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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Inside Big Ben: why the world’s most famous clock will soon lose its bong

Every now and then, even the most famous of clocks need a bit of care.

London is soon going to lose one of its most familiar sounds when the world-famous Big Ben falls silent for repairs. The “bonging” chimes that have marked the passing of time for Londoners since 1859 will fall silent for months beginning in 2017 as part of a three-year £29m conservation project.

Of course, “Big Ben” is the nickname of the Great Bell and the bell itself is not in bad shape – even though it does have a huge crack in it.

The bell weighs nearly 14 tonnes and it cracked in 1859 when it was first bonged with a hammer that was way too heavy.

The crack was never repaired. Instead the bell was rotated one eighth of a turn and a lighter (200kg) hammer was installed. The cracked bell has a characteristic sound which we have all grown to love.

Big Ben strikes. UK Parliament.

Instead, it is the Elizabeth Tower (1859) and the clock mechanism (1854), designed by Denison and Airy, that need attention.

Any building or machine needs regular maintenance – we paint our doors and windows when they need it and we repair or replace our cars quite routinely. It is convenient to choose a day when we’re out of the house to paint the doors, or when we don’t need the car to repair the brakes. But a clock just doesn’t stop – especially not a clock as iconic as the Great Clock at the Palace of Westminster.

Repairs to the tower are long overdue. There is corrosion damage to the cast iron roof and to the belfry structure which keeps the bells in place. There is water damage to the masonry and condensation problems will be addressed, too. There are plumbing and electrical works to be done for a lift to be installed in one of the ventilation shafts, toilet facilities and the fitting of low-energy lighting.

Marvel of engineering

The clock mechanism itself is remarkable. In its 162-year history it has only had one major breakdown. In 1976 the speed regulator for the chimes broke and the mechanism sped up to destruction. The resulting damage took months to repair.

The weights that drive the clock are, like the bells and hammers, unimaginably huge. The “drive train” that keeps the pendulum swinging and that turns the hands is driven by a weight of about 100kg. Two other weights that ring the bells are each over a tonne. If any of these weights falls out of control (as in the 1976 incident), they could do a lot of damage.

The pendulum suspension spring is especially critical because it holds up the huge pendulum bob which weighs 321kg. The swinging pendulum releases the “escapement” every two seconds which then turns the hands on the clock’s four faces. If you look very closely, you will see that the minute hand doesn’t move smoothly but it sits still most of the time, only moving on each tick by 1.5cm.

The pendulum swings back and forth 21,600 times a day. That’s nearly 8m times a year, bending the pendulum spring. Like any metal, it has the potential to suffer from fatigue. The pendulum needs to be lifted out of the clock so that the spring can be closely inspected.

The clock derives its remarkable accuracy in part from the temperature compensation which is built into the construction of the pendulum. This was yet another of John Harrison’s genius ideas (you probably know him from longitude fame). He came up with the solution of using metals of differing temperature expansion coefficient so that the pendulum doesn’t change in length as the temperature changes with the seasons.

In the Westminster clock, the pendulum shaft is made of concentric tubes of steel and zinc. A similar construction is described for the clock in Trinity College Cambridge and near perfect temperature compensation can be achieved. But zinc is a ductile metal and the tube deforms with time under the heavy load of the 321kg pendulum bob. This “creeping” will cause the temperature compensation to jam up and become less effective.

So stopping the clock will also be a good opportunity to dismantle the pendulum completely and to check that the zinc tube is sliding freely. This in itself is a few days' work.

What makes it tick

But the truly clever bit of this clock is the escapement. All clocks have one - it’s what makes the clock tick, quite literally. Denison developed his new gravity escapement especially for the Westminster clock. It decouples the driving force of the falling weight from the periodic force that maintains the motion of the pendulum. To this day, the best tower clocks in England use the gravity escapement leading to remarkable accuracy – better even than that of your quartz crystal wrist watch.

In Denison’s gravity escapement, the “tick” is the impact of the “legs” of the escapement colliding with hardened steel seats. Each collision causes microscopic damage which, accumulated over millions of collisions per year, causes wear and tear affecting the accuracy of the clock. It is impossible to inspect the escapement without stopping the clock. Part of the maintenance proposed during this stoppage is a thorough overhaul of the escapement and the other workings of the clock.

The Westminster clock is a remarkable icon for London and for England. For more than 150 years it has reminded us of each hour, tirelessly. That’s what I love about clocks – they seem to carry on without a fuss. But every now and then even the most famous of clocks need a bit of care. After this period of pampering, “Big Ben” ought to be set for another 100 or so years of trouble-free running.

The Conversation

Hugh Hunt is a Reader in Engineering Dynamics and Vibration at the University of Cambridge.

This article was originally published on The Conversation. Read the original article.