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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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.
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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.
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(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.
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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.
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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.
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?
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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
Matthew Flaherty
(address withheld)
To: Roger Tricklebank, et al.
Crown Prosecution Service
Greenfield House
32 Scotland Street
Sheffield
S3 7DQ
info.southyorkshire@cps.gsi.
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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22nd March 2010
Dear Mr Flaherty
Thank you for your recent letter which we received in our office on 22nd 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
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 1st 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 ------------------------------------------------------------------
01st 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 2010Dear 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.]
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