Twitter- Chambers v DPP and Tom Daley

So, it has been nearly 5 months since my last post. The reason? I have fled the jurisdiction. Temporarily at least. I decided a change of scenery was in order so packed my wig and gown and headed off to the Middle East. I'm not sure how long I will stay out here but I have no doubt that I will return to the UK at some point.
The realisation that I had not updated my blog in such a long time only dawned on me yesterday amid the furore surrounding the tweets sent to Olympic Diver Tom Daley by some 17 year old boy who clearly had nothing better to do with his time than to hurl insults to someone who has clearly achieved more in his youth than this particular individual has or will ever do.

However, let us rewind a few days where Twitter was once again under the scrutiny of the lawyers following the Lord Chief Justice's Judgment in the case of Chambers v DPP [2012] EWHC 2157. In that case, the Crown Prosecution Service considered it prudent to charge Mr Chambers with an offence under s.127 of the the Communications Act 2003 after he had tweeted the following message to his girlfriend:

"Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!"

Remarkably, not only was Mr Chambers charged, he was also convicted by the Magistrates' Court (a District Judge no less) and his appeal to the Crown Court was unsuccessful. Thankfully, the Lord Chief Justice, sitting in the Divisional Court, quashed the conviction. Quite apart from making the obvious observations that the tweet in question was (a) as far as Mr Chambers was concerned clearly meant as 'a joke' to his other half , (b) was not in any event sent directly to the airport, and (c) once brought to the attention of airport security had been deemed as 'non-credible', the LCJ observed at para 30 that:

"...After all a message which cannot or is unlikely to be implemented may nevertheless create a sense of apprehension or fear in the person who receives or reads it. However unless it does so, it is difficult to see how it can sensibly be described as a message of a menacing character. So, if the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably expected to see it, falls outside this provision, for the very simple reason that the message lacks menace."

The Judgment was undoubtedly a victory not only for Mr Chambers, but also for common sense. Earlier in the Judgment, the LCJ observed, at paragraph 28, that:

"The 2003 Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation."

Fast forward a couple of days where, three days into the Olympics, Tom Daley and Peter Waterfield come fourth in the synchronised diving. Tom tweets as follows:

"After giving it my all...you get idiot's sending me this...RT @Rileyy_69: @TomDaley1994 you let your dad down i hope you know that."

Tom's dad having died of cancer, this comment was undoubtedly intended to be hurtful. Unsurprisingly, Tom's fans (as well as those who were just appalled by what had been said) rallied to his defence and a Twitter campaign that @Rileyy_69 be banned from Twitter ensued. Undeterred, @Rileyy_69 continued with abuse such as "hope your crying now you should be why can't you even produce for your country your just a diver anyway a over hyped prick" and "sit you ass back down tommy and don't get on a diving board again my little brother could do better absolute waste of space."

However, once Tom's fans rallied together and a Twitter war was waged, @Rileyy_69 changed his tune:

"I'm really sorry :("

"Please I don't want to be hated I'm just sorry you didn't win I was rooting for you pal to do britain all proud just so upset."

The next day, the BBC reports that:

"A 17-year-old boy was arrested at a guest house in the Weymouth area on suspicion of malicious communications.

Dorset Police said they acted after being contacted by a member of the public at about 22:30 BST on Monday.

A spokesman was unable to confirm whether the arrest was specifically over the tweets to Daley or subsequent Twitter conversations with other users."

In the meantime, various people (including lawyers) were expressing their views on Twitter and through writing blogs about what had happened. A number of lawyers expressed the view that they were 'surprised' how the attitudes of people change in so short a space of time, i.e, how the public had only days earlier welcomed the Judgment of the LCJ in Chambers but were now horrified by what had been said by @Rileyy_69.

To be honest, lawyers should know better. The two cases are hardly comparable. Yes, they both involved the medium of Twitter but the similarities end there. In Chambers, the 'non-credible' threat had been aimed at Mr Chambers' partner, not the airport and was, on any sensible reading, a joke. @Rileyy_69 on the other hand chose to fling abuse at Tom directly. There was nothing funny about the content. There was no joke. He was simply being abusive. I've read two legal blogs so far which suggest that these comments were likely to be no more than a 17 year old venting frustration at the fact that Tom missed out on securing an olympic medal and who clearly regretted his actions as demonstrated by his public apology. That explanation does not, I'm afraid, stand up to scrutiny. First, a lot of people may have been upset that Tom didn't secure a medal but they certainly did not decide to tell him so in such a manner through the public medium of Twitter. Second, if one cared to look at @Rileyy_69's other, unrelated tweets, (as I did) it would have been immediately obvious that this particular Twitter user thinks nothing of using Twitter as a means to hurl insults and threaten violence to others. In fact the comments made to Tom were mild compared to other things @Rileyy_69 had said. Third, the idea that the apology amounted to anything more than an attempt to avoid getting into trouble is laughable. This is because (a) @Rileyy_69 had an established history of using vile and offensive language and (b) the apology only came after people had rallied in support of Tom and were trying to get @Rileyy_69 banned.

Whether this whole affair results in a court appearance nobody yet knows. Certainly if Mr Chambers warranted being charged, this particular Twitter user does. However, the police and the CPS will no doubt have the Lord Chief Justice's Judgment firm in their minds and will wish to carefully reflect upon it before they rush to make a charging decision.

Anyhow, it will be interesting to see what happens.

I will also make more of an effort to update my blog whilst I'm out here!

The End of the Week

It's been quite a long week and I must confess that I am relieved that the weekend is here. On Wednesday I had a couple of PCMHs at the Crown Court followed by a conference with a client who is charged with a rather serious drugs offence that is coming up for trial in June. Nothing out of the ordinary happened. On Thursday, however, I had a private driving trial to defend in the Magistrates' Court. The allegation was failing to comply with a traffic sign. The traffic sign in question is such that, even if convicted, the Defendant's licence is safe from any form of endorsement. The trial should have been easy and problem free. However, whilst at court, an issue arose which resulted in the trial being vacated and, would you believe, the need for me to be called as a defence witness. I best not go into the particulars but suffice it to say I'm quite looking forward to my witness debut. I'll update you once the trial has been and gone. Anyway, the weekend is upon us and so I shall allow you all to enjoy it!

Radio Silence and Contempt of Court

So, my apologies for not updating my blog recently but I've been involved in a trial at the Crown Court which only came to an end on Thursday. I'm far from convinced that the jury came to the right conclusion but I'll say no more about that. What is slightly more entertaining is what happened on Friday when I was asked to cover a trial at the Magistrates' Court. A straightforward Common Assault where the complainant and the defendant had at one time been in a relationship together. She alleged that the defendant had punched her; he denied it. Everyone turns up at 10am ready for a trial but in fact the court had listed the case for 2pm but hadn't thought to tell anyone. Anyhow, I'm sitting in the advocates' room when I notice some paramedics in the public area. I look out the door to see what's happening. It transpires that the complainant in my case was drunk and that the witness service had called an ambulance as they were concerned about her. She, however, had other ideas and refused to go with them. She did, however, leave the court building saying she would return later. True to her word, she returned at about 2:30pm having, it appeared, consumed more alcohol in the interim. There was a fracas at the front desk involving security, the complainant and some other people but eventually the officer in the case, with the assistance of the prosecutor, managed to usher her into the witness room. Now at this point you're probably thinking 'well surely the Crown are not going to call this witness?' A rational thought, but you'd have thought wrong. The trial is called on and in the complainant stumbles. She can barely take the oath and she leans on the witness box before slumping into a seat. The prosecutor carries on as if nothing out of the ordinary has happened and begins to ask questions. She hasn't got a clue. She can't remember the date or what happened. With some prompting she manages to utter the words 'he walloped me and I walloped him back but only he got arrested'. When the prosecutor attempts to further question her, she begins to swear and shout and starts to leave the witness box- heading for the door. The Chairman of the Bench tries to calm the situation but to no avail. Her choice of words has now become quite choice and the Chairman has had enough. Contemplating contempt proceedings, he orders the jailer to come up from the cells and take her away- which he does whilst trying to keep a smile from his face as her verbal abuse, now directed at him, continues. I then head off to the advocates' room to see if I can find a solicitor to advise her regarding the contemplated contempt proceedings. Meanwhile, the prosecutor is on the phone to the Borough Prosecutor trying to ascertain what to do. Unbelievably, you might think, the prosecution crack on with the trial and recall her to finish her evidence once the court has dealt with the issue of contempt. My cross examination only sought to set her off again so I kept it as short as practically possible. Finally she left the court-room never to return. Or so we all had hoped. I call the defendant to give evidence which he does. During the course of it, however, the complainant makes a return visit, as indeed does a 'random' member of the public who also joins in with a chorus of abuse of his own. Both are escorted from the building by the officer in the case. The defendant is acquitted and all's well that ends well. The Chairman, who had coped very well with all that had happened, thanked Counsel and remarked that at one point he thought he and his colleagues were being set up- one assumes in some sort of Beadle's About come Punk'd spectacular. I have to say, the very same thought had occurred to me. However, as there was no sign of the ghost of Jeremy Beadle or the boyish charm of Ashton Kutcher, I can only assume that Friday was nothing more than one of those days...

Conspiracies

I had an interesting s.51 hearing in the Magistrates' Court today- a chap charged with conspiracy to conceal criminal property, namely hundreds of thousands of pounds. The police investigation seems to have taken months although, notwithstanding that, the most the Crown could give me today was a charge sheet and case summary. Not that that bothered me particularly as the chap was on bail and thus there was nothing to achieve until the preliminary hearing in the Crown Court which, rather ambitiously, has been listed for next week. I doubt very much whether the Crown's case will be in order by then but we shall wait and see.

On another note, a point of interest arose today which is worthy of a mention. It concerns good old case management in the Magistrates' Court. Whilst I was waiting to get on today, a man pleaded not guilty to an offence of common assault. His advocate was asked by the Magistrates, at the instigation of the Legal Advisor, to agree the interview summary by way of section 10 admission. "I can't do that" said that advocate, "I haven't listened to the tape so don't know if it's accurate." The response from the Bench was truly bizarre- "well your client must know whether or not that was roughly what he said". "Roughly what he said"?! I mean, what is going on here? How negligent would you have to be to agree such an interview summary on the basis that it may 'roughly' reflect what your client said in interview? Police interviews are very important as everyone can appreciate- they are the first opportunity the suspect has to put forward an account if he or she wishes to do so and here we are, at court, being asked to agree a quarter of a page summary which may or may not accurately reflect what was said. For my part, I can say with certainty that I will never ever agree such an interview without first being sure that it is a true representation of what was said. I sincerely hope advocates don't find themselves in situations where they are being pressured into making admissions without first seeing or hearing the evidence. Don't allow yourselves to be bullied!

Psychiatrists and Paracetamol

What a start to the week it has been. I attended the Crown Court yesterday for what should have been a straightforward mention hearing. The Defence had, on an earlier occasion, raised issues concerning the Defendant's fitness to plead and, as a result, two psychiatric reports were obtained. One report concluded that the Defendant was certainly unfit to plead, the other was less conclusive and contained information about the Defendant which one certainly wouldn't want to put before a court. Accordingly, the first report was served and the second was not- the position was explained to the Judge at the PCMH and prior authority was granted by the LSC for a third psychiatrist to prepare a report and thus see where the balance of opinion lay. Judge 1 saw no problem with this approach and made directions accordingly. Today, however, the matter came before Judge 2 who took a quite contrary view. He opined that the Defence should serve the second report. This request was refused. Consequently, and some may think there was a bit of 'sour grapes' involved, the Judge purported to withdraw the LSC funding that had been previously granted for the third psychiatric report. As a result, the matter was put over to today for arraignment. As you can imagine, I was most upset by this turn of events and spent my Monday evening preparing a skeleton argument setting out why I believed that the Judge's direction was unlawful and why what had happened was tantamount to an abuse of process.  I don't usually get headaches but I had one last night. However, two paracetamol and a bottle of water later, I finished my skeleton argument and went to bed.

The Judge had thus far won the battle, but I was prepared to win the war. I went to court this morning ready for a showdown but I was to be disappointed (whilst at the same time being relieved). I served my skeleton argument first thing and gave the Judge time to consider it. When he came in to court he apologised for what had transpired the previous day and withdrew his order. He was extremely gracious about it and that made me feel much better. I had gone away from court the day before feeling pretty deflated and the rest of my Monday had been ruined as a result of having to consider and prepare for a further round the following day. However, the matter has now been resolved and I can move on. I have a sneaking suspicion that this particular case may yet cause further difficulties in the future but we'll wait and see.

On a brighter note, it's Shrove Tuesday today which means pancakes for dinner. Always a delight.

You have to laugh...

The end of the week is near. I started the day with a trial which didn't get off the ground- the Crown ended up offering no evidence on a charge which, if even it had gone to trial, they would never have been able to prove. I sometimes wonder who, if anyone, reviews these cases. Anyway, I got back to Chambers fairly early and was preparing for a trial coming up next week when I got a phone call at 3:30pm. It was my clerk. "Sir" he began. Now when your clerk calls you 'Sir', it usually means that they are about to ask you something which they know you're not going to be happy about. "Do you mind heading up to the Magistrates' Court. There's someone in custody and all the lawyers have gone." So off I go. I get there and speak with the prosecutor. The Defendant is facing an indictable only offence and so will be sent forthwith to the Crown Court. A cursory reading of the papers reveals, among other things, that he is said to have jumped from the top of  a three story building in an effort to make good his escape. I go down to the cells and spot him straight away sitting on a bench with his leg completely in plaster. I decide to avoid any questions about the leg. I take instructions regarding bail and head straight back up to court- it now being gone 5pm. The Crown, predictably, object to bail. I take one look at the Defendant and say "look at him- he's not going to commit further offences, he can hardly walk." This one-liner seems to do the trick and he was released with a stern warning from myself to behave. I never know if that has any effect at all but it's worth a go. Him and his family seemed to take a shine to me, so hopefully I'll see them all again in the Crown Court. Well it's late and I must go. Friday tomorrow which is always a bonus.

Valentines Day

Far from receiving a card with "I love you" emblazoned across it, this morning I was handed a glossy brochure which contained the names and photographs of two youths- underneath the pictures were the words "The Courts have issued them with an Interim Anti-Social Behaviour Order". Happy Valentines Day indeed. I wasn't sure what to make of said piece of literature. On the one hand, I don't care that these two boys have been given interim ASBOs, on the other I'm questioning whether or not it's right to send round the names and photographs of people who are under 18 and broadcasting to the public that they have been given interim ASBOs. I mean, quite apart from anything else, the court hasn't even made a final determination on the matter- it's an interim order and yet all and sundry in the local area are being told about it. Is this right? I'm debating whether to investigate the matter further. I mean it has nothing to do with me at all but that doesn't usually stop me from interfering. I think I had better investigate the legality of such distributions for my own peace of mind if nothing else. Sad really. Anyway, on a related point, my ASBO hearing today hasn't started owing to an overburdened list. Hopefully we'll get going this afternoon although it wouldn't surprise me if we end up being adjourned.