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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What happens when a president refuses to step down?

An approaching constitutional crisis has triggered deep political unrest in the Congo.

Franck Diongo reached his party’s headquarters shortly after 10am and stepped out of a Range Rover. Staff and hangers-on rose from plastic chairs to greet the president of the Mouvement Lumumbiste Progressiste (MLP), named after the first elected leader of the Democratic Republic of Congo.

Diongo, a compact and powerfully built man, was so tightly wound that his teeth ground as he talked. When agitated, he slammed his palms on the table and his speech became shrill. “We live under a dictatorial regime, so it used the security forces to kill us with live rounds to prevent our demonstration,” he said.

The MLP is part of a coalition of opposition parties known as the Rassemblement. Its aim is to ensure that the Congolese president, Joseph Kabila, who has been president since 2001, leaves office on 19 December, at the end of his second and supposedly final term.

Yet the elections that were meant to take place late last month have not been organised. The government has blamed logistical and financial difficulties, but Kabila’s opponents claim that the president has hamstrung the electoral commission in the hope that he can use his extended mandate to change the rules. “Mr Kabila doesn’t want to quit power,” said Diongo, expressing a widespread belief here.

On 19 September, the Rassemblement planned a march in Kinshasa, the capital, to protest the failure to deliver elections and to remind the president that his departure from office was imminent. But the demonstration never took place. At sunrise, clashes broke out between police and protesters in opposition strongholds. The military was deployed. By the time peace was restored 36 hours later, dozens had died. Kabila’s interior minister, claiming that the government had faced down an insurrection, acknowledged the deaths of 32 people but said that they were killed by criminals during looting.

Subsequent inquiries by the United Nations and Human Rights Watch (HRW) told a different story. They recorded more fatalities – at least 53 and 56, respectively – and said that the state had been responsible for most of the deaths. They claimed that the Congolese authorities had obstructed the investigators, and the true number of casualties was likely higher. According to HRW, security forces had seized and removed bodies “in an apparent effort to hide the evidence”.

The UN found that the lethal response was directed from a “central command centre. . . jointly managed” by officials from the police, army, presidential bodyguard and intelligence agency that “authorised the use of force, including firearms”.

The reports validated claims made by the Rassemblement that it was soldiers who had set fire to several opposition parties’ headquarters on 20 September. Six men were killed when the compound of the UDPS party was attacked.

On 1 November, their funerals took place where they fell. White coffins, each draped in a UDPS flag, were shielded from the midday sun by a gazebo, while mourners found shade inside the charred building. Pierrot Tshibangu lost his younger sibling, Evariste, in the attack. “When we arrived, we found my brother’s body covered in stab marks and bullet wounds,” he recalled.

Once the government had suppressed the demonstration, the attorney general compiled a list of influential figures in the Rassemblement – including Diongo – and forbade them from leaving the capital. Kinshasa’s governor then outlawed all political protest.

It was easy to understand why Diongo felt embattled, even paranoid. Midway through our conversation, his staff apprehended a man loitering in the courtyard. Several minutes of mayhem ensued before he was restrained and confined under suspicion of spying for the government.

Kabila is seldom seen in public and almost never addresses the nation. His long-term intentions are unclear, but the president’s chief diplomatic adviser maintains that his boss has no designs on altering the constitution or securing a third term. He insists that Kabila will happily step down once the country is ready for the polls.

Most refuse to believe such assurances. On 18 October, Kabila’s ruling alliance struck a deal with a different, smaller opposition faction. It allows Kabila to stay in office until the next election, which has been postponed until April 2018. A rickety government of national unity is being put in place but discord is already rife.

Jean-Lucien Bussa of the CDER party helped to negotiate the deal and is now a front-runner for a ministerial portfolio. At a corner table in the national assembly’s restaurant, he told me that the Rassemblement was guilty of “a lack of realism”, and that its fears were misplaced because Kabila won’t be able to prolong his presidency any further.

“On 29 April 2018, the Congolese will go to the ballot box to vote for their next president,” he said. “There is no other alternative for democrats than to find a negotiated solution, and this accord has given us one.”

Diongo was scathing of the pact (he called it “a farce intended to deceive”) and he excommunicated its adherents from his faction. “They are Mr Kabila’s collaborators, who came to divide the opposition,” he told me. “What kind of oppositionist can give Mr Kabila the power to violate the constitution beyond 19 December?”

Diongo is convinced that the president has no intention of walking away from power in April 2018. “Kabila will never organise elections if he cannot change the constitution,” he warned.

Diongo’s anger peaked at the suggestion that it will be an uphill struggle to dislodge a head of state who has control of the security forces. “What you need to consider,” he said, “is that no army can defy a people determined to take control of their destiny . . . The Congolese people will have the last word!”

A recent poll suggested that the president would win less than 8 per cent of the vote if an election were held this year. One can only assume that Kabila is hoping that the population will have no say at all.

This article first appeared in the 01 December 2016 issue of the New Statesman, Age of outrage