Saturday 6 March 2010

Libertarian, que moi?

All this recent business with Paul Chambers and the Crown Prosecution Service has caused me to have a good think about what my beliefs are. Anyone who really knows me would probably say that I'm a progressive thinker. I don't like to use the term "liberal" because I think its meaning has been adulterated. At any rate, liberals of today are not what liberals were 100 years ago. There's classical liberalsim and there's social liberalism. These could scarcely be more different. If you don't believe me, have a look. But for certain, liberal does not mean libertarian. Unless maybe what you mean is civil libertarian. Civil libertarians strongly support a bill of rights that are unalienable and protect the freedoms of the individual against an overbearing state. Yeah, I'm into that. But I also believe in a welfare state. I believe that government can and should institute programs that aim to address social and economic inequalities. I believe that poverty and exploitation are problems that need to be tackled by everyone together. I believe that everyone has a right to basic affordable health care and that society ought to recognize that when a man is down we all suffer as a result. So you see, I am not a libertarian. I am a social democrat. I believe in civil rights, just not that you have the right to keep your wallet shut.

Thursday 4 March 2010

CPS v Paul J Chambers

This post is of a rather serious nature. It concerns the case of a man who was arrested after posting an update to Twitter that was interpreted as a bomb hoax. See the story. Here is a legal dissection of the case. I believe that the actions of the police and the Crown Prosecution Service are outrageous and threaten to chill protected free speech. I intend to lodge a complaint with the CPS. Here is what I believe to be my final draft.

UPDATE: A slightly modified version of the text below has been sent to the CPS and other interested parties. If you wish to complain as I did, you can write to:

Crown Prosecution Service
Greenfield House
32 Scotland Street
S3 7DQ

or email The chief crown prosecutor is Naheed Hussain.

ANOTHER UPDATE: There is now a Facebook group dedicated to this case:
ANOTHER ANOTHER UPDATE: Text of letter below now matches that sent, including Executive Summary.

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.

To Whom it May Concern:

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 Procescution 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.

(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 instill 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, 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 canceled.

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. Willful 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. 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.

Your sincerely,
Matthew Flaherty

Edit: made some content changes from inital draft.

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