Friday, 12 October 2012

Tweets, Facebook ~ Go to Jail

Earlier this year, the conviction of Mr Paul Chambers was quashed by the High Court.  Mr Chambers had been found guilty of an offence under section 127 of the Communications Act 2003. The quashing of Mr Chambers' conviction was hailed as a victory for free speech and the High Court's judgment illustrated some of the problems inherent in the interpretation of section 127 and its application to cases where stupid or ill-considered remarks are placed on modern social media such as Twitter.  Earlier posts - The Twitter Joke judgment considered and Paul Chambers wins the appeal.

Recent cases:

This week, two more cases under section 127 came up for sentencing in Magistrates' Courts.



At Huddersfield Magistrates' Court, Mr Azhar Ahmed was sentenced to a 2 year Community Order with requirements of - 2 years supervision with the Probation Service; a High level Activity Requirement for 50 days, which will include the Think Again programme; and 240 hours Unpaid Work in the community.  His case was dealt with by a District Judge (Magistrates Courts) who issued formal sentencing remarks which were made publicly available via the Judiciary website - here.  That is actually a demanding package of requirements.

At Chorley Magistrates' Court, Mr Matthew Woods was sentenced to 12 weeks imprisonment.  This case was dealt with by a bench of magistrates who quite plainly took a very dim view of comments placed on Facebook by Mr Woods.  The comments concerned the missing 5 year old child April Jones.  However, as is the normal practice in Magistrates' Courts, any sentencing remarks were stated in open court but not subsequently published.  Some media reports are available - e.g. BBC and The Guardian and these indicate some of the comments made by Woods but also state that there were other comments of a a more sexually explicit nature but omit to give details.  The sentencing bench will presumably have had knowledge of all the remarks.

Section 127:

A person is guilty of an offence if he -
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.

Article 10:

Section 127 is a limitation on freedom of expression and therefore engages Article 10 of the European Convention on Human Rights - Freedom of Expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartialityof the judiciary.

In democratic nations, freedom of expression (which includes freedom  of speech) is a particularly prized right.  For example, in the USA, the First amendment to the Constitution states - "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The common law in England also placed considerable emphasis on freedom of speech.  In Attorney-General v Guardian Newspapers (No 2) [1988] 3 All ER 545, 659 Lord Goff said that "... we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world."   Freedom of speech was recognised in English common law long before either the European Convention on Human Rights or the Human Rights Act 1998.  Under the common law approach, freedom of speech gave way if there was a law inhibiting it - e.g. the law of defamation.  Under the European Convention, freedom of expression is a right guaranteed and is subject only to exceptions which can be properly based on Article 10(2).  Despite these "protections", it is arguable that there are now far more limitations on free speech than at any time in our history.

The nature of "social media":

Technology has revolutionised communication.  The internet and mobile telephones offer methods of communication which are readily available, easy to use and are more akin to ordinary speech.  A particular feature is that messages can often be seen by many people who might dislike the message even if it was not directed at them personally.  Users of media such as Twitter and Facebook often feel less inhibited about what they write than they might feel if writing a letter and they may even feel free to say things which they would not say in ordinary conversation.


The difficulty here is how far should the law be used to punish comments which are stupid and ill-considered but which, once placed on social media, happen to cause offence to some people.

In everyday life, we impliedly consent to minor physical contacts with other people if we go into a crowded place.  Maybe we also impliedly consent to seeing some remarks on social media which we find unacceptable?   It is practically impossible to completely "police" social media and so it seems reasonable to suggest that users of such media have to take the rough and tumble of it at least up to a point.  The problem is - where is that point?  How is it to be defined?

As things stand, section 127 defines (somewhat vaguely) that point but all that really happened in 2003 was that Parliament expanded the scope of the law from just telephone systems to "public electronic communications networks" and did so without considering the nature of modern communications media, how individuals use them and the considerations arising under Article 10.  [Note: Facebook came "online" in 2004 and Twitter in 2006].

The Woods case:

It appears that Mr Woods was legally advised and represented - (unfortunately, due to legal aid restrictions, many defendants before Magistrates Courts will not be so lucky these days).  Mr Woods pleaded guilty to the offence and so we have to take it that he accepted all the elements of the offence including the "grossly offensive" nature of the remarks and also the mens rea required.  Having pleaded guilty he was entitled to a discount on sentence.

The sentencing court has to consider the principles of sentencing set out in the Criminal Justice Act 2003 and also every court is under a statutory obligation to follow any relevant Council guideline unless it would be contrary to the interests of justice to do so.

The CJA 2003 sets out the purposes of sentencing (section 142); determining seriousness (section 143); reduction in sentence for guilty pleas (section 144); general restrictions on custodial sentences (section 152) and general restrictions on length of custodial sentences (section 153).  In particular:

The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence - section 152

and

the custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it - section 153.

There are some guidelines for section 127 - see Magistrates' Courts Sentencing Guidelines page 42.

Unfortunately, this guidance appears to be written in relation to telephone calls since it refers to "calls" and the "receiver."  The guidance is therefore far from easy to properly apply to material placed on Facebook.  

For example, the guidance states that for a first time offender pleading NOT guilty and where there is a "single call where extreme language used and substantial distress or fear caused to receiver;...", the starting point is 6 weeks custody but with a sentencing range of High level community order to 12 weeks custody.

Telephone calls are of course directed at the receiving person whereas comments on Facebook are usually disseminated more widely but are not necessarily directed at any specific individual(s).

The guideline does however give the indication that the language used had to be "extreme" before custody would be appropriate.  This clearly seeks to reserve custody for only the most serious cases.

Did Woods' case reach the custody threshold?  Interestingly, the District Judge sentencing Azhar Ahmed thought that his case did reach the custody threshold but the judge felt able to step back and impose a 2 year community order.

The facts of Woods' case are different to those in Ahmed.  Woods placed quite a few messages on Facebook but the messages do not seem to have been targeted at any specific individual(s) even though some people were offended by them.  Looking at CJA 2003 s.152  can it clearly be said that the offence is "so serious" that " neither a fine alone nor a community sentence can be justified for the offence."  Probably not.  If this is right, the court should then have been able to impose a community sentence on Mr Woods perhaps on similar lines to those imposed on Mr Ahmed.

In summary, we have here an offence basically designed for telephone communications but extended in 2003 to "public electronic communications networks" but without proper thought for the Article 10 (freedom of expression) implications.  The sentencing guidelines appear to be written for telephone communications and offer minimal help in sentencing a case such as Woods.  Taking all that we know into account, Mr Woods seems to have been harshly dealt with and, of course, he has the right to appeal his sentence to the Crown Court.

The DPP:

It is reported that the Director of Public Prosecutions is considering issuing guidance about prosecutions for this offence and he has already held a meeting with various lawyers who have particular interest in this area of the law.  It seems that a public consultation will take place.

Whether there should even be such guidelines is a serious question.  On this, I recommend the podcast on CharonQC's blog where John Cooper QC discusses the problems arising in this area.

Addendum:

Mr Woods' sentence was reduced on appeal to the Crown Court - BBC 31st October

15 comments:

  1. The First Amendment does not apply to the UK. To call Britain a democracy is I think taking things too far. Low turn out at elections, free speech stifled (Critical mass 100 cyclists arrested at opening of Olympics, I could go on). Azhar held beliefs that many do not - he was guided by his faith. Woods is a mere RIP troll. Guidelines? Check out the upcoming Ched Evans Twitter trial. If they can find a dock to hold 24 people.

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    1. Mention of 1st amendment is just an illustration - I am well aware that it does not apply in UK.

      We have some serious governmental problems in this country but to say we are not a democracy is, in itself, probably taking things too far.

      Low turnout at elections - I entirely agree.

      Free speech stifled - also agree that there are examples of excesses by the Police.

      Will hopefully follow the Ched Evans matter as it develops.

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    2. Did not mean to jump on you regarding 1st Amendment. As for my point on democracy it was demonstrated by Police Fed telling us which MPs we can and can't have (Mitchellgate).

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    4. I think that the Sutton Coldfield electorate are down to earth enough to make up their own minds whether they want Mr "Thrasher" Mitchell to continue representing them. I see that in 2010 - on a 67.9% turnout - he polled 54% of the vote - 27303 votes with Labour next on 10298

      I have some difficulty seeing why those Police Officers would lie since making a complaint against a senior politician is actually quite a bold step for any officer to take.

      It is said that the officers accepted an apology. If so, I hope that it was a genuine acceptance and not done "under orders." (It was reported that the Cabinet Secretary spoke to the Met Police Commissioner) - see Telegraph. Somehow Mr Mitchell seems to have been able to get to speak on the 'phone to the officers. That's not usually easy to achieve for ordinary citizens who might also wish to apologise for something they have said.

      We'll see whether more comes of it. This is not a political blog but I note that members of the Conservative Party are not especially happy about Mitchell at the moment and it is therefore possible that he might get the push anyway or get moved into some other job!

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    5. Law and politics often go hand in hand. As to your opening remark, police mendacity has a proven track record in your country. Recall 1979? The Pol Fed "could not work with" a Lab govt under Foot or Kinnoch. This whole Mitchellgate thing has a nasty undertone. Plebs they are so what is the kerfuffle?

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    6. There is a lengthy track record of police mendacity in your country. Oh and recall 1980 and the Pol Fed saying they "could not work with" Labour under Foot or Kinnock?

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  2. It is clear that S127 did not, an in all fairness could not, envisage the growth and integration of social media into everyday usage.

    We now have a situation where an individual could be prosecuted for a tweet, whereas, if the same individual were to speak the same words to a friend nothing more would come of it. It appears that S127 has created a hierarchy of communication in which certain forms of communication are privileged.

    "grossly offensive" may as well read a statement made which the popular press disagree with. It would be interesting to see if explicit racist or homophobic comments would gain the same level of media coverage.

    Interestingly the racist twitter comments made regarding Fabrice Muamba were dealt with (as I suggest more appropriately)under S4A Public Order Act.

    Would it be more suitable to utilize public order offences? The creation on an electronic public order offence would simplify this area of the law and more accurately reflect the role of social media within society. It would also fit more comfortably with Article 10.


    In a society where social media is a primary form of communication it is dangerous for it to be subject to legislation that is not fit for this specific purpose.

    Ultimately, a public consultation ought to take place to ensure that as a society we get a say in how(if at all)we wish regulate social media. Where those wishing to restrict the freedom of speech can outline the justification they purpose for the restriction of Article 10.

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    1. Fair comment Martin - Facebook did not come until 2004 and Twitter 2006. However, when Parliament "updated" this offence they really did not bother to consider Article 10 in any detail. Again, in fairness to the politicians, they probably thought that the words "grossly offensive", "indecent", or "menacing" would be sensibly interpreted by Police, CPS and Courts and the HRA 1998 requires courts to consider Article 10.

      In appropriate cases, public order offences can and will be used - as in the Fabrice Muamba twitter case.

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  3. Just as a side thought, if a Tweeter has a protected account (so that only chosen people can see the protected tweets), would a prosecution for "gross offence" arising from a protected tweet come into conflict with Article 8's Right to respect for private life? After all, such a tweet must have been intended to be private and hence must enjoy additional protection (both Articles 8 and 10)?

    Extending this, might the judiciary make a declaration of incompatibility if prosecutions under the Communications Act 2003 clash with Article 8 or Article 10?

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    1. The actus reus (guilty act) of the s.127(1) offence is merely sending a message which is (viewed objectivel) grossly offensive. A mental element also has to be proved and, based on the Twitter Joke case, this would appear to be along the lines of:

      The mental element of the offence is satisfied if the offender is proved to have intended that the message should be of a grossly offensive character (the most serious form of the offence) or alternatively, if he is proved to have been aware of or to have recognised the risk at the time of sending the message that it may be considered to be grossly offensive by any reasonable member of the public who reads or sees it.

      Remember that Article 8 and 10 rights are not absolute and the State is entitled to impose restrictions on those rights provided the restrictions are permitted by the Article.

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    2. It seems strange to make a crime out of an act that does no one any damage. It seems the State is now attempting to regulate normal social intercourse between individuals, and people seem to blindly accept it. It's a Nanny State, which seeks to insulate people from offence, and is a paving slab on the road to Totalitarianism.

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