Law and Lawyers: 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 in 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 the requirements: 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.

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 they are 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:

Clearly, this section 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 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).

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.

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" but did so without considering the nature of modern communications media, how individuals use them and the considerations arising under Article 10.

The Woods case:

It appears that Mr Woods was legally advised and represented - (unfortunately, many 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."? This guidance is therefore far from easy (if not actually impossible) 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.

The guideline does however offer 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."? I would argue 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 into account, Mr Woods has probably been harshly treated 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.

Source: http://obiterj.blogspot.com/2012/10/tweets-facebook-go-to-jail.html

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