The menace of section 127

The wider implications of the Twitter Joke Trial.

Last week Paul Chambers was unsuccessful in his appeal of his conviction under section 127 of the Communications Act 2003.

As I am his solicitor, and as I am a servant of the court and subject to professional rules of conduct, I cannot say more here about that particular appeal than is otherwise in the public domain. Paul is disappointed, and he is taking advice on whether to take the case further to the High Court.

Ben Emmerson QC, the leading human rights and criminal law barrister, has been instructed to advise on possible steps forward. Paul may make his decision later this week. In the circumstances, no one would really blame him if he were to just draw a line under the affair.

But what I can write about is section 127, and about why the increasing use of this provision by the police and Crown Prosecution Service (CPS) has such worrying implications for everyone who uses the internet, especially those who use social media.

Section 127 provides that it would be an offence (and thereby means that a person can be arrested, charged, convicted, sentenced, and obtain a criminal record) if a person sends "a message or other matter" which is "grossly offensive or of an indecent, obscene or menacing character" by means of a "public electronic communications network".

It is an offence which requires intention (or "mens rea" in legal jargon), though the CPS insisted for most of the Paul Chambers case that it did not. It is for the Court to determine whether the message has the sufficient grossly offensive or of an indecent, obscene or menacing character.

Current case law provides that the offence is committed when the message is sent, regardless of whether it was ever received and indeed regardless of whether, if received, it was actually found to be grossly offensive or of an indecent, obscene or menacing character. The sole arbiter of whether the message or other material is of an grossly offensive or of an indecent, obscene or menacing character is the Court, applying an "ordinary person" test. And if this test is met, then the Court may regard that mere intention to send a message of that character to be the mens rea.

What then constitutes a message or other material of a grossly offensive or of an indecent, obscene or menacing character? Well, it would appear that it is now effectively whatever the police and CPS say it is, regardless of context (including self-evident jokes and irony). This is all that would be needed for an arrest or charge. All which is then required is to get a judge to agree with them, if the defendant dares to put up a defence at risk of a higher sentence.

This uncertainty means that the offence has a worryingly low and fluid threshold. And given that the police and CPS are taking the widest possible view of what constitutes a message sent by means of a public electronic communications network (anything sent over the internet), then the potential scope of the application of this offence becomes deeply alarming.

It was not supposed to be like this. As leading telecoms lawyer and blogger Andrew Sharpe explained in May 2010, the provision in section 127 dates back to the 1930s legislation covering misuse of telephones. Its most immediate predecessor was section 43 of the Telecommunications Act 1984, which covered the "public telecommunications system".

When that provision was re-enacted in the 2003 legislation, the term "public electronic communications network" happened to be used instead. No parliamentary debate on this switch can currently be traced. There certainly seems to have been no marked legislative intention to broaden the telephone nuisance offence to be a catch-all for all electronic communications which may pass over the internet. But that is how the CPS and police are now treating it. I do not know of a single communications lawyer who is not horrified at this unexpected development.

We now have -- inadvertently, it seems -- a wide-ranging offence regarding electronic communications which can be used almost at a whim by police officers seeking easy grounds for arrest, or by the CPS wanting a convenient way to proceed with a prosecution when they cannot use other offences.

Last week, on the final day of Paul's appeal, an elected representative was arrested for an emphatic (and appropriately hashtagged) tweet in response to a disappointingly relativistic and provocative comment which had been broadcast on national radio. He was arrested under section 127. His tweet was crude and unattractive, and to his discredit, but it was simply not a matter for which someone should have been arrested.

The facts of Paul's particular case have so far dominated the discussion over section 127. However, the concerns -- indeed alarm -- which his conviction gives rise to are of far wider import.

Whether Paul takes his case to the High Court or not, we appear as a society to have reached the point where any of us can be arrested and potentially convicted just because - in effect - some official takes exception to an unwelcome electronic communication. And, if this is the case, then we have ceased to be a liberal society.

 

David Allen Green is legal correspondent of the New Statesman. He is also head of media law at Preiskel & Co LLP, who are acting for Paul Chambers.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Why the Liberal Democrats by-election surge is not all it seems

The Lib Dems chalked up impressive results in Stoke and Copeland. But just how much of a fight back is it?

By the now conventional post-Brexit logic, Stoke and Copeland ought to have been uniquely inhospitable for the Lib Dems. 

The party lost its deposit in both seats in 2015, and has no representation on either council. So too were the referendum odds stacked against it: in Stoke, the so-called Brexit capital of Britain, 70 per cent of voters backed Leave last June, as did 62 per cent in Copeland. And, as Stephen has written before, the Lib Dems’ mini-revival has so far been most pronounced in affluent, Conservative-leaning areas which swung for remain. 

So what explains the modest – but impressive – surges in their vote share in yesterday’s contests? In Stoke, where they finished fifth in 2015, the party won 9.8 per cent of the vote, up 5.7 percentage points. They also more than doubled their vote share in Copeland, where they beat Ukip for third with 7.3 per cent share of the vote.

The Brexit explanation is a tempting and not entirely invalid one. Each seat’s not insignificant pro-EU minority was more or less ignored by most of the national media, for whom the existence of remainers in what we’re now obliged to call “left-behind Britain” is often a nuance too far. With the Prime Minister Theresa May pushing for a hard Brexit and Labour leader Jeremy Corbyn waving it through, Lib Dem leader Tim Farron has made the pro-EU narrative his own. As was the case for Charles Kennedy in the Iraq War years, this confers upon the Lib Dems a status and platform they were denied as the junior partners in coalition. 

While their stance on Europe is slowly but surely helping the Lib Dems rebuild their pre-2015 demographic core - students, graduates and middle-class professionals employed in the public sector – last night’s results, particularly in Stoke, also give them reason for mild disappointment. 

In Stoke, campaign staffers privately predicted they might manage to beat Ukip for second or third place. The party ran a full campaign for the first time in several years, and canvassing returns suggested significant numbers of Labour voters, mainly public sector workers disenchanted with Corbyn’s stance on Europe, were set to vote Lib Dem. Nor were they intimidated by the Brexit factor: recent council by-elections in Sunderland and Rotheram, which both voted decisively to leave, saw the Lib Dems win seats for the first time on massive swings. 

So it could well be argued that their candidate, local cardiologist Zulfiqar Ali, ought to have done better. Staffordshire University’s campus, which Tim Farron visited as part of a voter registration drive, falls within the seat’s boundaries. Ali, unlike his Labour competitor Gareth Snell and Ukip leader Paul Nuttall, didn’t have his campaign derailed or disrupted by negative media attention. Unlike the Tory candidate Jack Brereton, he had the benefit of being older than 25. And, like 15 per cent of the electorate, he is of Kashmiri origin.  

In public and in private, Lib Dems say the fact that Stoke was a two-horse race between Labour and Ukip ultimately worked to their disadvantage. The prospect of Nuttall as their MP may well have been enough to convince a good number of the Labour waverers mentioned earlier to back Snell. 

With his party hovering at around 10 per cent in national polls, last night’s results give Farron cause for optimism – especially after their near-wipeout in 2015. But it’s easy to forget the bigger picture in all of this. The party have chalked up a string of impressive parliamentary by-election results – second in Witney, a spectacular win in Richmond Park, third in Sleaford and Copeland, and a strong fourth in Stoke. 

However, most of these results represent a reversion to, or indeed an underperformance compared to, the party’s pre-2015 norm. With the notable exception of Richmond’s Sarah Olney, who only joined the Lib Dems after the last general election, these candidates haven’t - or the Lib Dem vote - come from nowhere. Zulfiqar Ali previously sat on the council in Stoke and had fought the seat before, and Witney’s Liz Leffman and Sleaford’s Ross Pepper are both popular local councillors. And for all the excited commentary about Richmond, it was, of course, held by the Lib Dems for 13 years before Zac Goldsmith won it for the Tories in 2010. 

The EU referendum may have given the Lib Dems a new lease of life, but, as their #LibDemFightback trope suggests, they’re best understood as a revanchist, and not insurgent, force. Much has been said about Brexit realigning our politics, but, for now at least, the party’s new normal is looking quite a lot like the old one.