Justice Denied: The DPP's proposed public consultation on free speech and prosecutions

This is cross posted from Justice Denied.

Much has happened, dear reader, since we last spoke. I will focus on just a couple related items. You may be aware that a week ago today the Crown case against Azhar Ahmed of Ravensthorpe, West Yorkshire resulted in a conviction at Huddersfield Magistrate's Court. We had hoped that the prosecution would choose to drop the case after the DPP loss in Chambers v DPP at the High Court. Unfortunately, they did not. Rather more unfortunately, the new leading authority of Lord Chief Justice Judge was not introduced into evidence. The defence stuck with DPP v Collins and lost the case. It seems that the judge was not persuaded by arguments that Mr Ahmed never imagined that his Facebook update would be seen by anyone other than his friends and family.

Now, less than one week from that result, the Director of Public Prosecutions yesterday published a statement on the CPS blog about his decision not to prosecute a s127 case and his intention to issue guidelines to prosecutors on social media. Once draft guidelines are published there is to be a wide public consultation feeding into the final publication. This is very good news, but one feels it comes a few days too late for poor Azhar Ahmed who must now await sentencing as he decides whether or not to appeal.

The DPP, Keir Starmer QC, has also been making appearances in the media. I'm told he was on BBC Breakfast this morning, though I've not heard what he had to say for himself. In light of his comments yesterday, I would now call upon the Director of Public Prosecutions to instruct his prosecutors to ask for an absolute discharge at the sentencing for Azhar Ahmed on the 9th of October and to explain to the judge that the CPS feel that a conviction would no longer be in the public interest. Certain of Mr Starmer's remarks are particularly relevant as quoted here:

"This was, in essence, a one-off offensive Twitter message, intended for family and friends, which made its way into the public domain. It was not intended to reach Mr Daley or Mr Waterfield, it was not part of a campaign, it was not intended to incite others and Mr Thomas removed it reasonably swiftly and has expressed remorse. Against that background, the Chief Crown Prosecutor for Wales, Jim Brisbane, has concluded that on a full analysis of the context and circumstances in which this single message was sent, it was not so grossly offensive that criminal charges need to be brought."

All of this with certain transpositions could be said equally of Mr Ahmed's Facebook remarks, which when taken in context are nothing more than a strong but poorly expressed political opinion. Indeed, his message was not found to be grossly offensive on an objective reading.

On top of all this recent business we have also seen, on the same day as this announcement by the DPP, another arrest on a s127 charge for a Facebook posting. A man has been arrested for creating an offensive Facebook page following the murders of two female police officers in greater Manchester. This may be the first time someone has been arrested on a s127 charge for publishing a web page. I will leave it to readers to work out why the publishing of a web page should not be caught by this offence. Start by looking up the definition of "public electronic communications network", then the definition of "electronic communications network", then the definition of "content service". All of these are defined within the Communications Act.

This has not yet been referred to the CPS and I am very interested to see what they would say about it. If it turns out that GMP have got the law "right" and the Lord Chief Justice would agree, then any web page, static or dynamic, can be caught by this offence. If that is the case then we have really opened Pandora's box. I will fight this like hell and I will need your help. In the meantime, please pop over to the Jack of Kent blog to get involved in a discussion about the upcoming public consulation.

Finally, please consider signing this petition in support of Azhar Ahmed if you have not already done so. Thank you.

UPDATE 5:16pm - I said I would leave it to the reader to work out why an act of publishing should not be caught by this offence. Ever one to be diligent, I decided to go and reread the relevant sections of the Communications Act, which are sections 151 and 32. Section 151 says “public electronic communications network” means an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public. Section 32 says:

32 Meaning of electronic communications networks and services
(1)In this Act “electronic communications network” means—

(a)a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and
(b)such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals—

(i)apparatus comprised in the system;
(ii)apparatus used for the switching or routing of the signals; and
(iii)software and stored data.

(2)In this Act “electronic communications service” means a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals, except in so far as it is a content service.

It also defines a content service, but it turns out we don't need that. The internet has been found at the High Court to be a public electronic communications network (PECN); therefore, it is also an ECN. An electronic communications service cannot be a content service, but both operate over an ECN, so it follows that a "message or other matter" sent by way of an ECS or a content service on an ECN can be caught. This is bad news. There is an argument that the internet is not a PECN because it primarily provides content services nowadays, but this got us nowhere in the courts.

Tom Daley and the twitter troll problem (an apology of sorts)

This morning I wrote a somewhat impassioned Twitlonger piece (I'm good at that) calling out the twitter mob that goaded a sick 17 year old young man into carrying on with his abusive behaviour towards the British Olympic diver Tom Daley (as well as others). I did not realise that Daley himself had retweeted an abusive message. That's my mistake and I'll have to live with it. But I mostly still agree with my sentiments. I've received a lot of very interesting responses to that Twitlonger. I'm not going to respond to them, but I'd like to make a few general observations. First, when I say "You know who you are", please understand that this also implies the opposite. If you are one of those who know who you are and are secure in your conscience, so be it. My piece was mainly to get people thinking.

Second, criticizing the twitter mob is not the same as "defending the indefensible". This is a straw man. I do not defend the young man's actions. He clearly has broken the letter of the law. He will now be dealt with for better or for worse. I don't see being arrested and facing criminal charges as a particularly good way to sort your life out. I doubt that he will receive much help in that regard, but I hope so. He will very likely be charged over this. I can't see how he won't unless his soundness of mind is questioned. That will probably be left to a judge.

The charges are likely to be more serious than the #TwitterJokeTrial charge of s.127 of the Communications Act 2003. Those who criticize me for making the comparison to Paul Chambers' case are perhaps missing the point. I said that the prosecution will go to the ends of the earth to make an example of someone, whether deserving or not. Paul Chambers was underserving. His prosecution was wildly disproportionate to the stated aims. This prosecution, should one be brought, is clearly much more deserving. But I think if the young man had simply been ignored, he would have ceased entirely. It is a shame that Daley retweeted him, but I certainly understand that.

The young man has admitted that he has experienced the recent loss of his mother. Some say that he should then be more sympathetic towards the diver who recently lost his father. Of course he should! We would expect anyone of sound mind to be more respectful. But consider that his own parental loss may have caused him to identify with the young diver (who is roughly the same age and from a nearby area I'm told), to an unhealthy extent. I'm not a phychiatrist and even if I were, I've never spoken to the boy. It's plausible though that he saw the failure of Daley to win a medal yesterday as some sort of personal one.

Finally, to any of my friends who have been upset by what I've written, I apologise. But I'm not your dad, I didn't name anyone, no one is identifiable. I'm not in a position to judge and I will not judge anyone individually. However, I will always say my piece. I'm not going to hold back. You should know that about me by now. That's all I have to say on the matter. Thank you for reading.

I just wrote to my MP asking him to block the Health and Social Care Bill

Like the title says, I just wrote to my MP asking him to block the Health and Social Care Bill. I don't expect much. He is a Tory golden boy lawyer who spent years as a wonk in Dominic Grieve's office. But he's my MP now (since 2010) and he's all I've got. My MP is Dominic Raab for Esher and Walton. So here's what I said to him:

Dear Mr Raab,

I have just read this report today in the BMJ and I have grave concerns: http://www.allysonpollock.co.uk/administrator/components/com_article/attach/2012-03-08/BMJ_2012_Pollock_HealthSocialCareBill.pdf. It outlines very clearly how proposed reforms could be used to create a health care system comparable to that of the United States. Mr Raab, I come from the United States. I've seen how that system works. It is a mess. In 2007 it is estimated that some 61% of all US bankruptcies were of a medical nature. http://www.pnhp.org/new_bankruptcy_study/Bankruptcy-2009.pdf. This was at a time when health care spending accounted for 16% of the country's GDP. This is not a good system. It is costly and fails to deliver care to those who need it most. This is because insurer underwritten health plans account for their service spending as medical costs. The costs are to be kept as low as possible; therefore, the insurers will use any means to avoid paying for medical treatments. People who believe themselves to be adequately insured suddenly find that their medically necessary treatment is not covered for one reason or another. People have incurred costs in the tens of thousands of dollars and lost their homes through mortgage defaults. This is bad for the economy.

The proposed reforms to the NHS are supposed to save the government money, but in the long run they will probably not achieve their stated objectives and will end up costing us all a lot more. A single payer system such as what we currently have is less costly to manage because it does not have the overhead of insurance underwriting. I ask that you please do whatever you can to block this bill. Hardly anyone wants it. It seems to be ideologically motivated, and there is absolutely no mandate for it. The NHS is a national treasure. It is probably the single greatest British achievement since the second world war. Please do the right thing. Thank you.

Best regards,

Matt Flaherty

(et cetera)

I'll let you know what sort of response I get.

Is it really "Un-American" to require an employer to provide contraceptive health coverage?

After reading this piece by Heresiarch on the Obama/Catholic problem of the day, I forced myself to ingest one of the sources, namely this Telegraph article by Dr Tim Stanley, titled "Obama's war on the Catholic Church isn't just insensitive – it's un-American". Ignoring the momentary shiver I always feel when I hear someone use that McCarthy era standard, I plowed on. I'm afraid I stopped on this paragraph (six?) as it told me everything I need to know:

The answer is that Obama’s diktat violates the American principle of freedom of conscience. It’s one thing to ask Catholic organisations to provide contraception coverage. It’s another thing to order them to do it. Imagine that you’ve been happily wearing a neck tie since the age of thirteen (imagine you are Mitt Romney). Then, one day, a government bureaucrat knocks on the door to tell you that it’s now the law of the land that you have to wear a neck tie, 24/7. The first reaction of any freedom loving, self-governing individual would be to tear the neck tie off (and maybe use it to throttle the bureaucrat). It’s a basic rule of human nature that people resent being told to do something, even if they intended to do it anyway. The Americans and British are brothers-in-arms when it comes to this kind of obstinacy.

The question that paragraph is attempting to answer is "Why is the Church so agitated, the liberal press asks?". And if that's the answer then I feel the issue of freedom of conscience is back to front. The analogy is poor. Actually, it is woefully bad. A better analogy would be this. Every day a person wears a neck tie but he provides his own. As silly as this may sound, let's say he only wears them at home or otherwise outside working hours. This is how he feels he should dress. Perhaps the employer has an irrational hatred of neck ties or something. Then one day, a government bureaucrat knocks on the door of the employer and says any apparel benefits plan that you provide for your employees must include a provision for neck ties. How horrible.

Here's how you exercise your freedom of conscience. If you are unhappy with this state of affairs, don't provide employee health benefits. Businesses with fewer than 50 employees don't have to anyway. For larger businesses, there is a $2000 tax penalty per employee for failing to provide health insurance to full time workers.

Get real, people. You've got it backwards. Why can't you see that? I think actually these pundits can. I think probably even John Boehner and Mitt Romney can. They're just hoping to hoodwink ordinary people in an election year. I hope the White House is better prepared for this row than it was for the Nazi-Socialist death panel slurs in 2008.

Arsehole Justice: The #TwitterJokeTrial: Why it matters to me - why it should matter to you.

Back in November, just a couple days before Paul Chambers' High Court appeal was originally scheduled to be heard, I gave a brief introductory speech to the specially convened Westminster Skeptics meeting. It is now two days before the appeal will finally be heard (8th February 2012). I have reproduced the notes for my speech here (the actual speech was a bit different). This is the Twitter Joke Trial in a nutshell from my point of view:

I first became aware of this case back in January 2010 when I read a write up in the Independent about a week after Paul was arrested. He had not yet been charged and the incident was still being treated as a bomb threat or hoax. It struck me as problematic because I felt I understood the context well enough to deduce that no harm was intended. I expected there would be no charge, but I remained curious...

Read more

Twitter selective tweet blocking. What exactly does that mean?

There's a bit of a twitstorm brewing over an announcment made yesterday on Twitter's blog outlining a new capability the company has built into its platform. This capability will allow Twitter to selectively block content to particular countries in order to comply with local laws. Here's the bit that has some commenters worried:

Starting today, we give ourselves the ability to reactively withhold content from users in a specific country —   while keeping it available in the rest of the world. We have also built in a way to communicate transparently to users when content is withheld, and why.

Mark Gibbs has written this piece on forbes.com which suggests that Twitter will implement this blocking scheme through the use of realtime filtering, saying "given that over the course of 2011 the number of tweets per second (tps) ranged from a high of almost 9,000 tps down to just under 4,000 tps, any filtering has got to be computer-driven." However, if you read the full Twitter blog post you will see that this is not at all what the company has in mind. In particular:

We haven't yet used this ability, but if and when we are required to withhold a Tweet in a specific country, we will attempt to let the user know, and we will clearly mark when the content has been withheld.

One wonders whether Mr Gibbs bothered to read beyond the first three paragraphs, because if a system of filtering was being employed "starting today", then it would in fact be in constant use. What Twitter has done is to build some flexibility into their platform which would probably not have sparked such controversy had it simply been there from the very beginning. If it is sensible to do so, they may now selectively block tweets to certain countries on demand. Previously they would have had to block a tweet globally due to technical limitations, so if anything this is a positive step. Twitter might not ever use this new capability, but now they can and we will expect them to weigh the pros and cons and to exercise their best judgement. Some have suggested that the announcement of this new capability will place the company under greater pressure from governments to block tweets. I find that hard to believe. I have no doubt that Twitter is already under enormous pressure from some oppressive regimes. In the past they would have simply ignored the pressure at the risk of a nationwide block of the service. Whereas previously Twitter would have shrugged and cited technical limitations, now they can shrug and state moral objections. I think the company has made a minor communication error. They should have said "retroactively" instead of "reactively". The latter suggests that it is the platform which is reactive. There are however plenty of other clues in that blog post that point towards retroactive human intervention. That is, if you choose to read that far.

UPDATE: The Twitter blog post links to some other materials, including this very helpful (um) help page: https://support.twitter.com/articles/20169222. Here we clearly see that it is only upon receipt of a valid request for a takedown that any content will be withheld. As you were.