Response to FoIA internal review request for costs of Paul Chambers prosecution

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

Today I received a response to my request for internal review of the answer to my FoIA request about the costs of the Paul Chambers prosecution. Here it is:

FREEDOM OF INFORMATION ACT 2000 REQUEST – Internal Review

I refer to Freedom of Information request 2484, the CPS response and your subsequent request for an Internal Review dated 20 October 2010.

Your original request was regarding the costs of the prosecution against Paul Chambers.

Our response to you advised that the case was ongoing and next court of hearing on 11 November.

You were unhappy about the response received and requested an internal review.

At the time of your initial request the information that you requested was not held. I have decided to uphold Ms Kadir’s decision.

However, I can now confirm that the total cost applied for by the prosecution was £2,600. This comprised:

£600 Magistrates Costs (Previously awarded following his conviction)

£620 Crown Court Costs

£720 Counsel’s Preparation Time (9 hours agreed)

£330 Counsel’s Fee Day 1 of the Appeal Hearing

£330 Counsel’s Fee Day 2 of the Appeal Hearing

The CPS does not capture the costs of its staff in the management of case files.

If you are not content with the outcome of this internal review, you have the right to complain directly to the Information Commissioner, who can be contacted at:

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Now. I think this is ludicrous if true, but I'm told by a third party that it may well be. Unlike private sector solicitors, the CPS don't bill time against matters. They should. It doesn't seem like a very good way to account for public money. We already knew about the £2600 claim for costs as this was disclosed during the appeal on sentencing. Next stop is the Information Commissioner I guess, but I'm not expecting much from that quarter.

I'm losing sleep

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

I'm losing sleep over the Twitter Joke Trial case. Or more accurately I'm sleeping at odd times, as with the nap I had after dinner this evening until 11pm. And now I'm up and doing "work" on the case.I do this because I feel I have to do whatever I can. I'm not sure what I can do really. I'm not sure what any of us can do, not even the lawyers. But I do it because an injustice has been done and it needs to be rectified. A man, who I'm 100% certain did not mean any harm, has been made into a criminal through the misapplication of a law. It could have been me and it could have been you. If you don't see this then please don't bother to comment here. I've written lots about this case already and I'm tired of having to explain it from square one. I'm tired, yes.

I hope Paul Chambers decides to fight on, but I will understand and abide by whatever decision he makes. It will be a tough fight. We may be able to shore up this legal sinkhole without the Twitter Joke Trial as an ongoing case. He needs to know that the support will be there, both morally and financially, should he choose to continue. But he also needs to know that it's okay to stop. I saw the man last Thursday and his hair is looking decidedly more grey than when we met in July. He's 27 years old. In five years the criminal record will lapse. All he needs is a quiet life and a job and he'll be fine. I'd like HHJ Jacqueline Davies to know that this case has nothing to do with me personally. I did not know Paul Chambers or "the woman called Crazy Colours" before the unfortunate event. My involvement is voluntary and out of concern. Perhaps I am not an ordinary person after all, because I won't rest until your judgement is held up as a model of judicial insanity. I won't rest, but I will sleep if I can. Starting now, good night.

I guess the joke is on me

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

I had arguments with a few people on the Guardian Comment-Is-Free back in May shortly after Paul Chambers decided to appeal his conviction. I recall one person in particular telling me that Paul would be stupid to appeal his conviction. The decision was right and he would surely lose, he said. I said I'd be willing to bet £1000 that the appeal would succeed. I was that confident. Well, I guess the joke's on me. Now we are facing a very difficult situation indeed. The use of section 127 of the Communications Act 2003 to prosecute Twitterers making offhand remarks has been twice legitimized in court. Judge Jacqueline Davies in denying the appeal stated that Paul's tweet was "menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed." I am indeed alarmed, but not in the way she suggests. What do we do? Where do you draw the line?

I've decided on a bit of a legal thought experiment and I invite anyone to chime in with your views on this. It goes like this:

Suppose I place an update on Twitter saying "I've decided to blow up Heathrow Airport. I'll post a photo as proof once I've done it." And let's say that what I had in mind all along was to take a photo of Heathrow Airport (perhaps even an aerial shot from Google maps) and blow it up onto an oversized printout. Let's suppose I manage to do this and several hours or perhaps even days later I pose in front of my blown up photo and then post this to Twitter in a way that makes it obvious that it is connected to the earlier tweet. Have I caused menace? Is this a suitable application of section 127? It could be argued quite reasonably that I must be aware that this is couched in terms likely to cause menace, particularly with my close following of the Chambers case.

This is of course assuming I didn't get arrested before I had a chance to post my photo. I think it would be quite difficult to talk my way out of it in that case, unless I could prove my intentions by showing a piece of registered mail to myself setting it all out. Even still, does my intention here mitigate my action? I must surely have been aware that someone might feel menaced by my tweet. Would I have committed a crime? If so, would that be just? Thoughts please.

An open letter to judge Jacqueline Davies

Slightly updated version

Judgement now available here: http://jackofkent.blogspot.com/2010/11/twitter-joke-trial-crown-court-judgment.html


12th November 2010

Dear Judge Davies:

I hope this letter finds you. I attended the hearing at Doncaster Crown Court yesterday where you denied the appeal of Paul Chambers against his criminal conviction under section 127 1(a) of the Communications Act 2003. I feel duty bound to inform you that I find not only your judgement but you yourself to be an affront to justice and a disgrace to the bench that you adorn. I do not have the judgement in front of me at this time, but the salient points are still clear in my mind. You have echoed the earlier judgement of the district court. That judgement can perhaps be described as hapless. The defence during that trial was not as robust as in this one and Judge Bennett clearly failed to understand some key points. You do not have his excuse. Your judgement is nothing short of sinister. There are two main points that I must take particular issue with in your illiberal and disgraceful judgement.

First, you make a point of saying that you find the appellant to be “an unimpressive witness.” I am quite certain that this is precisely what you said. I fail to see how a defendant in a criminal trial is required to make any specifically positive impression on a judge or jury when the burden of proof clearly falls to the prosecution. A defendant telling the truth under stress may fail to appear impressive. He may be looking for hidden traps in the questions posed during cross examination and doing his best to be cautious. This is only natural and quite expected. Truth may sometimes be stranger than fiction; however, most of the time it is singularly unimpressive. You have chosen to disregard the sworn testimony of a man who, as you put it, was previously of good character when he appealed to you quite honestly that he had no idea he could or would have been causing menace. You are prepared to do this because you seem unprepared to accept that a reasonable person might not see the menace. I will come to that.

It has been pointed out to you that Mr Chambers’ story has not wavered at any time since he gave his first interview to the police. You appear to accept this but dismiss the interview as self serving. You use the defendant’s above average intelligence and education, indeed his soundness of mind, as a weapon with which to bludgeon him. Your reasoning goes as follows: Mr Chambers has used airports and is aware of the heightened levels of security owing to the state of terrorist threat that we live under; Mr Chambers is an intelligent and well educated man of sound mind (reasonable person) who is a very savvy user of social networking sites; The “tweet” is very clearly menacing; Therefore, Mr Chambers must at the very least have been aware that it could cause menace. Is this how we go about determining mens rea? The actus reus is so clear as to be obvious to anyone? What is the point of requiring a guilty state of mind? It has been pointed out to you that nobody involved in the running of Robin Hood Airport took the “tweet” as a serious threat and that the airport was not in any way disrupted. It has been pointed out to you that the interrogating officer made a note giving his opinion that there was no evidence that the “tweet” was anything more than a jest made for only close friends to see.

It has been pointed out to you that none of Mr Chambers’ 690 timeline followers nor any other user of Twitter (apart from airport manager Duffield, who was duty bound to report it) was moved to take any action or make any communication with Mr Chambers after the “tweet”. You have chosen to disregard all of this evidence and instead to conjure an imaginary elderly couple who have booked a holiday and are due to fly out of the airport. This quite sensitive elderly couple might decide to search for Robin Hood Airport on Twitter and then be confronted by Mr Chambers’ tweet. You manage to convince yourself that this imaginary elderly couple would probably feel menaced. Your justification for taking this approach is that the precedent set by DPP v Collins requires that a message can be menacing without having ever been received. It is menacing as soon as it was sent. We cannot unfortunately ask this elderly couple whether they might have been menaced by such a message as this couple does not exist. But in order to take into account Mr Chambers’ status as a reasonable person when considering possible guilty intent, we must be prepared to accept that any and all reasonable persons would feel menaced. This is clearly not true, and I come to that now.

Second, as has already been alluded to, you assert that the bench is satisfied that the “tweet” made by Mr Chambers is obviously and quite clearly menacing and that any ordinary person would agree. [In fact your exact words were “menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed.” as reported here] How you managed to reach this conclusion is frankly beyond my ability to comprehend. Judge (as an ordinary and quite reasonable person I assure you), I have to tell you that you couldn’t be more wrong. Indeed, this statement is an insult to the hundreds and perhaps thousands of people who have given their time to write about this case and to donate money to the legal fund because they felt morally obligated to. We are talking about people like Graham Linehan, Stephen Fry, David Mitchell, Nick Cohen, Jonathan Ross and many other well known figures. We are talking about ordinary people like myself. Indeed, I take this statement as a personal affront and not lightly. I feel very strongly that it could easily have been me in the dock. Many others have expressed similar sentiments.  I wrote a strongly worded letter of complaint to the Crown Prosecution Service in March and later formed a support group on the networking site Facebook. We currently have several hundred members. 

Although these facts were not presented to you as evidence, you must have been aware of this situation because: We can presume that you are a person of sound mind with some intelligence and education as you are a Crown Court Judge; you almost certainly read the newspapers and/or watch television news programs as it is important for a judge to be well informed; you have had months to look at this case and the way that it has been received by the public; therefore, you must at the very least have been aware that this case has been very controversial. I think you may have even said as much in your judgement. It is likely that much of the support for Mr Chambers arises from the view that his action was not menacing. His lack of awareness of a truly menacing act would not have provoked such a strong reaction. If we accept this premise then there must also be at least some doubt that Mr Chambers is lying when he asserts that he was unaware of any menace. You must be absolutely convinced that the defendant is lying in order to uphold the conviction. This has not been proven to anything near an acceptable standard for criminal liability. Your failure to consider these circumstances causes me to question your impartiality and indeed your fitness for the bench.

From the moment I heard your judgement to deny the half-time submission I had a sneaky suspicion that this would not go the right way. You seemed to have already made your mind up. For most of the day I was shaking and felt physically sick. When you read out your judgement to deny the appeal I could not even look at you, such was my disgust. As I gazed down at the poppy pinned to my shirt I couldn’t help thinking of all the brave men and women who have given their lives fighting in various wars to preserve freedom and democracy. You let them all down on yesterday [Remembrance Day] of all days. You have practically criticized the defendant for having the temerity to bring his case before the appeal court. You have shown no sympathy for the financial ruin that he faces now. You frankly have the imperious attitude of a provincial judge who feels territorial about a case that is being defended by a team based in London. Judge, you have failed to deliver justice in this case. I feel it is not too strong to say that you have brought shame and ridicule on your profession, and you deserve for this single case to define your entire career. As the Chinese proverb translates, may you live in interesting times.

Sincerely,
Matthew Flaherty

Response to FoIA request for costs of Paul Chambers prosecution

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

At the end of yesterday I received from the CPS Information Management Unit a response to a Freedom of Information Act request that I placed a couple weeks ago. This is well inside the deadline of 20 working days. Here is the text of the response:

Tuesday, 19 October 2010

Our ref: 2484

Dear Mr Flaherty

FREEDOM OF INFORMATION ACT 2000 REQUEST

I refer to your Freedom of Information request which was received on 27 September 2010 regarding the cost of the prosecution against Paul Chambers

Section 1 of the Freedom of Information Act creates a statutory right of access to recorded information held by public authorities i.e. the Crown Prosecution Service (CPS). This right is to be informed whether the information requested is held by the public authority or not, and if the information exists, for it to be communicated. A public authority must reply to such a request promptly and in any event, not later than twenty working days after receipt.

I can confirm the case is still an on-going matter and is due to be listed for the part-heard appeal on 11 November 2010; as yet we are unable to confirm the total costs recorded in this case. May I advise that you contact our office once the case has concluded and your request will be considered afresh.

If you are unhappy with the decisions made in relation to your request from the Crown Prosecution Service you may ask for an internal review. You should contact the Information Management Unit (Freedom of Information Appeals), Rose Court, 2 Southwark Bridge, London, SE1 9HS.

If you are not content with the outcome of the internal review, you have the right to complain directly to the Information Commissioner, who can be contacted at:

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Yours sincerely

S Kadir

Information Management Unit

Tel:  020 3357 0899

Fax: 020 3357 0229

E-mail:  FOIUnit@cps.gsi.gov.uk

I will be requesting an internal review today by return. I asked only for the total costs to date in my request and I fully expect that this information should be available. I also believe that the costs are not sensitive information to an ongoing case. The CPS will have 20 working days to conduct a review and respond.

A Brave Heart in the Dragon's Den

This is an account of another silly, throw-away remark made on Twitter that had unintended negative consequences. This seems to be happening more and more as the medium matures. Perhaps the most famous example is the case of Paul Chambers, who was arrested in January and convicted in May of sending a menacing electronic communication, which was nothing more than a joke suggesting an airport bombing. This is the case that moulded me into a free speech fundamentalist and all around civil libertarian.

The latest example to illustrate how Twitter (it seems to be this medium more than any other) is so misunderstood by both its writers and its readers involves Dragon's Den star and self-made multi-millionaire entrepreneur Duncan Bannatyne and a young woman who made a silly joke.

Sharon Gooner (I think that's her real name this is not her real surname) never expected that she would become the focus of Duncan Bannatyne's ire when she tweeted the following: 

Duncan Bannatyne's wife is having an affair. He
bellowed at reporters: "You may take my wife but YOU'LL NEVER TAKE MY MEADEN"

Those who know of the Dragon's Den will be aware that Deborah Meaden is Bannatyne's co-star and fellow tycoon. Those over the age of 20 should also immediately see that this is a pun referencing a famous line from the film Braveheart. A funny joke? That's a matter of opinion. A bad pun? Also a matter of opinion. A put on? Yes, that's perfectly clear. The literal implication is that Bannatyne is simultaneously having an affair with his co-star, but the pun aspect makes it is clear this is delivered as the punchline of a joke. That she did not anticipate how this would be received (even that this would be received) is I think not in dispute. So what happened?

Somehow Duncan Bannatyne got wind of this tweet and he challenged its author, saying "Just so you know. If anyone believes your silly tweet & if it hurts my family I will sue you for as much as I can". This was the first communication from Bannatyne to Gooner. It's not clear whether he was searching for his own name or whether he happened to see a retweet; however, we know he did not receive the tweet directly as he was not a follower of Sharon Gooner and the tweet did not mention his twitter handle. It seems like a very strong initial response, a not very subtle threat of litigation. Further correspondence reveals that Bannatyne's primary concern was that people might believe the first sentence, the setup to the pun. This could have the effect of damaging his wife's reputation and subjecting his young son to needless abuse and torment. Well, I have to say that seems reasonable. Threatening to sue was a massive overreaction though. That was not reasonable, but I suppose he was upset and on the defensive for his family.

I have gone through phases when considering this incident. At first I jumped on the Duncan-bashing bandwagon. He's a bully. He doesn't understand Twitter. People are abusing Gooner, calling her "scum" and "attention seeking". This is like Cat-Bin-Lady outrage. I thought the joke sounded like the sort of thing Jay Leno might crack in a Tonight Show monologue. Perfectly acceptable. Twitter lets anybody be Jay Leno for 15 minutes. Then I began to see that Bannatyne had a point (though his abusive supporters did not). The context of the joke did not seem to make clear that the setup was a false statement. Why would Jay Leno crack a joke like that unless the first statement was true? In that scenario there would be some sort of current event that is then tied to an absurdity, which is the punchline. I consulted with a friend who is a linguistics expert and previously gave an insightful analysis of the #TwitterJokeTrial tweet. He agreed with me. The first statement sounds as though it is a truthful observation. Some other people I spoke to also admitted that they had assumed the first statement was grounded in truth. I didn't think Sharon's tweet amounted to libel, but I thought it was poorly executed and easily misinterpreted. This would not have been her fault as she did not expect any part of her tweet to be taken literally. However, I could see the potential for damage.

Then later in the evening Sharon began to repost some of her earlier punning efforts. I then became aware that there was an extended context that I hadn't previously seen. Here are some examples:

Sade has given up music to open an organic fruit drink bar in town. She is a Smoothy Operator.

Julie & Cal next door have split up. But he did break her white appliances a lot. At least her washing machine will live longer with Cal gone

A man got stuck up a ladder today by a crate of deodrant that refused to budge. Sure. It won't let you down.

A ferry company were so impressed with Lionel Ritchie's new advert they offered him a job. He is now dancing on the Sealink.

My mate tried to steal some of my treasured music magazines. Keep your friends close, but keep your NME's closer.

In each of these examples we clearly see that the setup to the pun is as much a put on as the pun itself. In the wider context of this string of punning, it becomes clearer that the reader is meant to dismiss the remark about Duncan Bannatyne's wife. This fascinates me, because I'd assumed I had the full context previously where I now know that I did not. These things are not always as simple as they seem. This makes me wonder whether Paul Chambers' tweet really could have appeared menacing to some reasonable person, though he clearly did not intend for it to be. How much responsibility should we assign to people who make remarks that are taken out of context? Do we all in fact need to be much more careful about what we say in a public medium with enormous potential for the masking of context? I just don't know. Let me think about it some more...

Why Jack Straw is arguably an illiberal ass

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

Jack Straw: A pompous and arguably illiberal ass

Jack Straw. Jack, Jack, Jack, Jack Straw. What can I say about Jack Straw? My distaste for the man has deepened lately. This article really cheesed me off when I read it: (politics.co.uk | Jack Straw waves goodbye with civil liberty attack).

The article refers to Straw's final keynote speech to the Labour conference as he prepares to make his exit from front line politics. Jack Straw would like you to believe that the party that dubbed itself New Labour and governed for 13 years until May 2010 has a "great legacy on equal rights and public safety." I could talk about the Ian Tomlinson police brutality / wrongful death case and equal treatment under the law, but I won't go there. I could discuss the hardships facing professional and amateur photographers simply going about their business in public, but that seems rather trite in comparison. I could even delve into the legislation that ushered in the suspension of habeus corpus for terror suspects. Key word is "suspects." That's the 28 day pre-charge detention which ministers like Straw repeatedly pushed to extend to 48 and even 90 days. I won't go there. There are so many things I could talk about, but I'll focus on a couple of key points that are of particular relevance to the man himself. First of all, what did he actually say in his farewell speech that's got me so worked up. From the article:

"Our great legacy on equal rights and public safety is at risk," he said.

"The Liberal Democrats have conspired to put the Human Rights Act under review. The Conservatives, meanwhile, are going to cut the use of DNA technology and CCTV, and restrict the ability of the police and local communities to fight the scourge of anti-social behaviour. And who will benefit from this madness?

"There'll be greater freedom for the criminal, less liberty for the law abiding. It's crazy," he added.

It seems to me that Jack Straw really hasn't got a clue when it comes to civil liberties. In England and Wales, legislation allows DNA samples to be taken from anyone arrested on suspicion of involvement in a recordable offence and stored indefinitely in what is known as the National DNA Database, whether or not they are subsequently convicted or even charged. This amounts to invasion of privacy and excessive data collection. CCTV cameras are arguably useful in preventing and fighting crime, but may amount to excessive surveillance. Ironically, CCTV footage was used to convict a police officer in Manchester of assault causing actual bodily harm in a widely publicised case last month. But I digress.

Jack Straw believes that the coalition government will give greater freedom for the criminal. The trouble is that many of these questionable laws introduced by Labour serve to treat the law abiding citizen as though he were a criminal. A good example of this is Paul Chambers. You all know Paul Chambers by now. He is currently in the middle of an appeal to overturn his conviction relating to a Twitter update where he joked about blowing up an airport. At the moment, Paul is a convicted criminal. Frankly, if this type of "criminal" has greater freedom under the coalition then that's fine by me.

Here is Jack Straw in Sepember 2001 talking about the new Regulation of Investigatory Powers Act (RIPA) when he was Home Secretary. Please read the full article from page 1. It is quite interesting. Part III of RIPA makes it a crime to fail to turn over encryption keys and passphrases or otherwise allow law enforcement to decrypt target data within a specified time limit. The offence carries a sentence of up to two years imprisonment, and up to five years imprisonment in an investigation concerning national security. This legislation has been widely panned by critics as an assault on liberty, as it overrides the basic right to silence that all suspected criminals are afforded. According to Jack and taken from the aforementioned article:

"It was government trying to put in place increased powers so that we could preserve and sustain our democracy against this new kind of threat," he said in a Radio 4 interview.

"We needed to take powers so that we could de-encrypt commercially encrypted e-mails and other communications. Why? Because we knew that terrorists were going to use this."

Well, that's really no excuse for overriding the right to silence. On page 2 of that article, we read about how CTC officers suggest to a supect during an interrogation that failure to comply with RIPA III would "lead to suspicion he was a terrorist or paedophile."

"There could be child pornography, there could be bomb-making recipes," said one detective.

"Unless you tell us we're never gonna know... What is anybody gonna think?"

Whatever anybody's gonna think is irrelevant. This is not Stalin's Soviet Union. There is a presumption of innocence in our justice system. There are many reasons a person may wish to keep data on a hard drive encrypted. Some teenagers broke into my house a few months ago and stole my laptop, among other things. Had I encrypted my files I wouldn't have to worry about personal information falling into the wrong hands. I wouldn't have to worry so much about indentity theft, for example. This is only one of a number of non-sinister reasons to encrypt data. Others include the protection of trade secrets or intellectual property and the hiding of potentially embarrassing but otherwise legal material.

Basically the physical parallel of RIPA III is that if I am suspected of storing information relevant to my criminal investigation in an impenatrable safe, I must hand over the combination or face a jail sentence. What if I've lost the combination? The obvious comeback against RIPA III is to claim to have either lost the encryption keys or forgotten the passphrases. I have personally lost two PGP private keys and thus rendered the encrypted data useless. I doubt I am alone. Would the police believe a suspect who made such a claim? Probably not. Where does that leave you as a suspect in such a case? Answer me that, Mr Straw. Then feel free to bugger off from public life.

Unfortunately I think the true legacy of Jack Straw and his Blairite buddies is best summarised by Tony Blair himself in his memoirs. Of all the business of Blair's government, the one thing that he regrets the most is... what do you think? The illegal invasion of Iraq? Nope. Draconian terror legislation? Try again. The Freedom of Information Act? Bingo.

FOI - How much taxpayer money has the CPS spent in prosecuting Paul Chambers?

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

Like many, I'm personally disgusted with the sheer waste of time, money and resources being spent by a public body (the Crown Prosecution Service) on the prosecution of a blameless individual. How much money is it? I'd like to know. Therefore, I have made a request under the Freedom of Information Act to the South Yorkshire office of the CPS for disclosure of all the information related to the costs of the prosecution. I've directed my request for the attention of Roger Tricklebank, a Senior Crown Prosecutor with whom I've had communications in the past, and copied Naheed Hussain, the Chief Crown Prosecutor for that region. I believe that I worded my request clearly and properly, and therefore we should have an answer within 20 working days unless the CPS require more time. Though it's hard to imagine how they would require more time.

Guest Post - Mark Phillips explains how Paul's #TwitterJokeTrial tweet was very clearly a joke.

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

I had an email today from a very bright guy I've previously had some dealings with about the Paul Chambers case. Mark Phillips is a linguistics expert who became intrigued by the implications of this case and made numerous comments under articles in The Guardian's online Comment-Is-Free section back in May using the screen name 'justasillyjoke'. It is Mark who deserves the credit for formulating the line of thinking that suggests Paul was frustrated by a situation beyond his control and made an exaggerated remark assuming powers that he does not have in order to compensate for his feelings of lack of control. A very astute observation, I'm sure you'll agree. Mark was trying to post a comment to my previous entry but ran into some problems. With his permission, I am publishing what Mark had wanted to say:

This tweet was a joke. Not only was it a joke, it was very clearly a joke. Is a joke ‘menacing?’ Maybe, taken out of context. The point is, the CPS is trying to convey Paul as being knowingly ‘threatening, menacing’ etc. But, Paul is a joker, and he’s not pretending or even trying to be anything else.

Here is a linguistic breakdown of the joke. It is in ‘cartoon’ style. It builds on an exaggerated bluff, with the basic force of the joke being a stooge, the device being a bluff, and the special force of the joke being an ‘irony’. I’ll explain everything below. Enough to say, the bigger the bluff, the bigger the irony, and the bigger the joke! That is the linguistic recipe.

There are four very visible cartoon elements in the joke:

First, 'Crap!' This is derived historically from the interjection 'Holy Crap!', meaning unbelievable. As an interjection, it has been used extensively as an ‘entry’ into jokes. Think of ‘Wow!’, or ‘D’ya know what…?’, ‘You’ll never believe this…’, or more recently ‘I don’t believe it…’ (One Foot in the Grave). But it is perhaps best remembered in its cartoon form in Robin’s ‘Holy smoke!’ catchphrase from Batman and Robin. This 'unbelievable' meaning sets up the whole joke. After all, it’s not a joke if you believe it! The interjection is therefore the first ‘marker’ that it is a joke.

Second, the jokes main ‘device’ is the weapon bluff, the ‘banana passed off as a gun’. In Paul’s case, it was some imaginary TNT, one might assume. This is hugely important, because it sets up the ‘stooge’ of the joke. The stooge has been somehow duped into believing the banana can pass for a real weapon (maybe they believe they can hypnotise people or some such dupe). Their ‘stupidity’ is therefore the essence of the joke; they cannot see that they appear ridiculous waving around a banana.

Third, the bank robber takes his bluff weapon (the banana) and threatens to 'blow everyone's brains out' unless he 'gets the dough'. The exaggerated toughness (‘get your shit together’) gives the joke extra force, because it sets the stooge up further as a ‘fake’, as a weak character.

Fourth, 'Sky high' is what we might call ‘the hyperbolic flourish’; it serves two functions, it ends the joke with the required flourish, i.e., a punch line, and it reinforces the ‘cartoonish’ nature of the joke, just in case you missed it (pay attention CPS!).

The irony behind the joke is simply that although Paul sets himself up as the stooge, he knows that everyone knows that he knows the ‘banana is not a gun’. He happily sacrifices any appearance of intelligence (tweeting a bomb threat!), in order to set himself up as the stooge for his own joke.

Of course, language doesn’t happen in a vacuum. All communication is ‘primed’, in the way that mention of the word ‘dog’ will invoke ‘cat’. It’s therefore correct to mention that ‘the times in which we live’ create some of the context here: travelling by plan[sic] brings up thoughts of terrorism, as does mention of Northern Ireland. No doubt, if Paul had been writing to a Thai girlfriend, he might have plumbed for a good joke about riding a Tsunami wave, if he was brave. You see, good comedy does require bravery, because it skirts the borders of acceptability and social embarrassment. More than that, it reveals our tensions about things, and by so doing, helps to alleviate them somewhat. Hence, all the jokes about marriage, about our boss, about travelling, about sex, and about terrorists etc.

In fact, if we didn’t live in a world where we are more afraid of terrorists than ever, there probably wouldn’t have been much material there for Paul to joke about.

How the CPS managed to score an 'own goal' in the Paul Chambers appeal

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

UPDATE: Please read this followup guest post where the semantics of Paul's tweet are deconstructed by a lingustics expert. Also it is incumbent upon me to reveal that two inaccuracies have been pointed out. @crazycolours has informed me that the related tweets mentioned below were not direct messages but replies in the public timeline. This was something that the prosecution was confused about. No surprise there. This information does not alter my argument. I've also been informed that the prison inmate example offered by Caroline Wiggin was in response to a question from the judge and was not pre-prepared. Original entry below:

Right. If you look at the archives of this blog you will see that I don't write very often. There are large gaps between periods of modest activity. In all honesty, I find it a bit of a chore. Writing is not something that I've ever been accustomed to and life puts up its typical array of barriers. The result is that I tend only to write when something really pushes my buttons. The case of Robin Hood Airport v Paul J Chambers of Balby, Doncaster has never failed to push my buttons.

I won't rehash my history of involvement with this case, as earlier entries set that out fairly comprehensively. You might wish to read my first three entries from the month of May for a start. I'm writing this new post because Paul's appeal was heard and then adjourned yesterday in Doncaster Crown Court and because the prosecution has, in my opinion, not only failed to strenghten its case since May but has offered evidence that actually weakens it to a never before seen level of farce. This is impressive. I would not have believed it possible. The trophy for "Most Ridiculously Argued Prosecution in a Crown Court" goes to Ms Caroline Wiggin of the South Yorkshire Crown Prosecution Service for this astonishing argument (from an article published in The Guardian today):

Caroline Wiggin, for the prosecution, said Chambers had earlier sent direct messages to the woman in Northern Ireland as it appeared possible that the airport might close. In one he wrote: “I was thinking if it does I have decided to resort to terrorism.” She argued that the context provided by such messages strengthened the case that Chambers intended to cause menace. “If a man in prison were to send a message to his wife that he was going to come and beat her up, the court might consider that were menacing, albeit the man himself may have difficulty in putting it into effect,” she said.

The context strengthens the case. What an interesting supposition! It's honestly hard for me to read that and keep a straight face. Is she really that deluded? What context is she imagining here? It might be the context that the CPS conjured out of thin air and District Judge Jonathan Bennett failed to see through when he offered his ridiculous judgement back in May. The context of "the times in which we live" and its association with the perpetual threat of airport terrorism. It is certainly not the context in which Paul's tweet or any of the related direct (private) messages were delivered. Before I talk about the weaknesses of the above argument, let's look at the REAL context, shall we? It deserves its own heading.

The Real Context

A young man in England has booked a flight in January to Northern Ireland to spend time with a young woman that he has previously met once or twice (not on Twitter by the way. They were personally introduced in London by Paul's best mate). The man likes this woman very much and thinks it might actually be love. The feelings are apparently mutual. This is a very good thing. Unfortunately there has been some snow fall that has resulted in the temporary closure of the local airport from which the flight is due to depart. When I think about what scant amount of snow fall can bring an entire British city to its knees, I feel the urge to punch somebody. It therefore does not surprise me that the man could be moved in a fit of pique to write the now legendary Twitter update "Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!"

The context is that here is a man who feels frustrated with the fragility of his plans and has been rendered powerless. He therefore creates a fantasy in which he has powers not actually available to him in order to compensate for this lack of control. The powers are not available to the man because the man is not in any way capable of blowing up an airport. He has neither the means nor the meanness of character required. How does one actually blow an airport "sky high?" To begin with, how high is the sky? 37,000 feet perhaps? What sort of explosives would be required to achieve this incredible feat? Already, the notion of any intention to cause menace is taking on the stale aroma of farce. The continuation of the context is that the frustrated man, who has a particular sense of humour, decides to vent his frustration with the tweet that we are now all familiar with. The tweet is a form of publishing not unlike this web log, or blog. The act of using a service such as Twitter is known as 'microblogging.'

The audience is often quite limited, unless the author is some famous and prolific Twitterer such as Stephen Fry. At the time, Paul (I've grown tired of referring to him as "the man") had a bit less than 700 followers of his timeline. Most if not all of these were people who understood his brand of humour and would have gotten the true meaning of the tweet. It was not a literal expression of any intention whatsoever. I knew that the moment I first read it. Anyone who cannot see this is not viewing the message in its true context. One person in particular who did not grasp the context is Sean Duffield, the Robin Hood Airport duty manager who, for reasons best known to himself, was at home while not on duty and using Twitter's search facility to look for occurrences of the phrase "Robin Hood Airport." It was purely by coincidence that days after it was sent he came across Paul's tweet. One thing led to another and now here we are.

The Bullshit CPS Imaginary Context

The CPS like to talk about the "times in which we live," and judge Jonathan Bennett has lapped this up. But the times in which we live can have no bearing on this or any other case in terms of whether the CPS decide that public interest is served by a prosecution. Are not all recent cases considered by the CPS in the context of the times in which we live? Assuming this context when making decisions is very dangerous. Anything becomes possible. The one hypothetical act of terrorism which might not have been prevented should this tweet be ignored is enough to demand a criminal prosecution. This is, quite frankly, bullshit and so is the unfortunate argument offered by Crown Prosecutor Wiggin. If anything, the established fact that Paul and his girlfriend were having a private conversation prior to his tweet where hypothetical acts of terrorism were discussed strengthens the defence. This shows that the tweet continues a previous train of thought. Indeed, if you read this Jack-of-Kent guest blog post by the lovely @crazycolours you can see mentions of this. Please do read this poignant article. Poor Sarah has related the human aspect of this story better than anyone else can. In it we see that when Paul was failing to return her messages while he was being questioned at a police station, she left him an answerphone message jokingly threatening to "hijack a plane." They had after all been joking about terrorism earlier in the week. She is after all a Nothern Irish woman who grew up in a place where domestic terrorism has long been a sad fact of life. He was after all flying to Northern Ireland to see her. It really is that simple. Thus completes the picture of the real context.

The comparison of Paul's tweet to that of a prison inmate sending a communication threatening to beat his wife would be hilarious if it weren't so ridiculous. On the surface, such a communication to the prisoner's wife would indeed be menacing not only to the wife but also to anyone else, despite that the inmate did not have the power to carry it out. However, it might not be a literal threat. It might on the other hand be some sort of inside joke. The context needs to be examined. Paul's communication to Sarah was not menacing because she knew he was not serious. It's nobody else's business to make that determination because the message was private. The most basic understanding of messaging context still eludes the hapless CPS.

What Now?

Now the defence team have submitted an application for the case to be struck out on the basis that the prosecution has failed to make a case. This submission is being considered and the trial is expected to reconvene some time in November. Other bits of evidence have also come to light which tend to work in favour of the defence. I see no need to involve those in this discussion. In my view the one mistake I've outlined here ought to be enough to dismantle the prosecution. There has been no other new evidence to add strength to the Crown's case. If the CPS truly believe that the new evidence they've presented is helpful to them, then they are simply deluded. I'll go one further and call them incompetent.

My 2 pence about the ethics of Raoul Moat reporting and lionizing

Many other bloggers have written great pieces about this. I wanted to add my own thoughts to the ever growing pile. David Cameron received a suggestion from conservative MP Chris Heaton-Harris that he contact the social networking site Facebook to ask to have a Raoul Moat fan page taken down. The suggestion came during PM's question time this past week. The Prime Minister apeared to think that this might be a good idea, suggesting that his right honourable friend was making "a very good point." Cameron went on to say "As far as I can see, it is absolutely clear that Raoul Moat was a callous murderer - full stop, end of story - and I cannot understand any wave, however small, of public sympathy for this man. There should be sympathy for his victims, and for the havoc he wreaked in that community; there should be no sympathy for him." David Cameron later ordered Downing Street officials to lodge a formal complaint with the site. The page has since been made private by its creator.

I agree with Cameron that sympathy should be shown for the killer's victims in preference to the killer himself. This begs the question, who are the killer's victims? Do you know? I didn't before today when I searched "Raoul Moat victims". Why is that? I believe the answer lies in the slant that the mainstream media have given to this story. The 24 hour news networks and tabloids in particular have been guilty of portraying Moat as some sort of anti-hero and have devoted far too much screen time and print space to the killer and the hunt to find him. Martin Robbins and Johann Hari have both written excellent pieces about the role of the media in murder stories such as this one. See http://www.mjrobbins.net/?p=10439 and http://www.independent.co.uk/opinion/commentators/johann-hari/johann-hari-did-the-media-help-to-pull-the-trigger-2020927.html respectively.

With such obsessive reporting of the killer's history and psychological profile, is there any wonder that the victims are all but forgotten? In my opinion, David Cameron should direct his anger and comtempt at the mainstream media for its irresponsible overexposure of a psychotic killer, rather than the backlash it has created. To condemn members of the public (who are after all voters) for sharing their thoughts, no matter how unpalatable, and to seek to take down the public forum that gives them their voice, is to overlook the significance of such public opinion. It serves to warn us that something has gone horribly wrong. In other words, it is a sympton rather than a cause for concern. That some 30,000 people would choose to idolize a killer of recent history ought to fill us with foreboding. But rather than wallpaper over the issue, it is the duty of a healthy democracy to ask the simple but difficult question "why?" This is a question that the Prime Minster has dismissed out of hand. Taking down that Facebook group would mean avoiding the question and labelling the 30,000 as morbid fantasists who exist outside the boundaries of normal society. But in searching for the answer to that question we might find that these folks are not so out of the ordinary. After all, they mostly have five senses and two of these have been presented with very disturbing stimuli from many news outlets. And the victims are all but forgotten.

I agree with Robbins and Hari that the media ought to look inward and ask themselves some serious questions about the direct effect they have had on this story and many others. Is it ethical and in the public interest to present such a narrow view of the case but fill that view with such mind achingly mundane minutiae? I don't think so. The media played a role in and has a lot to answer for the creation of the Facebook fan page. I do not doubt this. But the fan page is useful to our democracy. Parliament should note that there is much in the way of anti-police sentiment expressed in this forum. The extreme views do not negate the fact that there are many good reasons for the public to be upset with the country's police force and its tendency to ride roughshod over our civil liberties. David Cameron seems to have missed a golden opportunity here to tie this public opinion into a dialogue about the sort of policing the citizenry would like to have. Don't shoot the messengers, Dave. These are real people with valid opinions and actual votes. It is of course wrong to advocate violence against police or indeed anyone, but the feelings stem from actual problems that need to be addressed. And if you want to understand why anyone might feel like putting Raoul Moat on a pedestal instead of feeling sorry for his victims, then try Googling the killer's name and seeing what small portion of the results is in any way concerned with the victims.

By the way, here are the victims. Chris Brown was a 29 year old karate instructor who had been dating Samantha Stobbart the 22 year old ex-girlfriend of the gunman. The former was killed and the latter badly injured on the 3rd of July. Police Constable David Rathbone, 42, was also seriously injured when he was blasted in the face by Moat in the ensuing hunt. He will likely lose his sight. Search for Rathbone's name and you'll see that the first page of results has nothing to do with the Raoul Moat story if even the man himself. The two surviving victims are now evidently represented by PR guru Max Clifford, so it's likely we'll be hearing more about them in the days to come. I feel very sorry for the victims, but I can't help feeling at least a shred of sympathy for the killer as well. He was clearly a very disturbed and desperately unhappy man. The media ought not to have turned him into a legend. That sends all sorts of bad signals. I think Sky News and their contemporaries need to have a good hard think about what they do and why. Sadly, I don't think anything will change until it's more than ratings making the decisions.

Karaoke Circus and the Twitter-stalker phenomenon

Last night I went out to London and caught Ward and White's Karaoke Circus. It was the second time I've been and was once again a very fun night. The format of Karaoke Circus is such that local luminaries of the comedy scene are invited to perform a karaoke tune of their choosing in front of a very good live backing band. Audience members are also invited upon entry to put their names down on one from a list of songs for the chance to perform it in front of the band. It is a judged competition with the winning audience member awarded a prize. Several of my twitter pals regularly attend this event and it's a good tweet up. Last night I had the pleasure of a nice chat with comedy actor Tony Gardner (@tonygardner) and even a hug from the lovely Emma Kennedy (@EmmaK67). These are both people in the entertainment industry whom I follow on twitter and have had some conversations with. They do not follow my timeline, but they are nice and approachable people. It is very tempting when we have this type of contact with people and then meet them in person to imagine that we are friends. I am using the royal "we" here. We are not friends. What we are in fact is stalkers. It's the phenomenon of twitter that does this to us. This is not meant in a disparaging sense, though the meaning I have in mind has not yet made it into the Oxford English Dictionary. We follow the timelines of some of our favourite people who have no idea who we are. We do this because we are fascinated by their lives and enjoy glimpsing the more spontaneous elements of their personalities. Sometimes we reply and if we're lucky they chat back. We often know where they've been, what they're doing now and what they're up to next week. We are stalkers.

Yes, we are stalkers but that's okay. We are harmless. Well, I am anyway. We are not friends though and should not harbour any illusions. We should bear in mind that some stalkers are not harmless. I guess what I'm getting at with this piece is that it's best not to ruin it. It's nice hanging out on twitter with actors and musicians and other people I admire from a distance, especially when they appear to take some small notice of me. If there's an opportunity to introduce myself in person I won't hesitate to do it if the situation seems appropriate. I know that some people really like when this happens. I wouldn't do this when faced with someone who is very famous unless I felt I had something to say that this person would find particularly interesting. I know who I am. I do well to remember that just because Michael McKean (@MJMcKean) once retweeted me and David Mitchell (@RealDMitchell) liked something I had to say once and replied, this does not mean I'm famous. And why would I want to be famous anyway? I'm happy with my nearly 200 followers. I doubt I'll ever have much more than that. If you like to go fishing for entertainment people to rub shoulders with though, Karaoke Circus is as good a place as any. You might have the opportunity, as I did, to say to Chris Addison (@mrchrisaddison) "Hey Chris, nice job on that Pet Shop Boys song" while he's pissing into a metal trough. Or you could say to Kevin Eldon (twitter account unknown), "I had no idea you could sing so well" while he's desperately trying to step around you. Just remember who you are. Statistically the following are very safe bets. You are never going to play on Later with Jools Holland. You are never going to star in your own sitcom. You are never going to get Ben Stiller (@RedHourBen) to follow you. And remember that there are many hundreds or thousands (sometimes millions) who would also like to be their "friend".

Delivery of new DELL laptop, thanks for the incredibly short notice!

I got this email from DELL yesterday.

Dear Matt Flaherty,

Your Dell Order is scheduled to arrive between 08:00 and 18:00 on the 18/05/2010. Please arrange for someone to be there throughout this time - as we cannot be more specific about the time of delivery.

As your order is already on its way we regret it's too late to change the following details:

1.      delivery date
2.      delivery address
3.      order details

You can track your package, via the Syncreon website, simply by pasting this link into your internet browser: http://www.walshwestern.com/scripts/trackntrace.htm

Your invoice will arrive separately within the next two weeks or alternatively account holders with Dell may access the following site to download a copy of your invoice. https://myfinancials.dell.com/landing.aspx?c=uk&l=en

Order Number - [withheld] Customer Number - [withheld].

This is an automated email that cannot accept replies.

Thanks,
Dell.

Yeah, thanks DELL. Thanks for the incredibly short notice and for letting me know that it's now too late to change delivery. This is the first message I've received from DELL since I placed the order about a week ago. I always thought they had good customer service. Well now I'm stuck working from home all day because my wife is teaching and somebody needs to be here. I had to cancel a meeting that was scheduled today. All I can say is it had better be worth it.

5 more reasons why the Paul Chambers decision was wrong

A few days ago I wrote about 5 reasons why I think the judge got it wrong in the Paul Chambers case, R v Paul Chambers, which was heard and decided on the 10th of May. Then later I published the extent of my communications with the Crown Prosecution Service that began on the 5th of March with a letter of complaint. Since the guilty verdict in this case was announced there has been a public outpouring of support that has included notable figures in the entertainment industry such as Stephen Fry and Graham Linehan. A fund has been setup to receive donations to help with Paul's fine and his appeal. I urge you to give what you can if you care about this. There will be costs despite that there are now some excellent communications lawyers working pro-bono on the appeal. I have been commenting in the Guardian "Comment is Free" section and exchanging ideas with some very bright people who have provided many insightful ideas that could help with the defence. I'll give credit where due.

Not all of the responses to this story have been positive. Some people have indignantly asserted that the defendant got what was coming to him, ought to have known better, got off lightly, etc. If you are one of these people I hope you will take the time to read my post about the 5 reasons and then read this one. This post sets out reasons 6-10 why I think the judge made a mistake. Disclaimer: I am not a lawyer. I can only take the information that is available to me and analyze it with reason and logic.

6. Section 127.1(a) of the Communications Act 2003 might not even apply because neither Twitter nor the Internet are public systems.
   Yes, your heard me. A precedent that has been referenced by the defence and considered by the judge is the case of DPP v Collins which was decided in the House of Lords in 2006. That case saw the same charge applied to a respondent for directing allegedly grossly offensive telephone calls and voice mail messages to the office of his local MP. In the conclusions under paragraph 7 is stated:
   
   

   The purpose of the legislation which culminates in section 127(1)(a) was to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society. A letter dropped through the letterbox may be grossly offensive, obscene, indecent or menacing, and may well be covered by section 1 of the 1988 [Malicious Communications] Act, but it does not fall within the legislation now under consideration.

   Although the telephone network had been privatised before the 2003 law was enacted, it seems that its historical role was still a factor here. When it was run by the British Post Office it was provided and funded by the public and for the benefit of the public. The internet, on the other hand, grew up as a defence project in the United States. ARPANET is what it was called back in the 1960s-70s. In 1985 the US National Science Foundation commissioned the construction of NSFNET to connect university science departments. This spawned worldwide participation in the development of new networking technologies. The network was first opened to commercial interests in 1988. In the 1990s all the TCP/IP networks around the world were interconnected and commercialized to form what we know today as the global Internet. ISPs provide service to their customers for profit. Twitter, an application service running on the internet, is not paid for by public funds. It is a private network that requires membership for participation but not for reading tweets on its timeline. I don't know how they make their money, but I'm pretty sure I'm not paying for it with taxes :)
7. Section 127.1(a) of the Communications Act 2003 might not even apply because Twitter communication is not (necessarily) in real time.
   In his excellent law blog Andrew Sharpe, a partner at Charles Russell LLP, suggests that the original intent of the law has been corrupted through various reenactments. He traces its genealogy back to a 1935 act of Parliament called the Post Office (Amendment) Act, specifically section 10(2). By way of comparision, here is that original statute followed by today's version:
   
   

   Section 10(2) of the Post Office (Amendment) Act states:
   

   If any person-
   (a)  sends any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character; or
   (b)  sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience, or needless anxiety to any other person; or
   (c)  persistently makes telephone calls without reasonable cause and for any such purposes as aforesaid;
   he shall be liable upon summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment.

   section 127 of the Communications Act 2003 states:
   
   Improper use of public electronic communications network

   (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.

   Sharpe argues as follows:
   
   

   Given that in 1935 there were basically only two public communications systems, one a real-time system (telephone), the other not (telegraph), there is the basis for an argument that the original intent of section 10(2)(a) has been corrupted during the number of re-enactments of this provision.  It can be argued, in a Sweet v Parsley most favourable interpretation sense, that the mischief Parliament intended to address in section 10(2)(a) was unlawful messages sent by direct, real-time communications.  If non-real-time communications had been intended to be included, then the section would have referred to telephone and telegraph, as it does in section 10(2)(b).  Indirect communications were not within the scope of this provision at all. To cite a 1935 analogy to Twitter, would Parliament debating the 1935 Bill have accepted that the posting of a telegram on a public house notice board would be within the scope of clause 10(2)(a).  We do not think so.

   Nor do I. It seems clear at least to my non-legal mind that the original law respects that immediate communications have much more power to shock and offend because it is so difficult for the recipient to take a step back and gain a different perspective. What is threatening now, in real time is unpredictable and frightening. A telegram or a message left on an answer phone may be threatening and offensive but can be received with much more objectivity. It can also be shared with others and mitigated in many other ways. It can also be completely disregarded.
   
   When I was about ten years old I received a crank phone call at home. I answered the phone to a male voice who eventually began to make sexually explicit remarks. After about a minute I hung up the phone. Everything about that phone call remains crystal clear in my memory even though I never mentioned it to anyone before I told my wife about it yesterday. I cannot even repeat it in print after nearly three decades, that's how strong was the shame I felt. It was an immediate violation which I could not view as an outside observer. If I had been living in Britain, this is precisely the type of mischief that this law was intending to criminalize. An answer phone message would not have had the same immediacy even if it had been aimed specifically at me. The phone call was not aimed at me as the caller was unfamiliar with me and may not have even realized that he was speaking to a child. But it WAS me who was engaged with the caller; therefore, it was highly personal and a direct violation.
8. The judge was convinced beyond a shadow of a doubt that the tweet was menacing in its context, but he looked at the wrong context.
   In his summation, District Judge Bennett writes:
   
   

   The context is we live in a society where there are huge security concerns particularly in relation to airports and air travel. I do not need to repeat the very real incidents there have been in the UK in recent years let alone worldwide. With that background I can have no doubt that the remark posted by the defendant is menacing.

   The judge is wrong. The context is that the message was delivered in a conversational style to a known group of people who follow the timeline. The defendant was not imagining that his tweet would be called up in a search and viewed by a person who does not follow his tweets. The context is that the defendant was frustrated by a situation beyond his control and made an exaggerated remark assuming powers that he does not have in order to compensate for his feelings of lack of control. We have all done similar things. The judge ought to have looked at the context in which the message was delivered and the psychology around it rather than simply "the times in which we live". This line of thinking is mostly to the credit of Mark Phillips, a linguistics expert with whom I've been speaking.
9. The judge was convinced that Chambers was at the very least aware that his tweet was menacing, but he didn't bother to ask another Twitter user.
   This may be a failure of the defence, as not a single witness was called apart from the defendant himself. In discussing intent, the judge says:
   
   

   The defendant has maintained in lengthy interviews and also in giving evidence before me today that he had no such intention. He points out the slim likelihood that anyone just on the “Twitter” site would ever see his posting.
   
   However, I do not have to accept what the defendant tells me about his state of mind at face value. I also note the defendant is an experienced, and clearly very heavy user, of “Twitter”. Furthermore he has travelled by air, although he had not used Robin Hood airport previously. I found strange his evidence in relation to airport threats not seeming to relate to him and appearing to be in another world.

   I wish I had been called to testify. I could have explained to the judge the state of mind in which a tweet such as this one is made. I am an experienced Twitter user and internet applications developer specializing in communication and collaboration software. I know that although these messages are public, there is an expectation of a certain degree of privacy albeit a naive one. We do not expect our semi-private conversations to be monitored by airport security officials or police who are looking for "evidence" of dangerous criminal activity. I also know that Twitter's novel form gives rise to quick and sometimes thoughtless remarks. I am a reasonable person and I would hope that the judge would be forced to conclude that a reasonable person would not find such a message menacing in its proper context.
10. A successful conviction encourages the security industry to mine our public communications this way, which is a waste of time and effort.
    Yes, police time was wasted. I suppose airport security time was also wasted. But whose fault is this? Not Paul's. These people need to manage their time appropriately. How often has this type of scrutiny of electronic communications actually prevented an act of violence or terrorism? I don't know the answer, but I know that it did not in this case. I suspect that it does not in the vast majority of cases, yet they will carry on doing it. The justification is in the one hypothetical act of terrorism that perhaps would not be prevented if this information were ignored. But there are other ways of preventing crime and goodness knows we've allocated plenty of resources. Ultimately this is a disgraceful waste of public funds to investigate and prosecute a person who is basically not a real threat in any sense. I wish these people would stop.
    

Paul Chambers, the CPS and me

Back in March I wrote a letter of complaint to the South Yorkshire Crown Prosecution Service about its handling of the case of Paul Chambers, who has now been recently convicted of a crime involving a Twitter update. My complaint followed a careful reading of the blog of Jack-of-Kent. When I first heard about the case in January I knew there was something wrong, but it was not until reading J-o-K's great Bad Law column in thelawyer.com that I realized just how bad it was. Yesterday I wrote about 5 reasons why I think the judge's decision was wrong. Now I would like to set out with appropriate redactions my correspondence with the CPS.

------------------------------------------------------------------
Page 1

5th March 2010
To:
Crown Prosecution Service
Greenfield House
32 Scotland Street
Sheffield
S3 7DQ
info.southyorkshire@cps.gsi.gov.uk

Re: Crown case against Paul J Chambers of Doncaster

Cc:
Paul J Chambers, defendant
Rosie Winterton, MP
British Broadcasting Corporation (BBC)
Associated Newspapers Ltd.
National Council for Civil Liberties
Tessa Mayes
Ofcom

Executive Summary
This letter constitutes an official complaint to the South Yorkshire branch of the Crown Prosecution Service for its handling of the case against Paul J Chambers of Balby, Doncaster. Mr Chambers was arrested after posting an update to the social networking site Twitter that was interpreted as a bomb hoax. The defendant, Paul Chambers, was arrested by South Yorkshire police under section 51(2) of the Criminal Law Act 1977 for posting an update to his Twitter feed with a comment that was construed as a threat to plant a bomb at an airport. He was then later charged by the Crown Prosecution Service “in the public interest” with an offence under section 127(1) of the Communications Act 2003, which unlike the earlier act does not require the Crown to discharge a burden of proof as to the suspect’s intent. Although the defendant was not at the time of his arrest personally known to me and is now only known to me through internet communications, I am nonetheless outraged by the actions of the authorities in this case. I intend to show that the Crown’s interpretation of this law is inappropriate and threatens to chill protected free speech of all kinds. Letter of complaint begins overleaf.

Page 2
From: Matthew Joseph Flaherty
(address withheld)

To: Naheed Hussain, Chief Crown Prosecutor for South Yorkshire
Re: Crown case against Paul J Chambers of Doncaster

Dear Ms Hussain, et al:

This communication comes to you by way of electronic mail and post. In January of this year, one Paul J Chambers of Balby, Doncaster was arrested by South Yorkshire police under section 51(2) of the Criminal Law Act 1977 for posting an update to his Twitter feed with the following content after snow storms forced the closure of an airport: "Robin Hood airport is closed. You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!!" I am informed that this incident has resulted in the suspect being suspended from his employment pending an investigation and banned for life from Doncaster's Robin Hood airport. The ban was subsequently lifted; however, I am unaware of any conclusion to the employment disciplinary action. A police statement was later issued:

“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.”

I am further informed that the Crown Prosecution Service has elected to charge and prosecute Mr. Chambers under section 127(1) of the Communications Act 2003, which states:

Improper use of public electronic communications network
(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.
Page 3
(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.

I am led to believe that this provision is based on an earlier provision in the 1984 Telecommunications Act which was intended to deal with nuisance telephone callers. The application of the 2003 act over the 1977 act is significant because unlike the 1977 act, which would require the Crown to discharge a high burden of evidential proof that the defendant intended to instil in a recipient the false belief that he intended to plant a bomb, the 2003 act has no similar burden for proving intent. In a statement to Allen Green of thelawyer.com, The Crown have remarked "Section 127 of the Communications Act 2003 was considered to be the correct charge in the particular circumstances of the case. Under 127(1) an offence is committed where suspect sends by means of a public electronic telecommunications system a message or other matter that is “grossly offensive, or of an indecent obscene or menacing character”. A message can be any of these (rather than having to be all of them) and the message in this case was clearly of a menacing character. A more serious charge under section 51 Criminal Law Act 1977 was considered but was not felt to be appropriate as there was no evidence that he intended to induce in the recipient a false belief there really was a bomb."
These are the facts of the case as I understand them. Please either affirm or dispute in your reply.

I find it wholly inappropriate and highly objectionable that the Crown have applied such a wide interpretation to a statute that was designed to deal with one-to-one communications. When this legislation was drafted it was perhaps felt that the burden of intent was unnecessary, as in one-to-one communications the intention of the caller or sender can be inferred. The intention of a message sender in a broadcast style communication is much less clear and is therefore highly dependent on the context. The application of the Communications Act in this case has significant and wide ranging implications for the use of electronic communications that are likely to have a chilling effect on protected free speech.

In fact the implications are terrifying. It is remarkable how easily one can fall afoul of this interpretation of the law, with no evidential safety net to protect oneself. Please correct me if I'm in error. I do believe that your interpretation would have held that the BBC committed an offence in 2005 when it broadcast over a public communications network a performance of Jerry Springer the Opera. Indeed a significant proportion of the British population found this broadcast to be indecent and obscene if not grossly offensive. Likewise, the Press Complaints Commission received a record number of complaints after Jan Moir published in the Daily Mail a highly inflammatory article concerning the death of Stephen Gately. The article was in particularly poor taste and offensive to the family and friends of the deceased as it was published prior to his burial. This was simultaneously published in the online edition. It is clear from the context that Mr Chambers' remarks on Twitter were not intended to be taken literally but were simply a literary figure of speech known as hyperbole, intended to show his exasperation at the likelihood of his flight being cancelled.

Page 4
I fear I may have stepped over the line myself when in August of last year I became exasperated by the US Health Care arguments and tweeted "If I hear one more politician claim that the US govt health plan will "unplug grandma" I'm gonna get on a plane and go unplug theirs myself.". Was this a menacing message? I doubt any reasonable person would interpret this remark as a threat that I intended to carry out. For the record, it was not. If on the other hand I had sent a similar private message or a reply in the second person to Senator Chuck Grassley of the Senate Committee on Finance, then I think you would agree that this could have been rightly interpreted as a threat. This is the substantive difference between the two forms of communication. One is impersonal while the other is personal. One is nondirected while the other has a clearly intended recipient. The Crown's failure to grasp this fundamental difference reveals a woeful ignorance of the medium. The fact that Chambers used the second person should not confuse the reader into believing that the communication was directed. This is a colloquialism. Chambers makes the pretense of speaking to Robin Hood airport staff; however, he does not intend for this message to ever reach such a recipient or for it to be taken literally. We now find ourselves in the position of having to rely on expert testimony from English professors, a clear indication that something is amiss. After the Chambers case was publicised I decided to remove a different update I'd recently posted for fear that its intent might be misconstrued. Thus my free expression was effectively chilled.

If as you claim a message or other matter may be either grossly offensive or of an indecent obscene or menacing character without having to be all of them, and that it is not necessary for the suspect to have intended such, then we all have reason to be afraid. You claim that it is in the public interest to prosecute this case due to the widespread interest in the use of social networking in this way. I am of the exact opposite opinion. It is in the public interest that the Crown drop these charges immediately and reconsider the wisdom of applying the Communications Act in this way. Nobody has the right to not be offended. Wilful harassment and intimidation are special cases, but barring that a person has as much right to cause offence as take offence. If that were not so then there are very many well known comics and artists who would likely be facing criminal prosecution. Nor can a nondirected comment made for exaggerated effect reasonably be regarded as menacing. Certainly the intention of the sender cannot be disregarded in any case. The police and the Crown must use discretion when deciding to charge for such an "offence" in order to avoid what can only be deemed a miscarriage of justice. I am informed that Mr Chambers attended a hearing at the Doncaster Magistrates Court in February where he pleaded guilty and is now awaiting sentencing. District judge Jonathan Bennett heard the case. An otherwise law abiding citizen now finds himself carrying a criminal conviction. The defendant is not known to me. Presumably the guilty plea served to facilitate the return of some semblance of normality to his life. I find this terribly unfair. Thank you for your time and attention to this matter.

Yours Sincerely,
Matthew Flaherty

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17 March 2010

Dear Mr Flaherty

RE: PAUL CHAMBERS - DONCASTER MAGISTRATES' COURT

I refer to your letter of 5 March 2010 regarding the above matter.

The police are responsible for conducting enquiries into an allegation that a crime may have been committed. In relation to less serious offences the police may charge a person. If the case is more serious or complex, advice on charging is sought from the Crown Prosecution Service. Once the file is passed to the Crown Prosecution Service prosecutors decide whether a person should be charged with a criminal offence and, if so, what the offence should be.

In making any decision the prosecutor must ensure that the full code test, set out in the Code for Crown Prosecutors, has been met. The test has two stages: (i) the evidential stage; followed by (ii) the public interest stage. A copy of the Code for Crown Prosecutors is available on the Crown Prosecution Service website www.cps.gov.uk.

For the evidential test to be met the prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. This means that an objective and impartial jury or Magistrate, properly directed in accordance with the law, hearing the case would be more likely than not to convict the defendant of the charge alleged.

Page 2
On applying the evidential test in this case it was decided that the evidence was sufficient to provide a conviction for an offence under section 127 (1) of the Communications Act 2003, as evidenced by Mr Chambers' guilty plea.

It is clear from the statute that section 1(a) was not designed to deal with "one-to-one" communications, as you suggest, otherwise it would have included the words "to another" which are found in section 2.

The starting point under the public interest test is always that it is  in the public interest to prosecute unless there are significant circumstances not to do so. In this case, given the times in which we live and the concern caused to the airport security staff it was decided that no such circumstances existed.

In respect to the BBC and Jerry Springer matters I am unable to make any comment as this Area received no request from the police to consider whether charges should be brought.

I hope this letter has helped to clarify for you why the decision to prosecute was made.

Yours faithfully

Roger Tricklebank
Senior District Crown Prosecutor
CPS South Yorkshire

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22 March 2010

Matthew Flaherty
(address withheld)

To: Roger Tricklebank, et al.
Crown Prosecution Service
Greenfield House
32 Scotland Street
Sheffield
S3 7DQ
info.southyorkshire@cps.gsi.gov.uk

Re: PAUL CHAMBERS – DONCASTER MAGISTRATES’ COURT

Dear Mr Tricklebank, et al:

Thank you for your response to my letter of complaint on the 5th of March regarding the above matter. I refer to your letter dated 17th March. You have explained why, based on the evidential and public interest tests, the CPS have decided to prosecute the defendant Paul Chambers on a charge under 127 1(a) of the Communications Act 2003. In my initial letter of the 5th March, I had asked for the CPS to affirm or dispute the facts of the case as laid out therein. This has not been done to my satisfaction. I ask that you now kindly affirm to me in writing that the facts are not in dispute as presented in the body of my letter prior to the words “These are the facts of the case as I understand them”. If there are any errors or important omissions, please describe them. I acknowledge that there is a difference of opinion as to the applicability of the statute to this case and I would like to set that matter aside for now. In order to understand how to proceed with the complaint I will want to know whether the
following assumptions are true:

1. The CPS has found no evidence to suggest that the defendant intended either to plant a bomb at an airport or to cause another person to believe that such was his intention.

2. The CPS accepts the defendant’s assertion that he neither intended to plant a bomb nor induce a false belief that there was a bomb.

3. The CPS is of the opinion that the defendant’s intentions are not relevant to the charge.

I therefore ask that you please either affirm or deny the truthfulness of each of these assumptions. As my initial query was not answered to my satisfaction, I expect an expedited response.

I would like to take a moment to comment on some of the points you make in your letter. As validation of the evidential test you offer the defendant’s initial guilty plea. I note that on the 18th of March the judge accepted the defendant’s application to vacate the plea in order for the court to be able to reconsider the defendant’s intention to menace. In light of these changes, is the Crown still satisfied that the evidential test is passed?

Page 2
22 March 2010

You have argued that the public interest test is passed because no significant circumstances have been found not to prosecute. This position seems to ignore the defendant’s own rights guaranteed by articles 9 and 10 of the Human Rights Act 1998, which protect freedoms of thought and expression, and the wider negative impact that a successful prosecution is likely to have on protected free speech through electronic media. I have already demonstrated how easily one might unwittingly commit an offence by your application of the statute. Supporting your claim you state “In this case, given the times in which we live and the concern caused to airport security staff it was decided that no such circumstances existed.” This is the only information you have provided to support the public interest test. This statement has two weaknesses apparent to me. First, the reasons to prosecute, no matter how compelling, do not preclude the existence of a significant reason not to. Second, the reasons given appear specious: a) the prosecutor Rob Desira, as reported by the BBC, told the court in the initial hearing that the defendant’s message had no impact on the airport other than the expense and time taken for the investigation to be carried out (footnote 1); b) the times in which we live cannot have any bearing on this case as all recent cases considered by the Crown Prosecution Service have occurred within the times in which we live. Could you please clarify this statement?

Once again, should you wish to phone me during the day you may dial my office telephone number, which is (withheld). Please feel free to leave a voice message if I am not at my desk. I look forward to your response. Thank you.

Best regards,
Matthew Flaherty

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22^nd March 2010

Dear Mr Flaherty

Thank you for your recent letter which we received in our office on 22^nd March 2010.

I am currently looking into this matter and will reply to you as soon as possible. All future correspondence will be sent by means of the post, and not electronically.

Yours sincerely

Roger Tricklebank

Senior Crown Prosecutor

CPS South Yorkshire

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6th April, 2010

Hello,

This is a message for Mr Roger Tricklebank. I have been awaiting a reply to the correspondence referenced below regarding the case against Paul Chambers, which was sent on the 22nd of March. To date I have received no such reply. Can you please tell me whether a reply has in fact been sent or when I can expect one? Thank you.

Regards,
Matt Flaherty

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6th April 2010

Dear Mr Flaherty

Thank you for your email.

A response was sent out to your home address on Thursday 1^st April 2010.

Please see the attached document. This is a copy of the letter that was sent to your home address.

Yours sincerely

Roger Tricklebank

Senior Crown Prosecutor

CPS South Yorkshire

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01^st April 2010.
 

Dear Mr. Flaherty, 

Re Paul Chambers – Doncaster Magistrates Court 

I refer to your recent letter which is undated. 

The case has now been set down for legal argument to take place before the District Judge. I regret, therefore, that as you are not a party to the case I am not at liberty to discuss details of the case with you.
 

Yours faithfully,

Roger Tricklebank

Senior District Crown Prosecutor

CPS South Yorkshire.

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6th April 2010
Dear Mr Tricklebank,

This is a disappointing but not wholly unexpected answer. The answer is all the more disappointing as it was known at the time of your previous email acknowledgment that a trial date had been set. I had hoped to be able to persuade your office of how very poorly conceived this prosecution is and to convince you to drop all charges. As this is no longer possible I regret to inform your office of my decision to escalate this complaint to the central CPS office. I am saddened by the South Yorkshire CPS office's recalcitrance as I believe very strongly having read the judge's views on allowing the vacated plea that the prosecution will be ultimately unsuccessful and potentially embarrassing to a public organization that does much good work. No further response is expected from you; however, I'd ask you and your colleagues to take the time to ponder what good could possibly come of this.

Regards, Matt Flaherty

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In fact I never did write to the Director of Public Prosecutions. After speaking with Jack-of-Kent, we decided to leave it in the hands of the judge. I sort of wish now that I had. 

[Correction from first publication: Paul Chambers was in fact banned for life from Robin Hood Airport, but that was rescinded the following week.]