Friday, 12 November 2010

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

49 comments:

  1. Excellent article. Especially para 5, it's astonishing that Davies can believe anyone else except her believed it to be 'clearly menacing'.

    She's on another planet.

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  2. This is excellent. Will you be posting the judgement here when you have it? I'd be very interested to read it.

    The whole trial, and particularly yesterday's judgement, actually leaves me ashamed to have studied law at University. I'm certainly happy that I didn't pursue a career in the field.

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  3. I'd be interested to hear any response - this is so well put that I have difficulty seeing how anyone could read it and believe the judge to be correct. However there's none so blind...

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  4. I want the names of those menaced, otherwise, there is no crime

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  5. excellent. it says everything i feel about this.
    well written. and hopefully will reach it's intended recipient.

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  6. Incredible lucid post - more than I could manage. Thank you for writing it.

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  7. Very few could have written this better. Your efforts to help Mr Chambers' tragic, underserved and downright absurd plight are admirable Mr Flaherty. I sincerely hope, despite Judge Davies' completely ridiculous decision yesterday severely harming my faith in the common sense of the authorities, that those efforts will not be in vain. I would LOVE to read Davies' reply, should she ever manage to think of a remotely valid counter argument to this one you present here. Such is the calibre of your letter, it's a sizeable task for ANYBODY, let alone someone clearly as daft as Davies.

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  8. Wonderful! Very well said. You speak for so many people.

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  9. Just to clarify something - when she ruled that his previous consistent statements were self-serving, she was dealing with a matter of evidence, namely that you cannot bring in the fact that your story hasn't changed because that does nothing to prove that your story is true. Your story could be equally true or false if it were consistent. On the other hand, if his story had changed, that could be brought in to show inconsistency. That part of the judgement was nothing personally against the defendant, she was just adhering to the rules of evidence.

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  10. Excellent letter. I support every single word.

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  11. Stunning response Matthew. Eloquent, thoughful and heartfelt. I dearly hope Judge Davies gets to read this, though if her blinkered, out-of-touch conduct during the appeal are anything to go by, I doubt she'll understand the truly moronic depths of her negligence you expertly highlight here.

    Kudos mate.

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  12. Excellent first draft, and some good points.

    I would edit it down a bit to make it clearer, and if possible combine forces with the ipetitions site. Add people's signatures to increase its impact.

    Mary

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  13. Brilliantly said.

    I hope that this letter shines a little light into that dark spot that is judge Jacqueline Davies' mind.

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  14. Fantastic article, well written.

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  15. This judge would have half the users of the Internet as criminals. Has she ever seen what is on the Internet?

    This law was not created to be so badly misinterpreted, she has let society down.

    The problem with an independent Judiciary is that one appointed it is very hard to remove those who are not up to the job. We need to address that.

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  16. As it's a 1st draft I would say that perhaps the 2nd draft should cut out the personal attacks and hyperbole - "disgraceful", "affront", "illiberal". The sentence "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" is particularly cringe-making. How is it that you assume this duty? Also, being a lawyer who deals with a lot of discrimination cases, the notion of a female judge "adorning" the bench rather than just sitting on it made my hackles rise (reasonably or unreasonably I don't know, but it is as well to be careful).

    You have some good points to make, so don't ruin it by being needlessly personal or ludicrously hyperbolic.

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  17. ha ha, yes I love it, but really, to assume the judge herself is of sound mind and reads the papers and watches TV is an error of judgment of your own. Don't you remember the High Court Judge who asked several decades ago, who are these 'Beatles' ?

    Good article, but sadly the law is a closed door and the poor chap is done for (that's a legal expression)... sickening times we live in ...

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  18. Hi Vaughan,

    It was never my intention to give a sexist slant. I was looking for a better verb than "warm". Because as I see it she did little more than that. I have no duty other than that of an outraged citizen. I do not wish to tone down any aspect of the feeling in this piece. None of it is needlessly personal. I was there. Thanks.

    Regards,
    Matt

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  19. I think the judgement in this case was unimpressively witless.

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  20. Wonderfully argued, lucid letter- thanks so much for writing it. I was appalled yesterday when I heard about the decision. I can only hope this reaches her.

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  21. Excellent post, thanks - She's an utter disgrace

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  22. don't ruin it by being needlessly personal or ludicrously hyperbolic

    He's writing an open letter, not presenting a piece of evidence. I think Matt echoes the anger and frustation many people feel. I'd have had trouble reining in my fury as much as he has.

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  23. A brilliant exposé of the bankruptcy of this judicial process. Well said. And, pace Vaughan, this is not a submission in court: it is a measured, if emotionally charged, response to what took place in court.

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  24. A wonderful piece. Thank you so much for writing it. You were not the only one feeling queasy throughout yesterday, and anyone who cares about freedom is probably still feeling sick to their stomachs. This is an important case for freedom of expression, and I do hope Paul Chambers can find the strength to fight on.
    Adam_ps

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  25. Thanks everyone. Adam, were you there yesterday? Might I have met you? Yes I do still feel a tad unwell. May be somewhat related to late night and drinking in London though. ;-)

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  26. Hear, hear. I hope she reads this and is deeply ashamed.

    Hopefully justice will prevail in the end for Paul but that it has come to this at all is truly sinister.

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  27. Great stuff.

    Also, if the imaginery old couple were users of Twitter (and if they weren't, why wouldn't they be using a more appropriate source for airport information, like Google) they'd be fully aware that hundreds of silly jokes are Tweeted every minute. Even going to such extreme lengths to construct a situation where manace could potentially result falls flat on its face.

    Utterly disgraceful.

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  28. You're right Flay. That this judgement was handed out on 11/11 was particularly distasteful. Censorship is alive and well in the UK. No wonder David Cameron wasn't too keen on lecturing the Chinese on their deficiencies in this area.

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  29. over-emotional, undergraduate tripe. Sorry guys, this isn't about "free speech". Speech has always been fettered. Try shouting "fire" and see what happens.

    "Unimpressive" means the learned judge thought this jackass's pants were on fire.

    "Unimpressive" may however, also be a reference to PCs utterly lame "joke" defence. Always a winner in sexual and racial harassment cases! Why *not* here?! "Hey, I was just *kidding*. I'm really a great guy" does not cut it in law.

    In the meantime, there are many other more worthy legal causes to fight. Real injustice is the woman jailed for withdrawing her rape allegation. What is this, Sharia?

    No, you kids go ahead and weap for an utter jackass.

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  30. over-emotional maybe - this reflects the fact that emotions are running fairly high over this one.

    Free-speech is exactly what it's about (what else if it isn't?).

    'joke defence' doesn't cut it in sexual harassment but probably does cut it when the particular law being used hinges on whether the comment would be seen as a joke or as a menacing comment.

    Yes there are many other legal causes to fight - doesn't mean we should ignore this one. The emotion running high indicates that many many people care about this.

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  31. And the award for dullard unimaginative cliche-throwing goes to Thisis "fire" stokenewington. Ironically, also belched without any semblance of context (which is the problem here). I just shouted "Fire" and nothing happened, what now?

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  32. Dick perfectly makes the case against democracy. The mob just aren't up to it.

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  33. A personal account, as this is, cannot be 'over emotional' since it expresses emotion felt. In fact, as Matt's wife, I can tell you that this piece is decidedly UNDER-emotional as regards how Matt is actually feeling.

    As far as 'joke defence' its largely the media referring to the tweet as a joke. Its no more a 'joke' as it is a 'hoax'. Its a hyperbole or exaggerated manner of speaking for humorous effect. So it is a 'free speech' issue in as far as we should all be free to express ourselves to our friends without worrying about being branded a criminal.

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  34. Hello there,
    Just came across yoru post and have to say that I am now more incensced by the judgement reading this than prior to.
    BTW Thisis stokenewington.....
    FIRE..... Thats the last word you will hear when they line you against the wall when "they" take more than your freedom of will or expression away from you.

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  35. I guess you could say that yelling FIRE in front of a firing squad is a capital offence. ;-) It's good to be angry at this. Tell your friends. Make them angry. Write about it. Spread the word. Thanks.

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  36. Incidentally, I paraphrased from memory, but someone has quoted what I seem to remember was about right. I will amend the post with it if I decide that a second draft makes sense. It reads even worse:

    “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.”

    http://armyofdave.com/2010/11/12/something-important-happened-here/

    I'll tell you what, I certainly am alarmed.

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  37. What's truly menacing is this judgement and the establishment that has allowed it to come to this. I'm appalled.

    Great letter, and I'd love to read the response from Judge Davies.

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  38. Guess I must be one of the few who thinks Judge Davies was right.
    You can't make a threat to bomb an airport and expect to get away with it.
    There are plenty of things in world more deserving of public outrage than this.

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  39. Eloquant, puposeful, and every word true! I can see that you are an intelligent, well educated, normal person! By your very existence (and your insistance that you and your friends did not see Pauls tweet as menacing) proof that Judge Davies is wrong! I am fairly convinced, that the sheer scale of support for Paul Chambers should essentially put an end to the whole idea that any ordinary person using social networking sites, would find his tweet menacing?
    Similarly I question the intelligence of a Judge, who argues herself that Paul Chambers is an intelligent and educated individual, who would then post a message of intent, regarding blowing up an airport?! How could it be taken as anything BUT a joke? I would like to suggest that any joke, comment, past tweet, email or any other communication of Judge 'Idiot' be scrutinised so allegations of malicious intent can be launched at her so she can see how this sort of thing will get out of hand!
    I am severely dissapointed that i now have to censor myself in order not to be prosecuted should one single person take umbridge with my comments!
    Point me in the direction of any peacefull protest you wish to make!!

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  40. Hello brianinnj,

    I doubt you are the only one who holds that view. I've seen it echoed elsewhere. I would hope that if you were to study this case as closely as I have you would realize that the implications are very severe. The judge's decision is wrong. Full stop. It depends on accepting that the tweet was menacing by the standards of a fair and just society. Any reasonable person should find it menacing. A well informed person could not possibly reach that conclusion. Look at all the support!

    The judge places the tweet in the context of the times in which we live and the threat of airport terrorism. However, this is a constant not a context. It suggests that we must always submit to it. I don't accept that. The true context is much simpler. A man was frustrated about travel plans. He had been talking to his girlfriend and joking about terrorism. He was flying to Northern Ireland where terrorism has been commonplace until recently. She grew up there. It is a cultural reference that came out of the subconscious.

    The decision also hinges on Paul's awareness that he might have been causing menace. The judge has hamstrung Paul by his status as a reasonable person, the sort of person that she has convinced herself would know this was menacing. That is insupportable. I am 100% convinced that he did not have any idea the impact that this would have. I know, because I understand the thought process of tweeting and I feel it could as easily have been me.

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  41. Brilliant. But unless you send it snail mail I doubt ol' Judge Jackie will ever see it. I'm not sure she understands what an internet is.

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  42. Tis like Mary Whitehouse getting a TV descrambler in order to complain about blue movies. To say that the law is an ass would be insulting to donkeys.

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  43. Did you send this to the judge?

    She must be reachable online, since she collected money online walking through the desert Sinai for some cancer foundation in memory of her late husband. She must know something about the net.

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  44. Why did Judge Jacqueline Davis feel compelled to conjure up the image of an 'elderly couple'? Is she suggesting that elderly people are incapable of making a distinction between a serious threat and what to everyone else was obviously a joke? Judge Jacqueline Davis owes an apology. She has not only inflamed public opinion but also cast malign aspersions on those one might consider 'the elderly'.

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  45. I don't know why Davies conjured up an elderly couple, but I don't think she meant any harm. She was just looking for the type of person who might be particularly sensitive to menace.

    I have not sent this to the judge, but others may feel free to do so if they wish so long as it is understood that this is done without my urging. I will personally be complaining to my MP and the Office of Judicial Complaints: http://www.judicialcomplaints.gov.uk/. I hope the OJC will agree that this partly comes down to personal conduct.

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  46. I think her remarks about the elderly are harmful, certainly insulting. First of all what is elderly? At 38 some would probably put me in that bracket although I certainly don't. I suppose my image of an elderly person would be someone like my mother. She grew up in the conditions of the Blitz for crying out loud and in a place not too far from Doncaster too. Being elderly is not in itself an impairment and does not inhibit a person from making sound judgement based on presence of mind. A person in the position of Judge Jacqueline Davies ought to be aware that comments like these are offensive and cast malign aspersions on a whole section of society. What age is she?

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