19 September 2010

On Scotland & the #TwitterJokeTrial...

One of the ways in which Scotland and England's distinct legal histories finds expression is our respective criminal laws and the distinct institutions charged with their enforcement. Indeed, it is a little known fact, but the history of public prosecution in both countries differs quite substantially. While a unified English and Welsh Crown Prosecution Service was only created in 1986, pre-dated by an emphasis on private agents bringing criminal actions (the police in such instance often being the "private" individuals), the public prosecution of crime in Scotland by Lords Advocate and their procurators fiscal has a far longer history. That distinctiveness is some comfort - but cauld - as our respective prosecutors are certainly equally capable of fouling up or of advancing unnecessary prosecutions predicated on the worst of legal legerdemain. Today it is the turn of England and Wales.

Some of you may be familiar with David Allen Green, an English lawyer who blogs at Jack of Kent. Of late, he has been covering in detail - and I believe is involved in - an imminent appeal by a chap called Paul Chambers, who has suffered for the chronic stupidity at the hands of the  police, the CPS and the first instance court, turning an unjust prosecution into an unjust punishment. What, pray, did this villain do? What wicked feat warranted all this concerted punitive effort? Its simple, really. Horrifically simple. A frustrated Chambers made a jest in 140 characters or fewer on Twitter. Specifically, he said:

"Crap! Robin Hood Airport is closed. You've got a week... otherwise I'm blowing the airport sky high!"

The full facts are set out over at Jack of Kent. After a legal process with more than a few wends and weaves, Chambers was convicted and loaded with fines and costs amounting to £1,000 and according to Mr Green, has lost two jobs as a result of the CPS' case. Green makes an admirably clear argument about why the "Twitter Joke Trial" case matters. I also commend this treatment of the subject by Glenalmond College's prodigal son Charon QC to you. Like Charon, I wish Mr Chambers every success with his appeal in Doncaster Crown Court. I know very little about English criminal jurisprudence, however it seems to me that the CPS' argument that no mens rea - no criminal intention - is necessary to bring home a conviction under section 127 of the Communications Act 2003 is profoundly dubious. Let's hope that the judges in the Doncaster court sympathise with that assessment.

The case did send my suspicious mind scurrying northward, however and back to the theme of some earlier posts here this week on the criminalisation of domestic abuse in Scotland. After the High Court of Justiciary's judgement in David Hatcher v. Procurator Fiscal, Hamilton, a lacuna opened in our criminal law and non-assault domestic abuse was temporarily legalised. Since, I've been agitating for that lacuna to be recognised and secondly, for that lacuna to be briskly closed. The most obvious way of doing so is for Scottish Ministers to bring a single new offence, passed by Holyrood in the Criminal Justice and Licensing Act 2010 into effect. As I noted on Thursday, Fergus Ewing signalled to the Scottish Women's Aid conference that it was Ministers' intention to do so, and commence the offence's operation from the 6th of October. I've managed to convince Liberal Democrat Justice Spokesman, Robert Brown, to table a parliamentary question in Holyrood to publicly confirm that statement. All well and good. However, for myself, I do have some qualms about the offence as drafted. For those of you who don't keep the whole section suspending in your consciousness, here is what Holyrood passed:

38 Threatening or abusive behaviour

(1) A person (“A”) commits an offence if—
(a) A behaves in a threatening or abusive manner,
(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and
(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.

(2) It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.

(3) Subsection (1) applies to—
(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and
(b) behaviour consisting of—
(i) a single act, or
(ii) a course of conduct.

(4) A person guilty of an offence under subsection (1) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

It will indubitably serve to criminalise the conduct of Mr Hatcher and the like. Happily, there is also no question of strict liability here. Intent is specifically provided for. However, notice that behaviour as defined in the third section includes communication. As a fruminous cybernat, obviously I make it my business to behave in a relentlessly abusive fashion. The justness of the offence, it seems to me, will rest on the question of severity - and in particular what that modal character, the reasonable person, is deemed to find fearful or alarming. Lots of communication is abusive - given its broadest definition - and threatening is a very flexible notion. Obviously, there are the muscular threats of brute carnality - "When next we meet, I'll make it my business to pulp your fat turnip face". They might also be promises of economic ruin - "With my aggressively competitive pricing structure, I'll see your costermonger in the gutter within the tax year" - unveiled romantic threats "Tybalt: Oi, Juliet! Eyes off my Romeo, I'm nurturing his latent homosexual tendencies and fully intend to have him off you within the month" - and so on, and so on. For instance, Richard Baker might be alarmed that I style him the Swine Pursuivant, attempting to associate him with a series of unflatting ideas to his permanent political detriment and disfigure his public career. He may fear for his future under my relentless satire, but I fancy that such fears wouldn't achieve the reticent severity likely to convince the reasonable person. Alarm, too, seems suggestive of higher dudgeon.  No doubt the High Court of Justiciary will have its say, soon enough.

Under such a dispensation, in terms of this offence, what - if anything - would have happened to Mr Chambers and his jesting tweet, I find myself wondering? Would the stately but gormless form of the fail whale glide through the spirit of Scottish police, Scottish Procurators and Sheriff, un-buoyed by the fluttering golden wings of reason, fairness and justice?

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