Tag Archives: Twitter

Jake Newsome – Another social media jailing over an Ann Maguire posting

BBC

BBC

Introduction

We looked at the case of Robert Riley who was jailed last month for tweeting offensive messaged relating to the death of Ann Maguire. Well, Mr Riley has a companion – on 4th June 2014 Jake Newsome was sentenced to six weeks in prison for a ‘malicious communications charge’. He was using Facebook rather than twitter, but the same issues are apparent.

 

Facts

As in most tweeting/social media cases the full messages aren’t published. According to the BBC – “Jake Newsome wrote that he was “glad” she had been stabbed and he “felt sorry” for the boy accused of her murder. The 21-year-old completed his post with an obscene suggestion“.

The Mirror reported that he had said ““Personally, I’m glad that teacher got stabbed up. Feel sorry for the kid. He should have p***** on her too.”

It’s not clear what the charge is. The news reports would indicate that it was under s1 Malicious Communications Act 1988, but it would be a similar outcome if it had been under s127 Communications Act 2003.

 

Comment

Firstly the sentence. The Magistrates’ Court Sentencing Guidelines are applicable (see page 40). Looking at the guidelines does not help much as they relate to telephone calls. But it would appear to have been treated by the Court as being a series of offensive messages with extreme language and a moderate impact. The increase in sentence from the starting point of six week (before the credit for a plea of guilty) may be explicable by the Court treating these messages as causing ‘substantial distress or fear’.

On that basis, the sentence is probably fair enough, if a little on the high side. The bigger question is whether he should have been prosecuted. The CPS policy on prosecution of social media offences gives four categories of messages :

  1. Communications which may constitute credible threats of violence to the person or damage to property.
  2. Communications which specifically target an individual or individuals and which may constitute harassment or stalking within the meaning of the Protection from Harassment Act 1997.
  3. Communications which may amount to a breach of a court order.
  4. Communications which do not fall into any of the categories above and fall to be considered separately (see below): i.e. those which may be considered grossly offensive, indecent, obscene or false.

(1)-(3) don’t apply clearly, so it must be that the prosecution falls to be justified under (4). On the face of the Facebook postings as we’ve set out above, it is arguable whether these are ‘grossly offensive’. Even if they are, the policy states that the case “will be subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest.

It seems that there was not any argument as to the policy in Court (and in any event there have been some fairly dodgy decisions of the Court of Appeal on this point) which is disappointing.

Is this a case that calls out for a prosecution? Is one needed in the public interest? Is it compatible with Art 10 European Convention on Human Rights? We would suggest that the answer is no to all the above. Yet again we are seeing a knee jerk reaction by the CPS to people being caused offence (which is not, and should not be, a criminal offence). It is time that the CPS were called to justify how some of the decisions to prosecute are being made in these sorts of offences.

 

Two jurors imprisoned for internet research/Facebook messages

On 23 July 2013, two men, Mr Davey and Mr Beard, were despite their protestations of innocence, found to have committed contempt of court. The transcript of that hearing is available here. On 29 July 2013, they were sentenced to two months’ immediate custody each for contempt of court.

The proceedings related to activity amounting to a real risk of interference with the administration of justice arising out of the two men’s activities whist serving as jurors in criminal trials. The two cases were unrelated save for these proceedings.

Mr Davey

Davey, aged 20 when summoned to serve on a jury, had a Facebook account with 400 friends.

On his arrival at court Mr Davey, like the other jurors, was shown the jury video. It included statements in the following terms:

“Please do not discuss the details of the trial with anyone other than your fellow jurors, not even your family.”

“Do not speak to anyone at all about the cases you hear.”

“Do not use social networking sites to post any aspects of your jury service.”

At the end of his first day at the Crown Court at Wood Green, he posted the following message to his Facebook profile:

“Woooow I wasn’t expecting to be in a jury Deciding a paedophile’s fate, I’ve always wanted to Fuck up a paedophile & now I’m within the law!”

Mr Davey was discharged and the case continued with 11 jurors. The matter was then investigated by the police.

The Court found that this constituted a contempt of court.

Mr Beard

Beard was aged 29 when summoned for jury service at the Crown Court at Kingston upon Thames. He was selected to sit on a long trial expected to last about 2 months. About 5.5 weeks into the trial, the following (taken from the transcript) came to the Court’s attention:

There were various conversations going on [amongst the jury], and in the conversation to which [Mr Sewell, a juror] was a party a question was asked as to how many investor witnesses would be heard from. One of the other members of the jury, Mr Beard, stated that the number of investors affected was about 1,800, although Mr Sewell did not recall the precise number. Mr Sewell asked Mr Beard where that figure came from as he was concerned he had missed some evidence. Mr Beard then stated that he had done a search on the internet through Google using the name of the operation and he got the figure that way. Mr Sewell then said “No, No, No, No! Don’t tell me about that. You shouldn’t have done that. I don’t want to hear about it.”

The jury was discharged. The cost of the defence amounted to £119,712 and the prosecution costs had been between £190,000 and £200,000.

The Attorney-General

The Attorney said:

Jurors who use the internet to research a case undermine justice. It creates a risk that the defendant will be convicted or acquitted, not on the evidence, but on unchallenged and untested material discovered by the juror.

Equally, the case of Kasim Davey shows that jurors must follow the directions given to them by the trial judge not to discuss the case outside the jury room, including discussions and posts on the internet.

Sentence

Both were sentenced to 2 months’ immediate custody. A transcript of the sentence is thus far unavailable. We know that no orders for costs were made.

Comment

Many on Twitter were shocked by the imposition of immediate custodial sentence. The courts take threats to the administration of justice very seriously. This can be seen by the ‘usual’ sentence for perverting the course of justice (e.g. Chris Huhne), misconduct in public office (e.g. police officers accessing the PNC for criminal purposes), perjury (e.g. Lord Archer) and contempt of court (see HM Att-Gen v Dallas).

Some are of the view that a custodial sentence is wholly unsuitable and totally unnecessary in cases like this. They cite the fact that the offenders are neither violent nor sexual offenders, and neither are ‘dangerous’ so as to pose a threat to the public.

Critics of such a view is that offences against the administration of justice must be dealt with robustly; any sentence for such an offence which is perceived as soft could mark the collapse of the system all together. Without respect for the juror’s oath or affirmation, it could become worthless. For example, if the penalty for witness intimidation isn’t that great, on a cost/benefit analysis it may be worth the risk of being caught.

Mr Davey and Mr Beard will have approximately one month in which to ponder that issue. They probably won’t make the same mistake again.

In defence of section 127 (sort of)

We read Adam’s post about the word ‘insulting’ being removed from Public Order act 1986 s 5 with interest. In it he discussed the Communications Act 2003 s 127 and how despite the amendment to section 5, section 127 means that the courts/police remain the people responsible for deciding whether a Tweet or Facebook status was grossly offensive and therefore criminal.

He posed (in bold) three key questions, the answer to each, he suggested, was ‘no’. We disagree.

First, do we really want police and judges deciding which jokes, throwaway comments and idiotic off-the-cuff remarks are ‘grossly offensive’?

The answer to this, in our opinion, has got to be ‘yes’. Firstly, the Police/CPS make the charging decision as to whether an individual should be brought before the courts to answer for his or her actions. (It may be petty, but in this scenario, it is not the police ‘deciding’ what is grossly offensive, but merely bringing their case as to what they believe to be ‘grossly offensive’). Why should grossly offensive remarks be any different?

Secondly, judges (or juries) decide what is grossly offensive in this context, just as they do when they rule on a submission of no case to answer (whether or not there is sufficient evidence to proceed against the defendant) or in directing a jury to acquit where they feel the circumstances dictate.

Thirdly, there are checks and balances in place to remedy any mischief. Were a defendant to be brought before the court for making a grossly offensive remark on Twitter, there are several stages at which that decision is examined; the CPS charging stage (whether it passes the threshold, considering the DPP’s new guidance), pre-trial hearings, trial and appeal. Whilst it is not desirable that an individual is ‘dragged through the courts’ as was the case with Paul Chambers, there are procedures in place. The Paul Chambers case is (hopefully) a one-off, the beginning of the interaction between the law and social media, and is unlikely to happen again.

There is a football analogy here; when clubs (take Chelsea as an amusing example) are considering sacking their managers, they (the press and the blokes down the pub) all too often ask the question ‘is it time for him to go?’. I suggest the correct question is in fact, ‘if we sack him, can we get someone better to replace him?’, otherwise, there seems little point. This situation is the same; the police/CPS deciding to bring cases against individuals who they believe have contravened the law, and judges deciding whether in fact they have done so, is a good system. It works well and has in place checks and balances. If there is a better alternative, We would like Adam to share it with us!

We happen to think that trial by jury is the best method of determining whether something is grossly offensive; although this has obvious cost implications, it provides a more legitimate decision as to what is grossly offensive (to the public) and it limits the degree to which commentators can criticise the developing case law and ‘line in the sand’ as to what is and is not grossly offensive.

Secondly, is there a single conviction under this law which has made society a safer, better place without unduly impinging on free speech?

Most if not all cases under section 127 are going to be concerned not with public safety (is some teenager calling a celebrity a cunt an issue of public safety?)

There will be cases where a section 127 offence is properly charged in areas that have nothing to do with free speech. A good example would be someone making threats to their former partner in a phone call that falls short of a threat to kill but should still attract the sanction of the criminal law. Or where there is such a threat, but the caller is very drunk or far away so the threat is not a serious or immediate one.

Also, one of the purposes of section 127 (see section 127(2)) was to protect the public from ‘junk mailings’. Whilst this does of course infringe on free speech, it is hard to argue that it is not a legitimate interference.

Thirdly, does s.127 add anything to the already existing criminal protections against harassment and stalking?

We think the answer to this question is yes, but in limited circumstances. Firstly, as Adam has noted previously, section 127 was enacted prior to Twitter and Facebook existing, and was in fact a re-enactment of a provision designed to criminalise grossly offensive telephone messages.

Firstly, whilst there will inevitably be some overlap in how offences are charged (robberies charged as theft and section 47, or causing the death of a child charged as manslaughter for example) section 127 will still apply to nuisance phonecalls. In R v Wood 2012 EWCA Crim 156, the defendant pleaded to public nuisance after bombarding the charity Childline with phonecalls, graphically describing how he was abusing his (fictional) daughter. This would have come under the ambit of section 127, however presumably the decision was taken to charge the common law offence of public nuisance as there is no limit on the maximum sentence. Mr Wood received 3 years. Although this is an extreme case, it is an example of the type of behaviour which whilst grossly offensive, would not be covered by harassment or stalking, as there was no fear of violence.

Where an individual might make hurtful comments via social media, perhaps about a deceased friend of loved one, that do not threaten violence or put the victim in fear of violence, it is necessary for the law to be able to deal with such an event.

It seems to us therefore that section 127 is a necessary tool for the police and CPS to have. We would not disagree with Adam that section 127 can be (and has been) misused by criminalising jokes and comments which, while unpleasant should not be criminalised. The issue where the police and CPS (and to a lesser extent the courts) draw that invisible line.

DPP issues interim guidance on social media prosecutions

Scales of justice

Today the DPP issued his interim guidance on social media prosecutions.

The guidance is available here: DPP SocMed Guide

The DPP has requested that the guidance is read and responses submitted. On a cursory glance, it looks as though the guidance largely follows a common sense approach, however there has already been disquiet on Twitter concerning the DPP’s view that ‘deeply unpopular’ messages ought to be policed (see @ajcdeane’s Tweet).

We will have a short post about the guidance up here later. In the meantime, what are your thoughts?

Retweet at your peril

On Wednesday night, the DPP spoke at the LSE on the issue of social media. This follows a series of ‘roundtables’ at which he invited some prominent legal tweeters, (with some notable absences), to proffer their thoughts on how the law can best deal with the issue of prosecutions in cases involving social media.

Here is a list of questions/discussion topics which were presented to the attendees for consideration.

At the LSE, the DPP discussed social media prosecutions and stated that he understood the anxiety of the Twitter community in relation to free speech: “It is important and the criminal threshold must be high”.

Whilst there are many issues pertaining to offences committed through social media, it is the Communications Act 2003 s 127 which has of late been the really controversial talking point.

See here for the UK Human Rights Blog post on a conviction under the Act.

See here for Adam Wagner (of UK Human Rights Blog) being interviewed by Joshua Rozenberg for BBC R4’s Law in Action, on this topic.

However, the bit that got every talking was this. Someone posed the question ‘Is it an offence to re-tweet something grossly offensive?’ to which the DPP replied, ‘you retweet, you commit an offence under the Act.’

This caused concern among Twitter users. Many state clearly in their ‘bios’ that a RT is not an endorsement, i.e. retweeting another’s tweet is not an indication that the view is shared or the content is endorsed. NEWSFLASH the DPP cares not for your disclaimer, and section 127 cares not for your intent. It states:

Improper use of public electronic communications network

(1) 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.

There is no requirement that the message was sent with the intention of it being grossly offensive, nor that there is a defence if the message is sent with a view to the original sender being dealt with by the police – why would there be? The legislation has its roots in the Post Office (Amendment) Act 1935 and was voted on in its current form prior to Twitter and Facebook even existing.

So it appears that whether you are a newspaper tweeting links to the image of Mr Barry Thew’s t-shirt (see here for a summary of his case), a fan retweeting a grossly offensive joke tweeted by your favourite comedian, or simply a do-gooder retweeting a grossly offensive tweet to enable the authorities to take appropriate action prior to the user removing the tweet, you fall foul of the Act.

Where then, does that leave you? Well, quite simply, in the collective lap of the CPS. Flip a coin…because who knows whether the charging decision will be the sensible one (Paul Chambers, Matthew Woods spring to mind). I think the DPP should be commended on what he is trying to do with social media and the law, but relying on prosecutorial discretion is not the way forward.

Can we not simply have a law which criminalises that which ought to be criminal and leaves untouched that which ought to be untouched?