at the hands of the CPS and the courts, is simply disgraceful and utterly baffling.

Take this post from CharonQC, for example. It refers to some of his tweets on the matter:

image

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He makes some useful points, too.

WE MUST DO – AND DESERVE – BETTER THAN THIS….

I won’t be arrested for saying this (I  assume.. although nothing is certain, it would seem) …. I won’t be prosecuted for saying this (ditto) …. I do not practice… so I can’t even be censured… (pretty sure on that one).   We really do need to sort our legal system out if it can bring about such an absurd and unjust result….. even if *The Law* justifies the decision of the judge as framed… if that is the case.. we need better laws..and we do deserve them.

And this, it would appear, is the rub.

Stereotypically inscrutable legal tweeter, @Art_Li makes some good points in the comments of Charon’s post.

He suggests both that the judgement is, tacitly or otherwise, a matter of policy….

What I will say is that behind every law and/or prosecution, there is a public policy decision (read motive). The policy decision in this case MAY BE one to discourage “joke” threats, whether on Twitter or elsewhere IN ORDER TO minimise the “leads” the police and security services have to follow up on a daily basis. We know resources there are not unlimited and already they are following up on dozens if not hundreds of leads every day (that is not a fact, just my assumption).

… and that the high court is unlikely to overturn the decision, because it is based on the strict interpretation of a law, as handed down by the House of Lords (now Supreme Court).

  • The following passages from the House of Lords judgment in the case of DPP v Collins (2006) may be of interest. This case was referred to by Mr Chambers’ legal team as well as the Judge in the recent appeal. The case concerned offensive messages but the wording of S.127(1) includes menacing messages too. (Capitalisation below is mine) :-

    “The very act of sending the message over the public communications network … constitutes the offence even if it was being communicated to someone who the sender KNEW WOULD NOT BE IN ANY WAT OFFENDED or distressed by it”.

    Lord Bingham of Cornhill : “it must be proved that the respondent intended his words to be offensive to those to whom they related or BE AWARE THAT THEY MAY BE TAKEN TO BE SO.” … “It can make no difference to criminal liability whether a message is ever actually received or WHETHER THE PERSONS WHO DO RECEIVE IT ARE OFFENDED BY IT.”

    It appears the Judge was therefore applying and following the Collins precedent.

    Art

  • I’m not a lawyer, and I can’t claim to understand the precise technical implication of the ruling, but it frustrates me greatly that Art thinks this is so fundamentally important. As if the law is an end in itself, before which all must bow down, however absurd it may be.

    Charon does, on the other hand, know a bit about the law…

    If this is taken to extremes – then many disagreeable statements are capable of coming within this definition and then we are truly doomed…..

    There is a place for a common sense approach to be taken into the application of our laws….. and if that can’t be done by the judiciary, then we simply have to get the law changed so that we don’t have these manifestly absurd cases.

    Art’s point seems to be this: The ruling of the Lords is the ruling of the Lords, and that’s that. That there is no latitude for a judge in any lower court to make any different or differentiated ruling.

    Regarding the chances of success in the High Court, Art is, therefore, not optimistic.

    The implication is this: there are only two realistic ways of fixing the situation.

    One is to take the case to the Supreme Court in order that they may over-rule, clarify or supersede, the DPP vs Collins ruling – for only they can do so. A defeat in the High Court looks like an expensive and risky step that will have to be taken in order to undertake the even more expensive, and even more risky journey to the highest court in the land.

    Having come this far, and Paul Chambers might not thank me for saying this, it would be pointless if he now won in the high court, leaving the next hapless twitterer to role the dice time after time in the same way he has had to, in the face of judge after judge who takes an inflexible reading of DPP vs Collins.

    Far better, it seems, would be for the case to end up before the Supreme Court, where the issue of DPP vs Collins could be put to bed.

    The other thread to be taken up is for the statute under which Chambers was prosecuted to be changed, amended, repealed, dumped in the great legal shredder.

    With the farce that is the Government’s so called ‘Your Freedom’ consultation around a grand repeal of so-called bad or illiberal laws, I don’t believe we can in anyway count on this important matter being addressed.

    Which leaves the option of lobbying, campaigning and insisting that this ludicrously framed law is fixed. Making representations to your MP, to the Minister of Justice, to the Prime Minister. To the newspapers, on the internet, on placards and through loudhailers.

    This is evidently the view of @John_Demetriou. Art Li clearly leans towards the view that getting the law changed is the only way forward.

    And yet, that won’t clear Paul Chambers’ name, or give him his life and career back.

    I wish Paul well and hope that this all, in the end, works out for him. It’s been a shit year for him. The state has made him their plaything, and the state doesn’t play nice.

    #######

    Nor will any change in the law come in time to help the Conservative councillor chappie who was arrested yesterday and bailed, accused of the same offence as Chambers, for tweeting that Yasmin Alibhai-Brown should be stoned to death, in response to her on-air assertion that the west has no right to cast moral judgement against the practices of some Islamic countries.

    Delicate, vulnerable Yasmin called the police. She said:

    Alibhai-Brown, who writes columns for the Independent and the London Evening Standard, said last night she regarded his comments as incitement to murder. She told the Guardian: "It’s really upsetting. My teenage daughter is really upset too. It’s really scared us.

    "You just don’t do this. I have a lot of threats on my life. It’s incitement. I’m going to the police – I want them to know that a law’s been broken."

    She added that she regarded Compton’s remarks as racially motivated because he mentioned stoning.

    So, rolled into one, from Yasmin, we have a ludicrous playing of the race card, a bit of ‘nasty Tories’ political point-scoring and great fear, offence and upset – all from some daft tweet, the likes of which must occur en masse on forums, twitter and blogs, in response to inflammatory comments from this controversial talking head.

    Do Mel Phillips, Rod Liddge, Simon Heffer, Peter Hitchens  or even Jeremy Clarkson not attract vituperative and unpleasant critics? Judge Jacqueline Davies, who presided over Paul Chambers’ defeat yesterday has certainly been in receipt of twitter ordure in the last 24 hours.

    And, apparently, like a good little socialist, Yasmin’s first and last response is to run crying to nanny.

    Compton’s arrest may well be the first indication that the Chambers conviction has opened up the floodgates for to police arrest any one for any contentious, angry or humourous tweet at any time, “even if it was being communicated to someone who the sender KNEW WOULD NOT BE IN ANY WAY OFFENDED or distressed by it”"

    Think about it? Get in a political argument on Twitter, and next thing, some offence-seeking lefty will decide that it’s best to rebut your argument by calling the police and accusing you of being a racist/homophobic/offensive menace, even if you are a threat to nothing more than the merit of their argument.

    A free for all and a legal feeding-frenzy could ensue, which would seal the deal on our lack of freedom of expression in the UK.

    Might as well delete all your tweets now, folks. We are truly and genuinely screwed.

    AJ

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    About Al Jahom
    Anti-social malcontent, misanthrope and miserable git.

    5 Responses to The Joke Trial #Twitterjoketrial

    1. Fucking ridiculous, isn’t it? I appreciate what you’ve said, but Paul really does need to take this to the High Court first as he needs every bite he can get at the apple. If that fails and if the Supreme Court fails then there’s the European Court of Appeal. He can win in the High Court. It will come down to mens rea, which was a mere formality in this trial. It can be shown that there is sufficient doubt as to Paul’s state of mind. If the High Court judges are a bit more clued up they will hopefully see that.

    2. Art Li says:

      Below is what I posted earlier on CharonQC as a follow up to my original comments’:

      It seems to me quite clear from the above passages from the (now) Supreme Court ruling in DPP v Collins that there is no need to adduce evidence in court that anyone felt the tweet was menacing. All the prosecution had to prove was that a person in Chambers’ position (re age, experience, education, frequent use of airports blah blah) made that tweet, and he must have been AWARE THAT THE TWEET MAY BE TAKEN TO BE MENACING by someone/anyone who reads it first hand on Twitter or elsewhere.

      There was no dispute that he made the tweet, and I believe the judge (and original district judge) accepted the prosecution argument and made a “finding of fact” that Chambers must have been so aware as above.

      That “imaginary” person as you put it does not have to be of any type of disposition, he may just take the tweet at face value and take it literally. And if that is the case, it can support the conviction.

      Appeal courts are notoriously reluctant to overturn a “finding of fact” below unless it is, amongst other things, perverse; I am not convinced that the judge’s finding was perverse. Therefore I feel Chambers has a battle on his hands.

      I wish him good luck, he will need plenty of it.

      Art

    3. JuliaM says:

      “Might as well delete all your tweets now, folks. We are truly and genuinely screwed.”

      Too easy. Why let them win without a fight? Sod that!

    4. Yonmei says:

      The idea that anyone could have been – or ever felt! – threatened / scared by Paul Chamber’s tweet is frankly ludicrous, something that everyone except the various judges involved seem to have acknowledged themselves.

      I share your hopes that Paul fights this all the way to the Supreme Court and that the Court overturns his conviction. Stephen Fry has repeatedly offered to pay expenses: I think it would be appropriate to ask him to match funds with donations, if Paul wants to fight the case further.

      I wish people would stop comparing Gareth Compton’s tweet to Paul’s. Gareth Compton’s tweet was a disgusting piece of crap. It was a “joke” only if you think stoning women to death is funny, which apparently Compton did. As the target of that crap, Yasmin Alibhai-Brown had a right to complain to the police.

      Let’s be clear: It was not Alibhai-Brown’s responsibility that the police then arrested Compton. That is still the responsibility of the legal system that allows the police to treat a repulsive public “joke” about stoning a woman to death as an arrestable offense, which clearly it is not and should not be.

      (Alibhai-Brown, by the way, is not a Twitter user: her daughter is: she saw the horrible “joke” about her mother being killed in a brutal way and was worried about it, since she knew her mother had previously received death threats. There is no reason to suppose Alibhai-Brown would have known the police could treat a single disgusting “joke” about her as an arrestable offense: no one would normally expect it.)

    5. Chuckles says:

      Al Li,I thought your comments at CharonQC’s blog excellent and thought provoking, but I’m not sure I can agree on your above point.

      Firstly, the question of ‘mens rea’, or the lack thereof.
      Secondly, in the judgement referenced by you, Lord Bingham of Corhill made the point – “it must be proved that the respondent intended his words to be offensive to those to whom they related or BE AWARE THAT THEY MAY BE TAKEN TO BE SO.”

      It seems to me that evidence was led (or certainly gathered/reported) that suggested that there was no intention to offend, and that those at the airport (those to whom the words related) neither found them menacing, no offensive,but merely passed them on to the police since ‘it was their job to do so’?
      No threat intended, none perceived, note, not by the recipients, but by the subject of the message.

      The whole thing sounds very much like one of the ‘supervised games’ referred to by Bruce Charlton here-

      ‘But how can PC intellectuals square this with the demands of the victim groups, and with their own guilty consciences?
      By converting ever-more of life into supervised games.’

      http://charltonteaching.blogspot.com/2010/11/political-correctness-and-life-seen-as.html

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