August 23, 2011

Enough is enough!

Filed under: Uncategorized — madaxeman @ 8:31 pm

Enough is enough!

Anyone who knows me, or indeed spends any amount of time reading this blog, will know that I got involved in the Paul Chambers “TwitterJokeTrial” case which concerned a man who has been convicted (I maintain wrongly) of threatening the blow up Robin Hood Airport near Doncaster. You may have noticed all the fuss at the end of last year with the #TwitterJokeTrial and #IAmSpartacus hashtags on Twitter, not to mentioned to Twitter community’s sterling efforts in raising both £10,000 toward the case at the High Court, together will a hell of a lot of much needed publicity.

People got involved in the #TwitterJokeTrial campaign for many reasons – some people knew Paul and his girlfriend personally, some people were concerned about the impact of the prosecution on social media in this country, and some people had more fundamental concerns relating to freedom of expression. We both were and remain, to put it bluntly, both a broad and well intentioned church… One thing that united us all however, and I know Paul himself bought into this, is that none of us wanted to see the law applied in a similar manner again.

Unfortunately, I find myself with the sad and unwanted duty of alerting you all to the fact that it has, tragically, happened again.

What’s happened?

One David Glyn Jones of Bangor has been convicted under the Communications Act 2003 (the same law (ab)used against Paul Chambers) of trying to incite a riot. It seems in the current climate he was mad enough to post:

  • “Let’s start Bangor riots,” along with
  • “I don’t see why everyone’s complaining about the rioters.” and
  • “Given the chance I’d love to smash up a police car, wouldn’t you?”

I’m not for one moment going to condone his views, I don’t share them – but I would like to make one or two points.

First of all, section 127 of The Communications Act 2003 requires that in order for a message to qualify it must be either a grossly offensive message, or of an “indecent, obscene or menacing character”. I would argue that Mr. Jones’ words simply do not fit into any of these categories. The actus reus simply isn’t made out.

Secondly, when we already have the offence on the statute books for incitement to riot (I have in my mind section 44  of the Serious Crime Act 2007 , with riot being an indictable offence), one wonders why this offence hasn’t been used. You only have to read section 44 to find out why – because it specifically excludes cases where encouragement of the offence is merely “a foreseeable consequence” of the suspect’s actions. The suspect has, in order to commit the offence, to clearly intend the encourage the offence he is alleged to incite. The prosecution can’t show a serious intent to incite riot, and they know it.

So we’re left with the inappropriate charge under section 127 of The Communications Act 2003 – and the tragedy is that the CPS (who make the charging decisions) know damn well that this is not what section 127 is about. Don’t believe me? Read this.

Next, let’s look into another troubling aspect of Mr. Jones’ case. It seems that he was sentenced at plea, which basically means he pleaded guilty to the offense. Paul Chambers did the same thing, because the CPS originally believed  that section 127 is a “strict liability” offence – ie an offence where so long as you carry out the act, your intentions (mens rea) are irrelevant to your guilt.  I’m left wondering whether or not they made the same claim in this case – and Matt Flaherty has already set about trying to establish is this is what has happened. If this is indeed how events have progressed, then the CPS have some serious explaining to do given the high profile nature of the #TwitterJokeTrial. “We were ignorant of the law” will no longer wash…

Mr. Jones’ solicitor seriously needs to have a word with Paul Chambers’ representative, David Allen Green. I suspect he will have several rather interesting things to say.

I have no wish to defend people who go out and actually deliberately try to incite a riot. Although I recognise that some things are posted in jest (as they should be able to be in a free and open society that actually respects freedom of expression), people who genuinely go out trying encourage violence, riot and looting will never enjoy my support for those actions. But you know what? I also won’t support a criminal justice system that is prepared to “bend the law” when it’s not quite as convenient as it might have been.

We send people into parliament to draft the laws that we, as citizens, are bound by. It is not for prosecutors to play a game of “can I stretch the interpretation of section x enough to make out an offence?”. Parliament shouldn’t be passing laws open to misinterpretation, deliberate or otherwise, but then I suppose we don’t live in a perfect world. The media however, through their role in bringing the judiciary and politicians to account before the public, really SHOULD be keeping their eye on the ball more than they are doing.

Section 127 is a terrible piece of law, and it’s use both in Mr. Jones’ case and the #TwitterJokeTrial itself has been appalling. The sooner we are rid of it in it’s current form the better, so please, write to your MP, make some noise (please, just to be clear, do not riot…), and let’s try and get something done about it. Our rights are not discretionary, but they will rapidly become so if we do not defend them.

Finally, #TwitterJokeTrial news – and the sad truth is there isn’t a lot of it. The last time I spoke to Paul (having bumped into him in a railway station – Airports would seem to have lost their appeal for him…) the suggestion was that the matter would be coming before the High Court later this year. I’ll announce it when we get dates, and personally, if I possibly can I plan on travelling to London to attend the hearing. Paul and Sarah remain in my thoughts – their lives, thanks to this whole ridiculous farce of a prosecution, are not exactly a barrel of laughs at the moment. They will however, I really hope, have the last laugh…



  1. Hear, hear. It seems to me that the #TwitterJokeTrial posse is dividing into two camps; one that supports the broader cause, and one that just want’s to see Paul’s conviction overturned. You clearly fall into the former category. Keep it up.

    Comment by Matt Flaherty (@flayman) — August 23, 2011 @ 9:58 pm | Reply

  2. Hi Matt,

    Not entirely sure I agree with you – I don’t think anyone from the original posse belives that 127a is a positive contribution to the law – everyone opposes it in it’s current form.

    The problem for me is that they are using 127a as a “catch all”, and in a way that the parliamentarians who drafted it never intended. They can not longer claim to be doing this from ignorance either, because they have fairly accurate guidance, and of course their experiences in the TwitterJokeTrial to guide them. My opinion of the CPS is that they know the stunt they pulled in the TwitterJokeTrial was wrong, but owing to a ridiculous judge they managed to get away with it. Hopefully the High Court outing will result in their confidence being knocked somewhat.

    Added to that, there is also the issue of whether they are still trying to use 127a on a basis of strict liability. If they are, then that needs stamping on. I’ll be interested to learn what response you get from the CPS to your enquiry on that point – though I suspect it will effectively end in “OFF!”.

    The problem of poorly drafted law is not restricted to 127a either – there are plenty of examples, especially from the New Labour period. The law should not be a matter of interpretation – it should be a clearly defined absolute.


    Comment by madaxeman — August 24, 2011 @ 11:32 am | Reply

  3. Nail on the head, Axeman.

    It is precisely this stretching of existing laws that annoys me most about this case. Though there are other points too that are just as important in regard to civil liberties, such as the freedom to make what is, other than to the society’s most cognitively deficient citizens, an obvious joke.

    Also, when did joking about violence become a crime?

    When did using Twitter or Facebook to natter to your friends become anything other than a modern-day extension of conversation?

    When did that ‘conversation’ ever become open to criminalisation?

    There must be more to ‘planning’ to do something that implies an element of illegality than making a whimsical reference to it on your Twitter or Facebook pages!

    Comment by Mark — August 29, 2011 @ 1:48 pm | Reply

    • I quite agree Mark. 127a is very, very loosely drafted. Doncaster Crown Court failed to make sense of it, and if one court can get it so hopelessly wrong, what hope for the rest?

      127a is being applied to Facebook and Twitter merely because they do indeed rely on sending a message through a public telecommunications network. It’s not the Facebook or Twitter service that we’re considering here, but rather the actual infrastructure of the internet – the lines to your ISP etc…

      I tried taking this up with Ed Milliband (my MP), but he just got some ministerial waffle and tried to call it a day at that. I decided there was no point in engaging with him further – he simply doesn’t “get” the civil liberties points I raised, and that’s not going to change. Not an encouraging sign in a leader of the opposition, but still…

      My issue is that the law in it’s original form was intended to stop people being abusive to GPO Operators. The internet wasn’t around at the time… Of course, the internet was around in 2003, but noone seemed to realise at the time that it’s words could be bent and misinterpreted in an attempt to apply it to the internet. Or perhaps they did realise, and left it all in there anyway – which would be slightly more troubling…

      What’s really alarming though is that people in general don’t appear to see the dangers in what is happening. I work with some pretty smart people, and I have some very smart friends – but they mock me for caring about all this… It’s a weird old world…

      Comment by madaxeman — August 31, 2011 @ 10:44 pm | Reply

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