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.

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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

------------------------------------------------------------------

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

------------------------------------------------------------------

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

------------------------------------------------------------------

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

------------------------------------------------------------------

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

------------------------------------------------------------------

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

------------------------------------------------------------------

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.

------------------------------------------------------------------

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

------------------------------------------------------------------

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.]

5 Reasons why the Paul Chambers decision was wrong

UPDATE: Please also read my followup post: 5 more reasons why the Paul Chambers decision was wrong.

Paul Chambers, the Twitter "bomb hoax" guy, was found guilty on Monday of sending a menacing message on Twitter and fined approximately £1000. This was his first criminal offence. I wrote about this in an earlier entry as I was preparing a letter of complaint to the South Yorkshire CPS. My complaint failed to deter the CPS from pursuing their charge under section 127(1) of the Communications Act 2003. It did however contribute to the defendant's decision to seek to have his initial guilty plea vacated. This was successful, to the surprise and renewed hope of many. Our hopes were dashed when district court judge Jonathan Bennett delivered his guilty verdict, which legal blogger Jack-of-Kent has described as a disgraceful and illiberal judgement. Here are five reasons, in no particular order, why I believe this decision is very wrong and very alarming.

1. This was clearly an expression of frustration and not intended to be taken seriously.
   A guy writes "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!!" to express his frustration that his flight might be cancelled due to about a half inch of snow. Well, that's the United Kingdom for you. You'd think nobody had ever seen the stuff. I know how he feels. Where I come from we would routinely drive our cars the day after a 3 foot blizzard. Getting back to the point, I haven't come across a single person apart from the judge who believes that Paul had malice in mind when he made this remark, no matter how ill-inconceived it may have been. I'll get to the judge in a minute.
2. The times we live in have no bearing on this or any other case.
   The existence of terrorism and its association with airports cannot alone serve as the foundation for perceiving a suggestive remark as a threat beyond a reasonable doubt. Anyone who thinks this is okay has willingly handed over his liberty for the sake of false security. Here is a typical response to Paul from a person called "HorseBooger" who clearly doesn't see what's at stake:
   
   
   
   

   Paul,
   I have no sympathy for you. You're an idiot and deserve what happen [sic] to you. You should have known better with today's climate.
   Now here you are whining about it. They should have horse whipped you and then put your dumb ass in jail.
   As for it ruining your career, I wouldn't worry about it. Sounds like you're to [sic] stupid to have had a career away [sic?].
   What I find even more surprising is there are other morons out there that support you.

   Well HorseBooger, if that is indeed your real name, I pity you. You have no idea what was taken away from you on Monday. People like this seem to universally hold the view that "this could never happen to me because I'm not a criminal". This is precisely what Paul would have said back in December if you'd asked him. Let me relate an extract from the book 'What Hitler Did To Us' written in 1938 by Eva Lips, a German woman whose husband was denounced to the gestapo by an informer. This excerpt was kindly provided by a commenter on the Guardian.
   
   
   
   

   I had become so intimidated that I no longer knew what was right and what was wrong... I was nervous with the postman, the milkman, the newsboy. He might be a spy who wrote down my words. In the trains there was a curious silence; no one ventured to talk to a stranger, still less an employee. laughing in the bus at the wrong moment might be dangerous. Photography enthusiasts did well to put their cameras aside; any landscape or group of people which one photographed might be used to prove one's intention of spying.. Everyone distrusted everyone else. No one ventured to express an opinion on anything.

3. The judge got his facts wrong.
   In his summation, judge Bennett explains that the prosecution must show that there was mens rea, a legal term meaning guilty mind. The act in and of itself is not sufficient to constitute an offence. Incredibly, the judge says that he is satisfied that the defendant was aware that his comment was menacing. He explains that he has heard testimony that the defendant is a man of good character and that the defendant denies any awareness that his comment would be taken seriously. He then goes on to say the following (emphasis is mine):
   
   
   
   

   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. Of particular significance is the fact that this "tweet" was posted to the public timeline, unlike most of his "tweets" in the time frame around this particular posting. This message would have been of particular significance to the lady known as "crazy colours" in Northern Ireland to whom the defendant was going to see on his air journey. He chose to post it in the public domain where in theory it was open for anyone to see, as indeed did Mr Duffield.
   
   I am therefore satisfied, so that I am sure, that the defendant sent the message via "Twitter" and it was of a menacing nature in the context of the times in which we live. Furthermore I am satisfied the defendant was, at the very least, aware that this was of a menacing nature and I find him guilty of the offence.

   Here the judge clearly fails to understand the mechanisms at play in the Twitter messaging scenario. One's Twitter timeline is either entirely public or entirely protected. Prior to Paul's arrest his tweets were public. Following the arrest they were locked. True, he could have sent a direct message, but you can only send that to a single person and he wanted his friends and other followers to see it too. Bennett makes a factual error here that I believe will result in a successful appeal.
4. Twitter, by its unique form, encourages off-the-cuff remarks without much thought.
   I understand that people who have never used Twitter might not realize how very dynamic it is. It is not like Facebook. Nobody who uses Twitter thinks that this was a good judgement. Twitter has become a way of sharing your semi-private thoughts with a small audience and with the hidden potential of reaching an ever wider audience. But they are just thoughts. It becomes a habit. This is because the available text is so short. More than any other medium, Twitter has really changed the way that people communicate. And it feels like you're in the same room with your friends. Conversations involving various levels of celebrity seem as though they are happening on the other side of the room. It lulls you into sharing more of yourself than you might otherwise. I think this is wonderful. However, it is all too easy to fall into the trap that Paul Chambers did. Here are a couple of examples:
   
   
   
   
   
   • Me (August 2009): "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" - possibly menacing.
   • Armando Ianucci (before flying to the Oscars): "At the airport.Got my Oscar tickets in my pocket, my girl by my side,and 3 packets of heroin hidden up my anus.What could possibly go wrong?" - probably would have been taken into a back room and strip searched had the Heathrow authorities been alerted.
   
   There are many others.
   
5. The police don't get to have a new tool for detecting and preventing crime just because we have a new tool for expressing ourselves.
   I concede that these conversations and monologues are not truly private, but I still feel that they should be treated as such for the purposes of establishing possible criminal behaviour. It's like with a search warrant. The warrant needs to specify what can be searched and what the police are looking for. The implication is that there is already cause to believe a crime has been or is being committed. It's hard for some people to accept, but this is a bit like searching without the proper warrant. You might find something of interest by accident, but unless it's been obtained properly it should have no value as evidence. Granted it might necessitate an investigation, but the police really must use common sense. Bear in mind, we are not any less safe now that there is Twitter. There could be millions of telescopic microphones dangling from the sky and picking up unguarded conversation. Imagine if it were as easy to process voice as it is to process text. I'll bet law enforcement would love that. Would you think it was right to use such speech against a person? Just because we have a medium that allows unguarded speech to be shared with a known group of people and to be spied by an unknown group, should we be content to monitor that for possible illegal activity? And that's really what it is, isn't it? Spying. Eavesdropping. It hasn't made us any less safe by its mere existence, so why should it be scrutinized in this way.

Paul has decided that he will appeal this decision. I am glad. The verdict is bad for all of us who publish and broadcast ourselves online. Those who don't understand free speech may one day find themselves on the receiving end of this abuse of law enforcement power. Then perhaps it will begin to dawn on them. If the appeal is successful, and I'm confident it will be, then they may be allowed instead to carry on in blissful (and in some cases spiteful) ignorance.


Links

• If you would like to donate to Paul's legal expenses, you can find out how here: http://twitter.com/twjoketrialfund and here: http://cripesonfriday.tumblr.com/post/587845442/twitter-joke-trial-fund. Any leftover proceeds will be donated to civil liberties charities. 
• There is also a Facebook group in support of Paul: http://www.facebook.com/group.php?gid=362215453264