The “Twitter joke” trial: why on earth did the DPP pursue this case?

by Carl Gardner on July 27, 2012

Today’s judgment in the “Twitter joke” trial appeal is an important victory for Paul Chambers, who can now move forward with his life as a man of good character. The legal system has wronged him; but now at least that wrong has been put to an end, and corrected to some extent. It’s a victory too for his legal team and for his supporters, who are entitled to feel they’ve played a role in a significant blow for free expression, and against the sort of silly thinking that throws common sense out of the window where the internet is concerned.

The judgment leaves a couple of important questions unanswered, though.

First, while Paul Chambers’s lawyers (who’ve had a couple of days to study the judgment) feel it gives an important measure of clarity to tweeters – I’m less sure. The key to the court’s reasoning is at paragraph 30 of the judgment, where it concludes that a message which creates no fear is not caught by section 127 of the Communications Act 2003:

a message which cannot or is unlikely to be implemented may nevertheless create a sense of apprehension or fear in the person who receives or reads it. However unless it does so, it is difficult to see how it can sensibly be described as a message of a menacing character …

In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably expected [sic] to see it, falls outside this provision, for the very simple reason that the message lacks menace.

There are two problems with this. First, it’s far from clear why the court has referred to those “who may reasonably be expected” to read a message like this. If the key is whether fear is actually produced, it follows that only those who do read it can have fear produced in them. The reference to people who may reasonably be expected to read a tweet causes confusion between the idea that what matters is how people react to an allegedly menacing message, and that idea that what matters is what the sender of the message ought to have thought might happen.

Much more importantly, though, if the key here was that Paul Chambers’s tweet put no one in fear – there was no evidence that it did so, something the court noted at paragraph 13 of the judgment – we must infer that the result might well have been different had there been evidence that anyone had felt apprehension, as the court put it, on reading the tweet. Nowhere in the judgment does the court provide any legal reasoning which suggests the outcome would have been the same had there been any such evidence. It’s true that, in paragraphs 31 to 33, the court considers the tweet in its context and appears to see the reaction of those who read it as only part of the picture. But it’s clear, ultimately, that the court decided Paul Chamber’s tweet was not menacing because there was no evidence that anyone felt fear; and that the Crown Court’s decision was set aside because it failed to give sufficient weight to this.

So I’m not sure this judgment produces clarity or safety for those who tweet jokes like the one Paul Chambers made. Yes, the courts will consider the full context or your tweet. And no doubt the CPS will be very wary of taking a prosecution like this again. But you cannot know before you tweet a joke whether it might – just might – make someone feel apprehensive. If you think it just conceivably might, and in the event someone says that it does, then you may well commit an offence under section 127. I would not relish having to argue that I was not guilty because the person who claimed to be apprehensive was being unreasonable.

The other key question, and one which both Paul Chambers’s solicitor David Allen Green and Louise Mensch MP raised in their interviews with me this morning, is why this case was pursued by the CPS – at least once the matter went to appeal. Green said the DPP’s decision to continue to fight the case was “disgraceful”; Ms Mensch said the CPS owes Paul Chambers an apology, and Parliament an explanation.

I’m not sure I agree with Louise Mensch about the DPP needing to explain himself to Parliament. I don’t doubt MPs have a legitimate interest in what happened in this case, and I don’t say they’d be wrong to summon Keir Starmer to explain his decisions. At the same time, though, the DPP and the Crown Prosecution Service must be, and must be seen to be, independent not only of government but of Parliament. The rule of law requires that independent prosecutors take independent decisions, without fear of or pressure from MPs. So while I agree with Louise Mensch’s criticism of the CPS, and while Keir Starmer should if need be account to those MPs who want to tell him he got this case wrong, he’s also entitled to tell them that he makes his own mistakes – not those politicians tell him to make.

The more important role for Parliament, if it wants to protect tweeters from CPS heavy-handedness, is to change the law so as to make a prosecution like this impossible in future, even in the sort of circumstances I considered earlier.

I do though agree that the CPS and the DPP made a shockingly bad decision in prosecuting this case, and certainly in continuing to fight it once the initial conviction was appealed. It’s not easy to see how this prosecution was in the public interest.

Crucial, though, is the “dog that didn’t bark”, or perhaps that barked at one stage but never bit. The initial case stated appeal back in February (there had to be a second appeal because the two judges who heard the first one couldn’t agree) was argued mainly on the basis of human rights. This time round, no doubt for strategic reasons, Paul Chambers’s lawyers chose not to focus on freedom of expression but on the plain English criminal law point about whether the tweet was menacing – the point which has ultimately won.

Nonetheless the article 10 Convention right to free expression is absolutely at the heart of this case, and in determining it on other legal grounds, the courts have evaded that important legal point. The CPS was bound to take article 10 into account in reaching its decision to prosecute, and can only lawfully have prosecuted if doing so was a proportionate interference with freedom of expression.

But a prosecution was obviously disproportionate from the beginning. No one was put in fear by this tweet; and no anxiety was caused at the airport. Even if in law the tweet had technically been “menacing”, the decision to prosecute affected Paul Chambers’s life in a severe way – involving first the threat and then the reality of a criminal record, which I understand lost him two jobs – and in a way which was entirely foreseeable. Of course that sort of thing happens in almost every criminal case. But in most cases, there is enough of a public interest in punishing the allegedly unlawful behaviour that the private interest affect is outweighed. Here, not only was there not such a public interest; it was obvious from the beginning that there was none.

The prosecution of Paul Chambers was unlawful, because it was a disproportionate interference with free speech, incompatible with the article 10 Convention right. How on earth can the DPP can have concluded otherwise?

{ 27 comments… read them below or add one }

1 f July 27, 2012 at 18:19

“Paul Chambers’s lawyers (who’ve had a couple of days to study the judgment)”
And the buggers didn’t tell you.
Hours (hopefully)

Well done all.

2 Simon Carne July 27, 2012 at 19:28

Undoubted congratulations to all those who have helped Paul Chambers through this ordeal. But I share your view that the excitement has been mixed with more than a little hyperbole. Not least all that Betjeman and Shakespeare stuff.

Simple test: If Paul Chambers were to propose that he now issue the following tweet, would David Allen Green or John Cooper QC advise him that it was entirely safe to hit the send button: “Appeal over, need a holiday … but first let’s kill all the lawyers”?

I think some people would find it very funny. But would everyone (including the CPS) get that it was a joke?

3 Stephen July 27, 2012 at 19:40

@Carl Gardner

But was not some clarity achieved by virtue of the Court’s finding that intention to menace must also be present (mens rea)? Or have I got this wrong?

4 ObiterJ July 28, 2012 at 10:10

I agree that the DPP has to be independent of MPs. (In fact, he operates under the ‘superintendence’ of the Att Gen). However, it would be good to see someone from the CPS having to publicly justify the hounding in this way of Mr Chambers.

I also agree that this case should never have been prosecuted. The tweet was not sent to the airport but was discovered by an airport employee searching Twitter. He then reported it to a manager who assessed it as non-credible but, following airport orders, reported it to the airport police who took it to S. Yorkshire Police. Also, on any commonsense reading of the message it could not sensibly be regarded as menacing. A prosecution in those circumstances was heavy handed and not in the public interest.

Crown prosecutors must comply with the principles of the European Convention – (Code for Prosecutors at para 2.6) – but it seems quite a big step to say that this prosecution was unlawful as being in breach of Mr Chambers’ freedom of expression. If it was then presumably Mr Chambers might well have some form of legal redress against the CPS?

I do not find the Divisional Court’s judgment to be particularly clear. They set out the legal questions asked in the “case stated” but then side-stepped them – particularly the human rights points. It is not at all easy to distil from the judgment what the precise actus reus is. It appears that they decided that this tweet was not menacing because it produced no concern in anyone at the airport. However, the mention (para 30 last sentence) of … “or who may reasonably expected to see it, …” seems to take us back to some form of objective test which the judges do not particularly clarify.

5 Alex July 28, 2012 at 16:07

Carl, I think you confuse operational independence (which the DPP and CPS must have) with accountability for their use of that independence after the fact. Ultimately they are funded by the taxpayer and must therefore be able to be called on to justify the use of that money. In the UK that task generally falls to Parliament.

What angers me about this case (and even more so in the case of Sam Hallam) is that nobody is personally held accountable for their actions and that the (completely justified) costs and compensation are borne by the taxpayer. I think this is one of the root causes of poor behavior in public service, that there is no individual or management responsibility for these decisions.

What I would like to see is that an example is made of the CPS staff involved in this and the Sam Hallam case by the CPS and the SRA. If there was a way to make them individually accountable for the millions of pounds of money wasted or if prosecutions for malfeasance in public office were available even better. Perhaps if losing their job, their profession and their home was at the back of their mind, CPS staff would be less keen to pursue such malicious prosecutions.

I also think that this is also a resigning matter for the DPP, as there is no way this could have progressed to this stage without his approval.

6 Matt Flaherty July 28, 2012 at 19:11

To commenter #1, it was indeed days. A draft judgement was sent through on Wednesday for the lawyers to correct.

For me, there are two main disappointments with the judgement. Firstly, a tweet found several days later through the search facility is still a “message” for the purposes of the Act. This feels wrong if blog comments such as yours and mine are to be treated as content. Second, this is still an offence of basic intent. I think mens rea should require the sender to have intended to menace a particular person. LCJ says that Parliament did not intend to create an offence of specific intent, but this ignores the problem with evolution of communications. In telephony scenarios basic intent and specific intent would be hard to distinguish.

It’s a very good judgement though. It raises the thresholds to appropriate levels and also puts the Crown Court in its place. In not responding to the case stated questions, LCJ treats this like a normal criminal appeal. It reads a bit like a dressing down.

7 Tony Lloyd July 29, 2012 at 13:43

The DPP, though entitled to make his own mistakes, is surely answerable to MP’s if there is a systematic failure. There is a suspicion that the decision to prosecute was not a one-off but indicative of the DPP simply not considering the public interest aspect of prosecutions.

A public interest test would answer the question “what would be the consequence of not pursuing any prosecutions like this?”. But that’s difficult to make and impossible to measure whether you are right or wrong. Answering “have we got a good chance of winning the case” is, especially for experienced trial lawyers, a much easier call to make. It is also readily measurable: add up the wins, add up the loses and express them as a ratio. Problem is that it doesn’t address the public interest at all. There will be prosecutions that are highly unlikely to succeed that should be pursued and “open and shut” cases that should be left alone. It seems to this layman that prosecuting LIBOR rate fixers would be very unlikely to succeed, but should be pursued. The consequence of failing to even attempt to hold people to account places future wrong-doers in a position of total confidence that even if they are discovered, nothing will happen. Paul’s case is one where the, at least initial, “win” was easy but with no adverse consequences what-so-ever if the prosecution was not pursued.

The DPP/CPS appear to have avoided their duty to ask the difficult question by finding a different, easier, question and simply pretending that was what was meant.

I say the “DPP appear” to have done this. It’s mostly speculation: precisely why Parliament should have a look and see whether it is the case or not.

8 Stephen July 29, 2012 at 14:35

Perhaps the public interest test should be modified from the current “Is it in the public interest to prosecute?” to “Does the public interest dominate the private interests of those prosecuted?”

In the Paul Chambers case, the private costs inflicted on him by the prosecution were very high. Loss of two jobs, lost income, lost reputation and lost opportunities due to his subsequent unemployability. All this on top of a fine and court costs. Moreover, some of the private costs suffered by Paul were also social costs (lost taxes, potential benefit payments).

Now set Paul’s private costs against the public interest of prosecution. Conceivably, the public interest was to make an example of Paul to deter future would-be terrorists from issuing threats over social media. If this was the justification then it was not very well thought out, I would suggest. It is not clear to me what other public interest criteria might have motivated the CPS to prosecute, other than to make Paul an example to deter others.

The CPS’s decision to use Paul as a means to achieve its (dubious?) end was a callous one because it was forseeable that Paul’s private costs would exceed any conceivable social benefits or public interest arising from a successful prosecution.

So I agree the CPS should account (in detail) for this apparent poor decision, (although perhaps not to Parliament), and further, the CPS should be made to modify its decision making criteria so as to make its decisions more rationale. I doubt if Paul’s is an isolated example.

9 Matt Flaherty July 29, 2012 at 18:18

Carl, something has just occurred to me. I give a slightly different reading to paragraph 30 which causes you such concern.

“In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably expected [sic] to see it, falls outside this provision, for the very simple reason that the message lacks menace.”

I don’t think this is inconsistent. LCJ is simply saying that the message is communicated to certain people by design. Outside of that group, those who may reasonably be expected to see it include those who did see it through other expected ways. This might include a retweet for example. It was not expected that anyone involved in the running of the airport would see that tweet. In the mind of the sender, it would have been extremely unlikely, and he could have explicitly done so had that been his intention.

The airport only became aware of the tweet through a mechanism that was not in the mind of the sender, and certainly the retrieval in that manner reduces its immediacy. Paul was reasonably unaware of any risk.

Here is something else to think about. Let’s say one of the expected recipients was moved to take some sort of action. They would probably take issue directly with Paul so that he would have the opportunity to explain himself and possibly make reparations, such as deleting the tweet and apologising. I would hope that with this judgement it would be regarded as unreasonable behaviour to simply alert the police without giving the “offender” an opportunity to explain. If not, then I would hope that not having had an opportunity to explain would be a reasonable defence.

10 Matt Flaherty July 30, 2012 at 00:19

@Stephen, you are quite right that Paul’s case is not an isolated example. See here (my FOIA request): http://www.whatdotheyknow.com/request/hollie_bentley_prosecution_how_w

We need to shine a search light on CPS decision making. They do not appear to be following their own prescribed tests.

11 Carl Gardner July 30, 2012 at 10:07

@Stephen

I don’t think much clarity was gained about mens rea, Stephen, no.

First, what’s said about mens rea (i.e. what kind of intent you need to have in order to commit the offence) must all be obiter – in other words, it’s not binding precedent. That may be a good thing in the long run.

More importantly, at para. 36 the courts says

we are unable to accept that it must be proved that, before it can be stigmatised as criminal, the sender of the message must intend to threaten the person to whom it was or was likely to be communicated, or that such a specific purpose is a necessary ingredient of the offence

so an actual intention to threaten isn’t necessary; and at para. 38

We agree with the submission … that the mental element of the offence is satisfied if the offender … is proved to have been aware of or to have recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it.

so it’s enough just to think there’s some risk that one reasonable person somewhere may feel some apprehension if they read it.

If you think someone, somewhere, might just feel a little apprehension, and if someone gives evidence that they did feel apprehension, your only defence it seems to me to argue that that witness is not a reasonable person. As I said in my post, I don’t think that’s be a great argument to have to make.

It’s true that the judges also said (para. 38)

if he may have intended the message as a joke, even if a poor joke in bad taste, it is unlikely that the mens rea required before conviction for the offence of sending a message of a menacing character will be established

but “unlikely” seems to me to offer little protection. I think the other passages I’ve quoted show how guilt can be found even in the case of an obvious joke.

12 Carl Gardner July 30, 2012 at 10:31

@ObiterJ

I don’t say it was a malicious prosecution for which Paul Chambers could sue the CPS – for that, he’d need to show the case was conducted in bad faith, and I don’t think anyone’s ever suggested that.

But I think unlawfulness has to be your legal conclusion – unless you think the prosecution was proportionate in terms of free speech.

But there’s a good argument that it wasn’t justified in the interests of national security or public safety or preventing crimes or protecting the rights of others – which are I think the only possible grounds of justification under article 10(2). Prosecuting Paul Chambers didn’t actually contribute to national security or safety, it didn’t deter or prevent crime in anything other than a circular techincal sense (by preventing the sort of crime Paul Chambers was alleged to have committeed) and no one else’s rights were affected by what he did.

And there’s a good argument that it wasn’t proportionate, i.e. “necessary in a democratic society” in the terms of article 10(2). The effect on Paul Chambers was out of all proportion to the social gain or public interest in pursuing him.

If you find either of those arguments persuasive, then you can’t reconcile the prosecution with article 10; and since the CPS is obviously a public authority, it follows that the decision to prosecute must have been unlawful under article 6 of the Human Rights Act. I don’t think either of the section 6(2) “defences” applies: the CPS certainly had discretion not to prosecute (which knocks out section 6(2)(a)) and neither side argued that section 127 of the Communications Act 2003 was incompatible with article 10 – that would have been a very uphill argument, I think, as it’s obvious there are some kinds of menacing communications that can properly be made criminal.

13 Carl Gardner July 30, 2012 at 10:53

@Alex,

I see your point about confusing operational independence with after-the-fact accountability. Maybe I am – but I don’t think so entirely.

We’d all agree that a politician shouldn’t interfere with a judge’s ruling (operational independence) but I think we’d also agree it’d be wrong after a judgment for MPs to summon a judge to account for his or her ruling before a committee.

Okay – the CPS is part of the executive, and not in the same position as a judge. But still, I don’t think it’s obvious that it’s just okay for politicians to interfere with CPS decisions after the fact in individual cases. I think there are risks in that, and that some care is needed. Would we be comfortable with the idea of politicians second-guessing decisions to prosecute in MPs’ expenses cases, or cash for honours cases (had there been any) or phone hacking?

By the way, I think there’s another reason why MPs would have a cheek if they went in hard on Starmer. If it’s even possible for him to take a case they as a body don’t like, then either the legislation they enacted mustn’t have been clear enough, or at the very least they could and should change the law so as to contrain him more. I think that’s what they should focus on.

The obvious change it seems to me they could make here would be to make section 127 an “either way” offence, so that people like Paul Chambers would have the right to jury trial. That’d focus CPS minds.

As ObiterJ has said, the CPs is under the superintendance of the Attorney General, so accountaibility to Parliament can best be achieved here by the Attorney answering questions on this, and appearing in front of committees.

I think Lord Goldsmith once suggested there should be a committee looking at the Attorney’s work, and I think that’d be a good idea.

14 ObiterJ July 30, 2012 at 12:02

Thank you for coming back on the question of unlawful prosecution. (It would certainly not be malicious). Your line of reasoning is very persuasive and prosecutors are required by their Code (para 2.6) to comply with convention principles which must surely include compliance when making the actual decision to prosecute.

I wonder if this might get tested in the courts? However, if I were Mr Chambers I doubt that I would bother unless I was guaranteed legal aid to take it all the way. In any event, he may well have had a belly full of the law and the courts.

15 Alex July 30, 2012 at 20:55

Carl – Thanks for answering this and for providing such a straightforward explanation, I’m not entirely convinced though. If Parliament cannot hold the DPP and CPS to account, then who can? You’ve alleged that the CPS acted unlawfully and that the DPP was complicit in this, surely it cannot be satisfactory that we’re all expected to shrug our shoulders and say “nothing to be done here”? I doubt the SRA or Bar Standards Board will get involved, and a private prosecution for misconduct seems unlikely to succeed (and in any case would lead to any compensation being paid by the taxpayer rather than the individuals responsible).

The case of the judges involved in this case seems equally unsatisfactory, they’ve just been castigated for what appear to be fairly basic errors of law, but again cannot or will not be held to account for this fact.

Finally, I think your argument that “If it’s even possible for him to take a case they as a body don’t like, then either the legislation they enacted mustn’t have been clear enough, or at the very least they could and should change the law so as to contrain him more” is undermined by your explanation to ObiterJ that the CPS and DPP acted unlawfully. My view tends to be that if people act outside of the rules, it is enforcement of the rules that are needed (i.e. accountability) not new rules.

With the greatest of respect (and I mean this genuinely) I feel that you and DAG in the podcasts and your blogs are too quick to blame the ‘system’ or rather than the individual lawyers who make the decision to pursue unjust cases (be those malicious prosecutions or free-speech chilling libel actions). It does seem that the law profession is too quick to defend individual poor practice and this is a contributing factor to the low esteem the profession is held in.

16 James Medhurst July 30, 2012 at 22:25

Hmm. You accept that the offence itself is human rights compatible so how can a prosecution of that offence be disproportionate? You seem to be saying either that the prosecution should not have been brought because it was obvious that the DPP was going to lose or it should not have been brought even if it did fall within the offence.

Don’t get me wrong. This was a stupid prosecution to bring but it is worth remembering that not all stupid acts breach human rights.

17 Carl Gardner July 31, 2012 at 10:16

Matt,

On the question of what’s a message, I’m not sure I’m with you. I see the distinction between something communicated immediately and something collected later by some other means by someone the message wasn’t intended for; but I don’t see why this should make all the legal difference in terms of what’s a “message” and what’s not.

It seems to me that if you leave a message on your fridge door for your husband or kids to see, but in fact the cleaner, or a member of a police search team, or a burglar sees it, it’s still a message. What’d stop it infringing section 127 would be either its lack of menace or your lack of the relevant mens rea when putting it up.

I wonder what your approach would mean in terms of phone hacking (which I’d ask commenters please to discuss in general terms rather than in relation to any specific case which might be subject to criminal proceedings). You’d have to argue that a “communication” isn’t the same thing as a “message”, wouldn’t you, otherwise listening to someone’s voicemail wouldn’t be a communication under section 1 of RIPA?

I’m not sure why this offence should require specific intent to menace a particular person, either, rather than simply recklnessness. If your principle is simply “free speech should be limited as little as possible, therefore choose the narrowest criminal limtations on it”, then okay. But I think requiring a particular person is too narrow.

I wonder what you’d say for instance about a Twitter account that sent a stream of tweets promising “death to Jews” or something similar, which I’m sorry to say is not beyond imagining. No particular person would be threatened by that, but surely it’s exactly the sort of thing the provision is intended to catch.

I see what you mean about para. 30 – I’ll need to think about it.

18 Matt Flaherty July 31, 2012 at 11:01

Hi Carl,

Thanks for the reply. On specific intent, my feeling is that LCJ shouldn’t read anything into Parliament not having created such an offence. In the original 1935 enactment and all throughout the genealogy, Parliament failed to create an offence of anything other than strict liability. It is only through Sweet v Parsley 1970 that the judiciary are forced to read a mens rea requirement into the law. In 1935, when telephony was the big thing, basic and specific intent would have been virtually indistinguishable. The blackmail arguments made a lot of sense to me.

On the messaging scenario, we need to note the fact that the definition of an electronic communications network (enhanced in this reading as a public one), specifically exludes anything that is a content service [s.32(2)]. s.32(7) reads:

“(7)In subsection (2) “a content service” means so much of any service as consists in one or both of the following—
(a)the provision of material with a view to its being comprised in signals conveyed by means of an electronic communications network;
(b)the exercise of editorial control over the contents of signals conveyed by means of a such a network.”

A web log such as yours counts as a content service and my comment now is a piece of content, despite that I sent a message comprised of electronic signals over a qualifying network. As this point is limited to the Communications Act, I don’t see it affecting RIPA. Could be wrong.

What began life as a message evolves into a piece of content over which the sender maintains editorial control, at least in so far as he can delete it. In my view it would have been a message only as regards those who would have reasonably been expected to read it. As for “Kill all the Jews” or whatever, that may reasonably be expected to cause gross offence to some people who would be expected to read it (if all relevant context supports it). But if you were to make a blog post where you wrote (apparently earnestly) “Kill all the Jews”, I would not expect you to be prosecuted for that, ugly sentiment though it clearly is.

19 Carl Gardner July 31, 2012 at 11:03

James,

I’m interested in the point you make – I think it brings out an important aspect of the way the Human Rights Act works, which other readers may be interested in.

I don’t think there’s any contradiction between thinking the legislation compatible and this prosecution incompatible – in fact I think the prosecution can only be unlawful because the legislation is compatible with human rights – which I know to most people seems counterintuitive. I don’t see how it follows that if legislation is compatible, every application of it must be proportionate.

The Human Rights Act (it seems to me) distinguishes sharply between questions of compatibility of legislation (of big-A “Acts”, as I explain to students) and compatibility of actions (of little-a “acts”).

If the legislation itself were rights-incompatible, then it follows under section 6(1)(b) that any prosecution under it would be lawful under the HRA – proportionality would be legally irrelevant inside the UK legal system.

Unless therefore it’s possible for the CPS to breach Convention rights in the way it applies compatible legislation, the result (it seems to me) would be that the CPS could almost never breach section 6 of the Human Rights Act, because everything it did in relation to legislation would be protected as either enforcing incompatible legislation or compatible legislation. That can’t be right. It “disappears” the possibility of an incompatible little-a “act”.

I think the problem lies in seeing the compatibility of an Act as meaning that any legal effect that Act could conceivably have on any set of facts can be reconciled with human rights. I don’t think compatibility is such an exhaustive concept. Once you see compatibility of legislation as meaning something less ambitious – that nothing on the face of an Act necessarily conflicts with Convention rights, so that the legislation can be applied in a way which is compatible – I think my approach makes sense.

To quote Lady Hale in MH (see para. 32), if

the means exist of operating section 29(4) in a way which is compatible with the patient’s rights. It follows that the section itself cannot be incompatible, although the action or inaction of the authorities under it may be so.

I think my approach is the same as hers, or flows logically from it: section 127 is compatible with free speech, but the action of the CPS in enforcing it may be in breach. Yes, that leads me to saying that every prosecution must be proportionate in relation to any Convention right it interferes with, or else is unlawful.

I very much agree with you that not all stupidities breach human rights – I’m against the sort of thinking that sees human rights as a template for all human behaviour.

20 Carl Gardner July 31, 2012 at 11:07

Obiter J,

I think the potential testing of the point came in this appeal – it’s just that in the second appeal hearing, Paul Chambers’s legal team thought it better to focus on a normal criminal law approach rather than on the human rights point.

At the first appeal, having been at court and heard the way Ben Emmerson’s submissions went, I feel sure the judges must have been divided on whether the prosecution itself was disproportionate in terms of free speech. That was the only argument that seemed to get anywhere at all.

21 ObiterJ July 31, 2012 at 11:19

Para 30 of the court’s judgment is not (IMHO) particularly well worded. I have discussed it on my blog.

http://obiterj.blogspot.co.uk/2012/07/the-twitter-joke-judgment-considered.html

We are developing an interesting line here as to whether a decision to prosecute would be actionable for breach of convention rights. I am open to correction but I don’t know of any case where it has been done ??? However, Carl’s reasoning seems persuasive to me.

A statutory provision has to be read in the light of convention rights. On a general reading, there would be nothing incompatible with s.127 since there are clearly situations where messages would be menacing etc. Nevertheless, the application of the section to a particular individual might be seen to breach his convention rights and the CPS Code for Prosecutors does require them to apply convention rights (para 2.6 of the Code).

I suspect that if someone takes this argument to the courts then we will be destined for the Supreme Court or beyond !! The CPS (government) would fight tooth and nail. They would argue that they must be free in all cases to prosecute on the basis of their existing tests (evidence/public interest) which are, after all, approved by Parliament.

22 Carl Gardner July 31, 2012 at 11:24

Alex,

I don’t think there’s the slightest suggestion that any lawyer here has acted unprofessionally, or that there are any grounds for legal action against any individual – perhaps you’ll think I’m being too quick to defend lawyers. We need to be clear though about the distinction between acting unlawfully on the one hand, and being guilty of any sort of misconduct on the other. The first doesn’t necessarily imply the second.

It’d be really bad for the public if that distinction were blurred. Public sector lawyers aren’t loved like NHS workers but they do important work – often helping make politicians’ flawed ideas work and often helping moderate politicians’ wilder schemes. But a common criticism of them, which often comes from politicians but also comes from the public (although without forming an image of a public sector lawyer in their minds), is that government lawyers advise in an excessively cautious, human-rights friendly, “elf “n” safety” obsessed way.

If they were subject to accusations of misconduct every time their advice proved to be wrong, we really would have an excessively risk-averse public sector.

In this particular case I do think talk about the system is appropriate – it may be Keir Starmer who got this decision wrong, but the courts also made a mess of it, no court until this latest judgment managing to reach a sensible result, and at one point the High Court being unable even to reach any result at all.

I think some blame is also located outside the legal system with Paul Chambers’s employers, too, two of whom sacked him.

23 James Medhurst July 31, 2012 at 23:45

Carl,

I agree with you that a public body can act compatibly with a statute but incompatibly with human rights. The question here is whether the CPS acting, in effect, as a litigator, can do so. This potentially has consequences for all litigators because of the duty to interpret the Human Rights Act to restrict the actions of non-state bodies.

In this case, the scope of the law was not clear. The CPS had a right, some would say a duty, to test the boundaries of that law, even if the boundaries were likely to be defined by human rights. It would be wrong for it to speculate that the law would be interpreted in a particular way and decide not to bring a prosecution based on that speculation. If its legal advisors advised it to do that, they would be breaching their professional duty to act in the interests of their clients which, in the case of the CPS, is to bring prosecutions. If they decide in advance what the law is going to be then they risk becoming judges, which is not an appropriate role for them to take.

Consider this question: the Home Office deports a terrorist suspect to a country where he is likely to be tortured. A court find that it has breached the Human Rights Act by deporting him. However, is there a further breach of the Act when the Home Office decides to spend public money to appeal against that decision? Surely not. What if the appeal is misconceived and has very little chance of success? Still no. The decision is a bad one but not an HRA breach.

This is the can of worms that I think is being opened up in this post.

24 Stephen August 1, 2012 at 00:53

@James Medhurst

I am not sure it should be the role of the CPS to prosecute cases so as to determine the scope of the law. Yes, you could argue it is in the public interest to test the law so as to ascertain its scope and meaning. But what about the impact that such an experimental strategy is likely to have on the life and career of the subject, in this case the life of Paul Chambers? We are talking about human beings here. Should they really be used as a means to an end?

Proportionality must be the key. A balancing exercise between public and private interests should guide ethical decision-making in this context. If the public interest outweighs the individual’s interest (ie has more value) then prosecute. Otherwise don’t. I doubt that ascertaining a law’s scope and meaning has sufficient value to Society to justify seriously damaging an individual’s life. Do you really think Paul Chambers deserved the consequential damage to his life simply because the CPS wanted to ascertain the scope of the law? I doubt that a balancing exercise was undertaken by the CPS in Paul’s case. I suggest the decision to prosecute was callous and disproportionate if it was taken simply because of a need to clarify a law.

@Carl Gardner
Thanks for your reply. Appreciated.

25 Matt Flaherty August 3, 2012 at 10:49

I agree with Stephen. As most of us are aware, the CPS has a formal procedure for deciding to prosecute a case. The Full Code Test consists of an evidential stage and a public interest stage. Even where there is strong and compelling evidence of a crime having been committed, the CPS actually has a duty to pass on prosecution if that prosecution would not be in the public interest. Where cases engage Article 10 ECHR as this one does, that decision should (really must) involve the proportionality test required by 10.2. If the likely harm to a defendant is greater than the likely gain to society, the prosecution should not go forward.

Carl, I’m always puzzled when I hear people saying that Paul’s employers should be taken to task for his dismissal. I would have liked to see him kept on as much as anyone else, but surely they were well within their rights to dismiss him. Any decent employment contract will feature a Gross Misconduct clause, which can usually be invoked when the employee has brought the company into serious disrepute. The manner in which Paul was arrested at his place of work and his subsequent conviction seem to support that position. He can’t be held responsible for this, but that’s beside the point. Employment law does not require a criminal standard of evidence. The second employer who let him go acted within the probationary period so they had full discretion.

26 Matt Flaherty August 3, 2012 at 10:54

Oh another thing. I’ve seen some comments suggesting that the CPS ought to be allowed to make their own mistakes and that it would be inappropriate for the DPP to account to Parliament. Comparisons have been made with the idea of judges being compelled to account to Parliament for their unwelcome decisions. I don’t see that one follows from the other. The decisions of judges in criminal cases are completely open to public scrutiny, whereas CPS decision making is not. The usual FOIA s.30(1)(c) and DPA s.40(2) exemptions apply. It is like pulling teeth trying to get them to account for their decisions. There needs to be some form of review when it goes badly wrong.

27 thelawcourt August 6, 2012 at 17:06

It would have been interesting and very controversial had the trial not acquitted Chambers. If they – hypothetically of course – thought his demeanour constituted menace, what would happen to twitter as a micro-blogging platform? The ability to interact with famous individuals is great and if they had removed this feature, it would have been oh so “interesting” 😛

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