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.