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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I was wrong about Help to Buy - but I'm still glad it's gone

As a mortgage journalist in 2013, I was deeply sceptical of the guarantee scheme. 

If you just read the headlines about Help to Buy, you could be under the impression that Theresa May has just axed an important scheme for first-time buyers. If you're on the left, you might conclude that she is on a mission to make life worse for ordinary working people. If you just enjoy blue-on-blue action, it's a swipe at the Chancellor she sacked, George Osborne.

Except it's none of those things. Help to Buy mortgage guarantee scheme is a policy that actually worked pretty well - despite the concerns of financial journalists including me - and has served its purpose.

When Osborne first announced Help to Buy in 2013, it was controversial. Mortgage journalists, such as I was at the time, were still mopping up news from the financial crisis. We were still writing up reports about the toxic loan books that had brought the banks crashing down. The idea of the Government promising to bail out mortgage borrowers seemed the height of recklessness.

But the Government always intended Help to Buy mortgage guarantee to act as a stimulus, not a long-term solution. From the beginning, it had an end date - 31 December 2016. The idea was to encourage big banks to start lending again.

So far, the record of Help to Buy has been pretty good. A first-time buyer in 2013 with a 5 per cent deposit had 56 mortgage products to choose from - not much when you consider some of those products would have been ridiculously expensive or would come with many strings attached. By 2016, according to Moneyfacts, first-time buyers had 271 products to choose from, nearly a five-fold increase

Over the same period, financial regulators have introduced much tougher mortgage affordability rules. First-time buyers can be expected to be interrogated about their income, their little luxuries and how they would cope if interest rates rose (contrary to our expectations in 2013, the Bank of England base rate has actually fallen). 

A criticism that still rings true, however, is that the mortgage guarantee scheme only helps boost demand for properties, while doing nothing about the lack of housing supply. Unlike its sister scheme, the Help to Buy equity loan scheme, there is no incentive for property companies to build more homes. According to FullFact, there were just 112,000 homes being built in England and Wales in 2010. By 2015, that had increased, but only to a mere 149,000.

This lack of supply helps to prop up house prices - one of the factors making it so difficult to get on the housing ladder in the first place. In July, the average house price in England was £233,000. This means a first-time buyer with a 5 per cent deposit of £11,650 would still need to be earning nearly £50,000 to meet most mortgage affordability criteria. In other words, the Help to Buy mortgage guarantee is targeted squarely at the middle class.

The Government plans to maintain the Help to Buy equity loan scheme, which is restricted to new builds, and the Help to Buy ISA, which rewards savers at a time of low interest rates. As for Help to Buy mortgage guarantee, the scheme may be dead, but so long as high street banks are offering 95 per cent mortgages, its effects are still with us.