Friday, 27 July 2012

The Twitter Joke Trial and the Public Interest

The final end, at the High Court this morning, of the "Twitter Joke Trial" has a bittersweet quality. On the one hand, justice has - eventually - been done. Thanks to the perseverence of Paul Chambers and his legal team, a precedent has been set that should ensure no future prosecutions under s127 of the Communications Act for such obvious jokes as (all together now) "Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!" A wrong has been righted. The judges made the right decision. The right of freeborn Englishpersons to make bad jokes on the interent has been enshrined in law. Paul Chambers' reputation, and that of the legal system himself, has been vindicated. Hurrah!

And yet, of course, this has been two-and-a-half years of hell for Paul, who was arrested at work and then charged by a police and prosecution service that seemed to be working on autopilot, more concerned with process than justice or logic. He has lost two jobs and his career may never fully recover. All for a piece of nonsense that should never have come within a mile of a court. We are entitled to wonder how the Crown Prosecution Service should ever have thought it justified.

Standing outside the court, David Allen Green described the personal decision by Keir Starmer, Director of Public Prosecutions, to pursue the case all the way as "disgraceful" and the who case as "shameful". He went on that there were "very serious questions for the DPP to answer." Louise Mensch, who happens to be Paul Chambers' constituency MP, suggested that Starmer might be held to account by the Justice Select Committee for his profligacy with public funds. Many rightly question how the prosecution could ever have been thought to be in the public interest, seeing that no-one, at any time took the "threat" seriously. Indeed, the Lord Chief Justice and his colleagues concluded that, "on an objective assessment, the decision of the Crown Court that this tweet constituted or included a message of a menacing character was not open to it." Which is surely correct.

The answer may lie in the Code of Practice for Crown Prosecutors (pdf). This provides a two-stage test for deciding whether a prosecution should be brought: the first considers the evidence (and whether there is a greater than 50/50 chance of success) while the second considers whether it is in the public interest to prosecute. This sounds reasonable. The Code sets out a number of factors that might weigh against a prosecution being brought. Some of these might, at first sight, seem applicable to the Chambers case. Thus:

4.17.b) the seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts


d) the offence was committed as a result of a genuine mistake or misunderstanding


e) the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement;

Other things being equal, such factors might have been expected to weigh against a prosecution, considering both the cost to the public purse of bringing proceedings and the disproportionate effect that the process has had on Paul Chambers' life.

But that would be to misunderstand the Code. The CPS website makes clear that there is a presumption in favour of prosecuting. "A prosecution will usually take place unless the prosecutor is sure that the public interest factors tending against prosecution outweigh those tending in favour." The test is not to balance factors favouring with those tending against a prosecution. It is assumed to begin with that a prosecution will be in the public interest. In case of doubt, prosecute.

There is nothing in the Code that considers the proportionality of subjecting someone of previous good character to the full rigor of the legal process, which can be shattering even if they are ultimately acquitted. Nor is there anything in the Code to suggest that, in a trivial case, prosecution might be an inappropriate use of public resources even if it produces a conviction. The CPS can waste as much taxpayers' money as it likes in its tenacity to secure a conviction, without violating the "public interest" test. Public money is not a public interest. This is absurd. A proper public interest test ought to take into account the cost of court action in all but the most serious cases. In other words, there should be a presumption against pursuing a case to court if it can be settled more cheaply.

We live in an era that fetishises due process, best practice and adherence to guidelines. There is less and less room for the exercise of discretion and common sense. The bureaucrat (and Crown Prosecutors are essentially bureaucrats) who exercises independent judgement takes a risk. But just because something is written down in a Code of Practice does not make it sensible or right, and in the case of the CPS Code there appears to be a serious problem with a narrow and restrictive test of "public interest." By assuming that prosecution is by its very nature in the public interest the Code encourages, indeed forces, disproportionate, oppressive and financially wasteful criminal actions. It's a problem much wider than the farcical case of Paul Chambers and his Tweet.