All warfare is based on deception

Bamboo_Book_binding

Bamboo book of The Art of War – title and contents page

The title to this post is a proverb that can trace its roots to the Chinese book, The Art of War, attributed to Sun Tzu. It comes from the passage at verse 18 in Chapter 1:

兵者,詭道也。故能而示之不能,用而示之不用,近而示之遠,遠而示之近

(All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.)

It would seem, following the report by the Policy Exchange titled The Fog or War, that deception includes convincing politicians that military action is being impeded by actual or potential legal oversight.

I have written before on combat immunity, one of the topics discussed in The Fog of War, following the High Court judgment in Smith and others v Ministry of Defence (Civil liability in military uniform) and the Supreme Court ruling in the same case (Combat immunity takes a hit). I concluded that I cannot see any justification for giving the military a broad exemption from liability for negligence claims. As the Policy Exchange itself points out, there is a mechanism for the Secretary of State to give the military immunity where required in the national interest, subject to Parliamentary scrutiny (section 2 of the Crown Proceedings (Armed Forces) Act 1987). I summarised my view in a radio package by Voice of Russia on the Policy Exchange report – listen here.

However, The Fog of War also addresses the question of the application of human rights law to the battlefield. It suggests a scenario where battlefield commanders at all levels become inhibited from acting as a result of their concern about subsequent legal scrutiny of their actions. Similarly, the impact of health and safety legislation, despite the many exemptions that apply to the military, is discussed as being a burden. Much is made of the evidence given before a House of Commons Select Committee of “over-compliance” by the MoD with health and safety regulations. The report also details the nature (and exemptions) included in the Corporate Manslaughter and Corporate Homicide Act 2007. We are being led to believe that as the Supreme Court  in Smith v MoD restricted what were ‘military activities’ for the purposes of what constitutes combat immunity in negligence actions, ‘judicial mission creep’ will bring about paralysis on the battlefield. Commanders under fire will think more about potential law suits than the task at hand.

This all suggests a massive lack of training and understanding by the military of their obligations and duties under the law. I am tempted to be tribal and say this must be an army and navy problem. I was regularly given training during my time in the RAF on what was then called the Green Card (rules of engagement when armed in the UK) and was also required at one point to learn the Yellow Card (rules of engagement when in Northern Ireland). As an officer in charge of armed guards, I also had to give reminders to guards about to go on duty on their rules of engagement. None of this was too difficult.

Similarly, I don’t see that with proper training, the application of human rights and the law of armed conflict should hinder operations. To give the military some implied discretion over the relative importance of human rights and rules such as those under the Geneva Convention in tactical situations to me seems a dangerously retrograde step. Does anyone think that Marine A was not guilty of murder?

I was also the first officer trained in health and safety to be posted to a joint service unit in the Falklands (JCUFI). As might be imagined, this required a lot of remedial work in writing up safety policies and procedures, as well as training the non-RAF elements (the RAF at that time seemed far more advanced in health and safety compliance, possibly because in many ways the RAF is essentially an engineering and logistics operation). I came across a lot of initial resistance from those who had never considered or been trained in health and safety best practice, with similar complaints to those listed in Fog of War that to be health and safety compliant was to reduce military capability and effectiveness. However, careful explanation of ALARP principles (in practice, the application of common sense) and the realisation that ALARP practices usually led to more efficient procedures and outcomes usually convinced personnel (and superiors).

What I find particularly alarming about The Fog of War, however, is the argument that as the British military is always under-resourced, it must rely on risk-taking:

In comparison with its rivals, the UK has traditionally maintained armed forces at levels which might easily seem inadequate for the tasks which they are expected to face. They have compensated by training and encouraging leaders at all levels to innovate. Historically, this has allowed the UK to maintain a smaller force than its rivals – and still more than match them on operations. In the 2011 version of the military’s professional instructions, the British Army states that: “a warfighting ethos, as distinct from a purely professional one, is absolutely fundamental to all those in the armed forces”. This is not an arbitrary distinction. As the recently retired Commander of Force Development and Training, Lieutenant General Sir Paul Newton puts it: “The reason we make this particularly British distinction is that our armed forces are small; they do not enjoy unlimited resources; and we tend to commit the military only as a last resort so wresting control away from the adversary requires agility; confidence can be a life or death issue. As the doctrine states, ‘this approach requires … decentralised command,
freedom and speed of action and initiative, but which is responsive to superior direction when a subordinate overreaches himself ’.” Small militaries must be creative and take calculated risks if they are to prevail. But this initiative, central to the British way of warfare, risks being undermined by juridically-inspired caution.

Britain’s forces have a reputation for agility because they have traditionally accepted risk. Being willing to deploy with what they have – both in terms of equipment and training – and then adjust according to requirement on arrival has given the UK a speed of reaction that few others can match.

To anyone who has read any critical analyses of the conduct of the British armed forces in recent engagements, these passages are particularly dispiriting. Whilst ‘can do’ and ‘cracking on’ attitudes can be commendable, even military training videos show that an excess of these attitudes can lead to trouble.They also encourage politicians to act too quickly and, in my view, be too ready to turn to the military option.

It’s the lack of critical thinking that is worrying. The authors of The Fog of War do not seem to appreciate that recent military actions in Iraq and Afghanistan, where there has been the most alleged judicial creep, should at best be described as police actions. These were not and should not be seen as wars, just as the prevention of terrorism should never be catagorised as the almost oxymoronic ‘war on terror’.

An aggressive, warfighting ethos that is risk-taking and not risk-averse is not always the best approach. Such a culture only breeds high ranking officers who are incapable of saying “No” to their politician task-masters. I particularly recommend the book Losing Small Wars for the analysis of Frank Ledwidge on the damaging effects of this culture, particularly for police and anti-insurgent actions.

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Saturday Hassan and Human Rights

The case of Saturday Hassan, widely reported in the Daily Telegraph, Daily Main and on BBC Radio 4 Today on 21 December 2012, highlights the confusion that still exists about the interaction between the Data Protection Act 1998, the Freedom of Information Act 2000 and, indirectly, the Human Rights Act 1998.

Saturday Hussan is serving a life sentence for the murder of Darren Deslandes – he was shot dead on New Year’s Eve 2009. Darren’s parents, Wintworth and Lurline Deslandes, want the Home Office to disclose Hussan’s immigration status, so that it can be confirmed that if he is an illegal immigrant or foreign national, he will be deported when he is finally released from jail. It is reported that the Home Office have refused the request, on the grounds of the protection of Hussan’s right to privacy (under Article 8 of the European Convention of Human Rights, incorporated into UK law by the Human Rights Act 1998).

This is an inadequate reason, without further explanation from the Home Office. It may also be wrong at law, but the relevant law is complex. I set out below one way in which the information could be lawfully disclosed, but there are others that would need careful analysis of all the relevant facts.

There are various offences related to immigration under, for example, the Immigration Act 1971. It can therefore be legitimately argued that information concerning Hussan’s immigration status is sensitive personal data under the Data Protection Act 1998, for which higher level of safeguards apply. However, sensitive personal data can be processed for a number of lawful reasons, including for the administration of justice or for the exercise of any functions of a Minister of the Crown or government department. Its disclosure, if for these purposes, would therefore not be a breach of the data protection principles, and so would be permitted under the Freedom of Information Act 2000.

What is covered by the “administration of justice” purposes in the Data Protection Act 1998 has not been judicially determined, but in other cases that have reached the European Court of Human Rights (ECHR) in Strasburg, it has been made clear that the ECHR would consider whether any interference to a citizen’s Article 8 right to privacy was justified. In the terms set out in S and Marper v The United Kingdom [2008] ECHR 30562/04 (a case involving retention of DNA records by the police), the ECHR said:

An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001, with further references). (paragraph 101)

It is therefore arguable that the Home Office could decide that the Deslandes and other similar indirect victims of crime do have a pressing social need to know whether they are safe from the perpetrator of the relevant crime reappearing on their doorstep. It certainly is not as simple as saying Hussan’s right to privacy trumps every other consideration.

Can Cameron stop social media?

Egypt Internet Blackout (© Arbor Networks)

This excellent graphic from Arbor Networks shows how Internet traffic to and from Egypt fell off a cliff between 27 and 28 January 2011.  At about the same time mobile phone operators in Egypt reported that they were required to close down their networks in certain areas of the country.

On Thursday, 11 August 2011 David Cameron made a lengthy statement in the House of Commons to open the parliamentary debate on public order, following extenisve rioting in London and other English cities.  Notably, he said:

Everyone watching these horrific actions will be struck by how they were organised via social media. Free flow of information can be used for good, but it can also be used for ill, so we are working with the police, the intelligence services and industry to look at whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality.

Could the UK Government follow Egypt and order an Internet blackout and mobile phone network shutdown, or at least block access via Internet (including by mobile phone) to social media platforms?

Internet Blackout

The Communications Act 2003 contains a broad power that could be used by a Secretary of State to close down or restrict access to the Internet, at least by ordering UK-based communications providers to close or restrict access to any international gateways.  Section 132 begins:

132 Powers to require suspension or restriction of a provider’s entitlement

(1)  If the Secretary of State has reasonable grounds for believing that it is necessary to do so—

(a)  to protect the public from any threat to public safety or public health, or

(b)  in the interests of national security,

he may, by a direction to OFCOM, require them to give a direction under subsection (3) to a person (“the relevant provider”) who provides an electronic communications network or electronic communications service or who makes associated facilities available.

(2)  OFCOM must comply with a requirement of the Secretary of State under subsection (1) by giving to the relevant provider such direction under subsection (3) as they consider necessary for the purpose of complying with the Secretary of State’s direction.

(3)  A direction under this section is—

(a)  a direction that the entitlement of the relevant provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

(b)  a direction that that entitlement is restricted in the respects set out in the direction.

Whilst the word “reasonable” gives any affected communications provider the hope that a capricious direction of the Secretary of State could be reined in by an urgent judicial review, what amounts to a critical threat to public safety or, especially, national security is not a judgement a court is likely to wish to overturn.  In any event, section 132 can itself be considered unnecessary in the light of Part 2 of the Civil Contingencies Act 2004.

This part of the 2004 Act replaced the Emergency Powers Act 1920.  It is highly recommended reading for any conspiracy theorist or anyone deeply cynical about the ability of politicians to act reasonably and sensibly in the event of any serious emergency affecting the UK.  In summary, the 2004 Act gives the Executive extraordinary powers to make emergency regulations.  Providing by regulation that internet service providers must deny access to international gateways or particular websites or servers could easily be achieved.

Mobile Phone Network Shutdown

The Secretary of State would not even need to consider making emergency regulations under the 2004 Act in order to shut down mobile phone networks.  A direction made under Section 132 of the Communications Act 2003 would suffice.  Each of the mobile phone operators has in their Wireless Telegraphy Act licences a provision in the same or substantially the same form as the following:

Ofcom may in the event of a national or local state of emergency being declared require the Radio Equipment to be modified or restricted in use, or temporarily or permanently closed down either immediately or on the expiry of such period as Ofcom may specify. Ofcom shall exercise this power by a written notice served on the Licensee or by a general notice applicable to holders of this class of Licence. (See Ofcom’s Template 2G Licence.)

So once Ofcom got the direction from the Secretary of State, it would have to do the dirty work and order the mobile phone operators to close down their networks.

Interception of Social Media

From David Cameron’s statement quoted above, it would appear that the Government’s thinking is that social media networks would be closed down when it was suspected or known that “violence, disorder and criminality” was being plotted.  This implies that there will need to be monitoring of these networks.  The problems in carrying out this monitoring are technical, not legal.  All that would be required legally is an interception warrant made under section 5 of the Regulation of Investigatory Powers Act 2000 (RIPA):

5  Interception with a warrant

(1)  Subject to the following provisions of this Chapter, the Secretary of State may issue a warrant authorising or requiring the person to whom it is addressed, by any such conduct as may be described in the warrant, to secure any one or more of the following—

(a) the interception in the course of their transmission by means of a postal service or telecommunication system of the communications described in the warrant;

(b) the making, in accordance with an international mutual assistance agreement, of a request for the provision of such assistance in connection with, or in the form of, an interception of communications as may be so described;

(c) the provision, in accordance with an international mutual assistance agreement, to the competent authorities of a country or territory outside the United Kingdom of any such assistance in connection with, or in the form of, an interception of communications as may be so described;

(d) the disclosure, in such manner as may be so described, of intercepted material obtained by any interception authorised or required by the warrant, and of related communications data.

(2) The Secretary of State shall not issue an interception warrant unless he believes—

(a) that the warrant is necessary on grounds falling within subsection (3); and

(b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(3) Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is necessary—

(a) in the interests of national security;

(b) for the purpose of preventing or detecting serious crime;

(c) for the purpose of safeguarding the economic well-being of the United Kingdom; or

(d) for the purpose, in circumstances appearing to the Secretary of State to be equivalent to those in which he would issue a warrant by virtue of paragraph (b), of giving effect to the provisions of any international mutual assistance agreement.

(4) The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any warrant shall include whether the information which it is thought necessary to obtain under the warrant could reasonably be obtained by other means.

(5) A warrant shall not be considered necessary on the ground falling within subsection (3)(c) unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.

(6) The conduct authorised by an interception warrant shall be taken to include—

(a) all such conduct (including the interception of communications not identified by the warrant) as it is necessary to undertake in order to do what is expressly authorised or required by the warrant;

(b) conduct for obtaining related communications data; and

(c) conduct by any person which is conduct in pursuance of a requirement imposed by or on behalf of the person to whom the warrant is addressed to be provided with assistance with giving effect to the warrant.

This looks like a very broad power to me.  However, the media stories about the London riots have focussed on the alleged widespread use of BlackBerry Messenger.  This is a secure closed network.  Would this mean the plots on BlackBerry would not come to the notice of criminal intelligence officers?  As has been demonstrated in the Middle East, Research in Motion can come to an accommodation with national security authorities that meets their eavesdropping requirements.  If Research in Motion did not want to cooperate, then arguably there exists a robust regime in Part III of RIPA that would enable investigatory authorities to obtain the necessary codes, particularly as the grounds set out in section 49 for the requirement to release keys are essentially the same as in section 5 for interception.

Human Rights?

What about human rights, you might ask?  Article 10 of the European Convention on Human Rights is supposed to grant a right to freedom of expression, isn’t it? However, as even Wikipedia’s Article 10 page helpfully points out, this is not an unqualified right.  Where in accordance with the law (see above) and necessary in a democratic society, the right can be restricted.

So, although the steps outlined by the Prime Minister in the House of Commons debate seem an extreme response to rioting, the legal tools are already in place to enable the UK Government to do exactly what the Prime Minister has proposed.

Internet Blackout – it couldn't happen here, could it?

Egypt Internet Blackout (© Arbor Networks)

This excellent graphic from Arbor Networks shows how Internet traffic to and from Egypt fell off a cliff between 27 and 28 January 2011.  At about the same time mobile phone operators in Egypt reported that they were required to close down their networks in certain areas of the country.  Vodafone Egypt reported on 30 January 2011 (on its Group website, as its local website was unavailable outside of Egypt) that it had resumed voice call services.

The response in many parts of the world was understandably negative, particularly as the Internet blackout prevented contemporaneous reports coming out of Egypt on social media networks such as Twitter or Facebook.  The US Secretary of State, Hillary Clinton, was widely reported to be urging the Egypt Government to restore communications.

Could the UK Government do the same thing: order an Internet blackout and mobile phone network shutdown?

Internet Blackout

The Communications Act 2003 contains a broad power that could be used by a Secretary of State to close down the Internet, at least by ordering UK-based communications providers to close any international gateways.  Section 132 begins:

132 Powers to require suspension or restriction of a provider’s entitlement

(1)  If the Secretary of State has reasonable grounds for believing that it is necessary to do so—

(a)  to protect the public from any threat to public safety or public health, or

(b)  in the interests of national security,

he may, by a direction to OFCOM, require them to give a direction under subsection (3) to a person (“the relevant provider”) who provides an electronic communications network or electronic communications service or who makes associated facilities available.

(2)  OFCOM must comply with a requirement of the Secretary of State under subsection (1) by giving to the relevant provider such direction under subsection (3) as they consider necessary for the purpose of complying with the Secretary of State’s direction.

(3)  A direction under this section is—

(a)  a direction that the entitlement of the relevant provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

(b)  a direction that that entitlement is restricted in the respects set out in the direction.

Whilst the word “reasonable” gives any affected communications provider the hope that a capricious direction of the Secretary of State could be reined in by an urgent judicial review, what amounts to a critical threat to public safety or, especially, national security is not a judgement a court is likely to wish to overturn.  In any event, Section 132 can itself be considered unnecessary in the light of Part 2 of the Civil Contingencies Act 2004.

This part of the 2004 Act replaced the Emergency Powers Act 1920.  It is highly recommended reading for any conspiracy theorist or anyone deeply cynical about the ability of politicians to act reasonably and sensibly in the event of any serious emergency affecting the UK.  In summary, the 2004 Act gives the Executive extraordinary powers to make emergency regulations.  Providing by regulation that internet service providers must deny access to international gateways or particular websites or servers could easily be achieved.

Mobile Phone Network Shutdown

The Secretary of State would not even need to consider making emergency regulations under the 2004 Act in order to shut down mobile phone networks.  A direction made under Section 132 of the Communications Act 2003 would suffice.  Each of the mobile phone operators has in their Wireless Telegraphy Act licences a provision in the same or substantially the same form as the following:

Ofcom may in the event of a national or local state of emergency being declared require the Radio Equipment to be modified or restricted in use, or temporarily or permanently closed down either immediately or on the expiry of such period as Ofcom may specify. Ofcom shall exercise this power by a written notice served on the Licensee or by a general notice applicable to holders of this class of Licence. (See Ofcom’s Template 2G Licence.)

So once Ofcom got the direction from the Secretary of State, it would have to do the dirty work and order the mobile phone operators to close down their networks.

Human Rights?

What about human rights, you might ask?  Article 10 of the European Convention on Human Rights is supposed to grant a right to freedom of expression, isn’t it? However, as even Wikipedia’s Article 10 page
helpfully points out, this is not an unqualified right.  Where in accordance with the law (see above) and necessary in a democratic society, the right can be restricted.

So, before you get too outraged about the Internet blackout and mobile phone shutdown in Egypt, consider this: arguably the legal tools are all available for the UK Government to do exactly the same in the UK right now.

#TwitterJokeTrial: a Deconstruction of a Statutory Provision

Doncaster Crown Court © Crown Copyright

In this post, I examine a notorious criminal offence, which for many years had lain dormant on the statute books unloved and neglected: section 127(1)(a) of the Communications Act 2003.  Perhaps it should be known at the #TwitterJokeTrial provision (after the hashtag used on Twitter for tweets concerning R v. Paul Chambers (unreported)).  The Chambers case has certainly made the provision internationally (in)famous. It was used to prosecute Paul successfully for an ill-advised tweet on Twitter that mentioned blowing up Robin Hood Airport.

The provision states:

A person is guilty of an offence if he … sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.

This is not a trivial offence, as section 127(3) of the Communications Act 2003 states:

A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

Level 5 on the standard scale is currently £5,000 (Section 37 of the Criminal Justice Act 1982, as amended).

Strict Liability?

Statutory interpretation relies on courts taking a statutory provision at face value (the so-called Literal Rule – e.g. R v Harris (1836) 7 C & P 446: defendant’s conviction for offence ‘to stab cut or wound’ following his biting off of his victim’s nose quashed as provision implied an instrument had to be used).  It eventually became accepted that courts could divert from a literal approach in circumstances that led to an absurd or repugnant result (the so-called Golden Rule – e.g. Becke v Smith (1836) 2 M&W 195).  Only if the court finds there is some ambiguity can it consider what the legislature intended or what mischief or defect in law the provision was intended to remedy (Heydon’s Case [1584] EWHC Exch J36).

On a first read of the #TwitterJokeTrial provision, you might think that sending a message objectively considered to be indecent, obscene or menacing would be a strict liability offence, i.e. where the mere act of committing the offence is enough to render the offender guilty, irrespective of intention.  However, there is a House of Lords judgement that in effect requires that an intention (for lawyers, mens rea) to commit the act (the actus reus) is required for a criminal offence.  In particular, Lord Reid stated in Sweet v Parsley [1970] AC 132, 148:

Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.

DPP v Collins

This passage was quoted in what is perhaps the only reported case on the application of section 127(1)(a) of the Communications Act 2003, Director of Public Prosecutions v. Collins [2006] UKHL 40.  Incidentally, this seems to have been overlooked by the Crown Prosecution Service, who had considered that section 127(1)(a) was a strict liability offence when first prosecuting Paul Chambers in the #TwitterJokeTrial, and it was on this basis that he first entered a guilty plea.  Thankfully the awful implication of this CPS view was spotted early by social media lawyers, particularly David Allen Green of Preiskel & Co, who were able to rectify this gross error and have Paul’s plea re-entered.

Collins applied Sweet v Parsley to find that for a section 127(1)(a) offence:

This passage is relevant here, since Parliament cannot have intended to criminalise the conduct of a person using language which is, for reasons unknown to him, grossly offensive to those to whom it relates, or which may even be thought, however wrongly, to represent a polite or acceptable usage. On the other hand, a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender. The same will be true where facts known to the sender of a message about an intended recipient render the message peculiarly offensive to that recipient, or likely to be so, whether or not the message in fact reaches the recipient. (per Lord Bingham, para 11)

Collins was considering the making of offensive messages, but the principles set out above apply equally well to menacing character messages.  This was done at the #TwitterJokeTrial, where at the appeal at the Doncaster Crown Court Judge Jacqueline Davies considered that Paul Chambers “was, at the very least, aware that his message was of a menacing character”.  In particular, the Judge stated:

We are satisfied, on the evidence, that the message in question is menacing in its content and obviously so. It is difficult to imagine anything more clear. It fits the Oxford English Dictionary definition and the observations of Lord Justice Sedley, to which we have earlier referred. It is, in our judgement, menacing per se.

Although the offence does not require the message to be seen, we take the view that an ordinary person seeing this, and we have no evidence that anyone did, would see it in that way and be alarmed. The airport staff did see it and were sufficiently concerned to report it. As the authorities make it clear, there is no need for anyone to see the message and in any event, different people can have different views.

The required mens rea for this offence is that the person sending the message must have intended the message to be menacing, or be aware that it might be taken to be so.

This Appellant was 26, well-educated and in a responsible job and there is no evidence that he is anything other than of sound mind. We, of course, bear in mind his evidence and the importance of his good character, acknowledging, of course, that good character cannot provide a defence.

We found the Appellant to be an unimpressive witness. We find it impossible to accept that anyone living in this country, in the current climate of terrorist threats, particularly at airports, would not be aware of the consequences of his actions in making such a statement.

Furthermore, we are satisfied that he, as an experienced user of Twitter, made a deliberate decision to post this message on the public timeline of Twitter, on the very day he sent seemingly related private messages to Crazy Colours and within two hours of posting them. We do not accept his evidence that he was unaware of television news and newspaper reports at the material time. His account in interview, as we have observed earlier, was self-serving, although we note that at page 2 of his interview, he uses the expression, when dealing with his Twitter experiences, not to this serious of magnitude.

Accordingly, we are satisfied that the Respondent has proved the necessary mens rea and that the Appellant was, at the very least, aware that his message was of a menacing character.

(Reported by David Allen Green, Paul Chambers’ solicitor, at http://jackofkent.blogspot.com/)

Lord Justice Sedley and Collins

The Judge makes reference to Lord Justice Sedley.  He gave the leading judgement in Collins in the Court of Appeal, and his view was approved by the House of Lords.  Sedley LJ considered that the reason for the section 127(1)(a) offence was to protect people from unsolicited messages which they may find seriously objectionable.  He noted that the offence is addressed to messages, and said:

This is why it is the message, not its content, which is the basic ingredient of the statutory offence. The same content may be menacing or grossly offensive in one message and innocuous in another. … Here, as elsewhere, context is everything.

A menacing message, fairly plainly, is a message which conveys a threat – in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen. Here the intended or likely effect on the recipient must ordinarily be a central factor in deciding whether the charge is made out.

What is offensive has to be judged (very much as the justices, by considering the reaction of reasonable people, judged it) by the standards of an open and just multiracial society. So too, therefore, what is grossly offensive, an ordinary English phrase with no special legal content, which on first principles (see Brutus v Cozens [1973] AC854) it is for the justices to apply to the facts as they find them. Whether a telephone message falls into this category has to depend not only on its content but on the circumstances in which the message has been sent and, at least as background, on Parliament’s objective in making the sending of certain messages a crime.

The controversy about the #TwitterJokeTrial therefore hinges upon:

(a) what is the proper context of a Twitter message; and

(b) whether the alleged menacing nature of the relevant tweet was properly judged by considering the reaction of reasonable people to it or by the standards of an open and just society?

It is my opinion that Judge Davies has totally failed to address the question of context of the message, in either its content or in relation to the medium by which it was sent.  Her judgement fails to show any analysis of context, only an unsupported statement that the message was “menacing per se”.

Secondly, Judge Davies appears to consider that any message that includes any reference to an act of terrorism in any form in respect of any public place would be considered “by anyone living in this country, in the current climate of terrorist threats” to be a menacing message.  I consider that this is a massive leap and I would hope and expect that most reasonable people in the UK do not live in such a state of fear that this is the case.  The best evidence for this must be that no-one appears to have been in any way menaced by the message at issue.  Even the reaction by Robin Hood Airport and the police to investigate the message in a blind following of security procedure is considered by many reasonable people to have been unwarranted by our current open society standards.

By means of a public electronic communications network

The question of the context including the nature of the medium being used to transmit the message is important as section 127(1)(a) includes the phrase “public electronic communications network”.  This is defined in the Communications Act 2003 as being an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public (s. 151(1)).  Electronic communications networks and services are further defined at section 32 of the Communications Act 2003, but the definitions are very broad.  It is safe, therefore, to assume that any internet-based or other publicly-available messaging service of any description will generate a message that will be transmitted at some stage by a public electronic communications network, except messages that stay within the bounds of a private network (such as a messaging system or email hosted on a corporate server for use within a corporate network).

This offence therefore catches a much wider set of messages than was ever anticipated or intended by the original drafters of the provision’s predecessors.  As described in an earlier post (here), and summarised by Lord Bingham in Collins, the 2003 provision can be traced back to section 10(2) of the Post Office (Amendment) Act 1935, which states:

If any person-

(a)  sends any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character; or

(b)  sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience, or needless anxiety to any other person; or

(c)  persistently makes telephone calls without reasonable cause and for any such purposes as aforesaid;

he shall be liable upon summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment.

The original “menacing character” therefore addressed the issue of unsolicited real-time messages targeted at particular recipients (to be inferred within sub-section (a) as otherwise the provision would have included telegraph, as it does in sub-section (b)).  In no way can Twitter be considered to be such a telephone system.  It is much more analogous to a telegraph system, with telegrams potentially available to be read by the public at large.

In any event, no user of Twitter can be said to have intended that any member of the public receive a particular tweet.  Any person without a Twitter account is only able to see a random selection of messages on the Twitter home page.  The chances of any particular tweet being read by an intended recipient on this home page must be infinitesimally small.  Even if an intended recipient was a Twitter user, the mass of messages and the speed with which they appear in the public timeline mean that the chance of a particular message being read in a public timeline is again extremely small, even before the factor that very few users actually read the public timeline is considered.  The result is that no sender can sensibly be judged to believe that any undirected message would be seen by an intended recipient.

A Twitter message can be directed by use of an address (@recipientname) or by the less specific use of a tagged message.  Within Twitter it is possible to use an octothorpe to identify a subject of interest (a hashtag, eg #TwitterJokeTrial) so that clicking on that hashtag reveals all other messages with the hashtag.  It may be reasonable, in the context of a particular message and hashtag, to rule that a sender using a particular hashtag knew or ought reasonably to have known that by doing so the message would be read by an intended recipient.

There is also the question of the meaning of the word “public”.  In the history of the section 127 provision “public” meant publicly-owned, as until 1984 the Post Office, then British Telecommunications plc, was in public ownership.  Only in the re-enactment of the provision in the Communications Act 2003 did the sense of “public” change to mean publicly-available.  As Lord Bingham stated in Collins

The purpose of the legislation which culminates in section 127(1)(a) was to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society.

Hansard

The difficulty with this public electronic communications network contextual analysis is that a court would first have to decide that the outcome of the #TwitterJokeTrial using a literal approach to section 127 led to an absurd or repugnant result.  It is an open question whether the High Court will do so.  If they do, then the Golden Rule and Mischief Rule may enable them to trace section 127 back to the section 10(2) of the Post Office (Amendment) Act 1935 origins.  Given that the High Court is bound by the House of Lords judgement in Collins, it is difficult to see how they could distinguish Twitter from what Lord Bingham considered to be the purpose of section 127(1)(a).  It is extremely difficult to see how it can be argued that Twitter is funded by the public for the benefit of the public.  It is a free service.

In looking at the mischief intended to be remedied by the 1935 provision under the Mischief Rule, English law does permit the courts to consider certain extrinsic evidence.  In particular, the courts can consider the Hansard reports of the debates in Parliament on the relevant provision (Pepper v Hart [1992] UKHL 3] ).  If they were to do so, they would find that at in the Second Reading in the House of Lords, it is at least implied that the measure was intended to catch direct, real-time, communications where a message had an indecent or menacing character.  Here “direct” means that the sender at least intended the message to be received by the intended recipient over the communications system, even though it is clear that it is the sending of the message that is the offence.  The provision was originally drafted to give protection to Post Office staff, particularly female telephonists subject to improper or obscene telephone calls.  A full explanation may be contained in the House of Commons select committee report (Official Report (Standing Committee B), 5 March 1935; col 14), but this is not available online.

Human Rights and Purposive Interpretation

There is one other point to consider, a sender’s human rights.  Under the European Convention of Human Rights, incorporated into English law by the Human Rights Act 1998, a person has a right to freedom of expression:

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

So whilst it is clear the right to free speech can be qualified, it is also a feature of human rights law that any qualifications made under Article 10(2) must be proportionate, both by application of the House of Lords judgement in R v Secretary of State for the Home Department (Ex parte Daly) [2001] UKHL 26  and section 3 (1) of the Human Rights Act 1998:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

It would therefore be open to the High Court to consider the restrictive interpretation made by the Doncaster Crown Court of section 127(1)(a) disproportionately fettered Paul’s and any other person’s right to freedom of expression via Twitter in the interests of national security or public safety.

Conclusion

There is so much argument here which, if it is was raised in the #TwitterJokeTrial Doncaster Crown Court appeal, has not been reported upon.  I continue to hold the opinion that the conviction of Paul Chambers under section 127(1)(a) for what everyone, including the defendant, considers was a stupid tweet, is unsafe.  However, I called the appeal incorrectly, and so I cannot be 100% confident that the High Court will agree.

It will be an extremely sad day for English justice, common sense and for freedom of expression in the UK if stupidity by electronic message becomes a criminal offence.