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.