10 Oct 12 | Uncategorized
I spent the morning at the Crown Prosecution Service’s offices in London, taking part in a round table discussion on guidelines for prosecuting offences committed on social media and emphasising recent prosecutions impact on free speech.
The consultations, chaired by DPP Keir Starmer — the most senior prosecutor in England and Wales — are taking place in a week when social media prosecutions are very much in the news. On Monday, Matthew Woods was sentenced to 12 weeks in prison for unpleasant, distasteful remarks on Facebook about missing Welsh schoolgirl April Jones. On Tuesday, Azhar Ahmed was given community service and a £300 fine for suggesting — again on Facebook — that British soldiers should burn in hell.
Index condemned these prosecutions and that of Paul Chambers, whose quip that he would blow Doncaster’s Robin Hood airport “sky high” landed him in deep trouble before the Lord Chief Justice ruled that his joke should be taken as just that.
It’s clear to many that there is a problem with the law and social media, in particular the use of Section 127 of the Communications Act, which states that a person is guilty of an offence if she “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.”
At the meeting today, the DPP seemed to share Index’s unease with the use of this law, pointing out that its genealogy dates back to the 1930s, and laws to protect telophone operators from abuse.
This was certainly encouraging to hear. But Starmer was keen to point out that prosecutors can only work within the existing laws — it is up to others to change the law.
What was not so encouraging was his view of the Lord Chief Justice’s opinion offered in the Twitter Joke Appeal.
In his ruling (par 28), Baron Judge commented that “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 not be interfered with by the Communications Act
Many of us had hoped that this ruling would set a precedent, or at least provide guidance for police and prosecutors in future cases. But when I raised this with the DPP today, he suggested that he did not feel that the Lord Chief Justice had any intention of that principle being extended beyond the specifics of the Twitter Joke Trial.
To me this seems odd, as it is clearly a comment on the broad purpose of the Communications Act.
This point can be stressed when the CPS launches its public consultation in November.
On a slightly more positive note, the DPP was willing to entertain the idea that “not intended to be taken seriously” could be seen as a mitigating factor in decisions on whether to prosecute.
There were some other notable aspects in the meeting.
As Dan Sabbagh has reported and I can confirm, the DPP seems very keen on greater involvement/responsibilty for Internet Service Providers in policing content. But given the broad nature of the term “service provider”, this could prove difficult to pin down (as a representative of the Internet Service Providers’ Association pointed out).
The DPP also was keen to look into the distinction between a “victim” and an “offended bystander”, in cases where endless retweets and media attention can suddenly escalate a mere tweet into a national news story.
It’s hugely important for anyone who uses the web but especially those with a Facebook or Twitter account that the CPS gets this right. The future of free speech is at stake.
Padraig Reidy is News Editor at Index on Censorship
08 Aug 12 | Uncategorized
Red faces over at the Crown Prosecution Service and the Metropolitan Police, as a jury took under three hours to clear former aide to London Mayor Boris Johnson , Simon Walsh of a string of charges brought under “extreme porn” laws. Indeed, were Twitter an accurate reflection of the nation’s views on a topic, Keir Starmer, Head of the CPS and all those involved in the prosecution would this afternoon be looking for new jobs: such has been the mix of disbelief and outrage that public money and police time should be wasted on footling state attempts to interfere in the private lives of consenting adults.
The case began last April when Police arrested Walsh, a barrister and one-time hopeful for the post of Lord Mayor of the City of London, on charges of possessing extreme pornographic images. Or more precisely, of possessing images that, contrary to Section 63 of the Criminal Justice and Immigration Act 2008 were taken for pornographic purposes and depicted realistic scenes of acts causing harm or likely to cause harm to one or more of the participants.
For the last 14 months, Walsh’s life has been on hold, as he waited for the case to come to trial. He eventually got to court in London last week, with the jury quickly being immersed in what probably felt like far too much information about certain sexual practices. In particular, the use of urethral sounds in erotic play — the insertion of medical equipment inside the urethra — and anal fisting.
Since it didn’t appear as though those participating in the action had actually come to any real harm, it was left to medical experts called by the prosecution to attest to how, in the wrong hands, such techniques could result in harm. Against such an assertion by one expert, Mr Vivek Datta, consultant colorectal surgeon at Guys & Thomas’ NHS Trust, was ranged the much more telling results of the Gay Men’s Sex Survey taken in 2006 and handed out at sexual health clinics.
This found that some 12.8 per cent of those asked had participated in fisting, which, crudely extrapolated, suggested that the number of men participating in fisting in London alone could be close to 30,000 in a year.
There followed expert evidence for the defence from Dr Clarissa Smith, reader in sexual cultures, and Chris Ashford, reader in Law and Society, both at the University of Sunderland. Dr Smith argued that the images in question were not strictly “pornographic”, disputed a CPS claim that those who attend sexual health clinics were more likely to engage in risky sexual practices than the rest of the population and flatly rejected argument by the CPS that she would take a different view if the images in question involved women.
She was then subject to an astonishing personal attack as prosecution counsel, in summing up, described the evidence she had given as “disingenuous, self-serving and dishonest”. But in spite of the prosecution’s efforts, Walsh today walked free from court.
So where does this acquittal leave the law? On the plus side, it continues a trend, now well established, that with proper defence, juries do not on the whole agree with state nannying — or the view that the CPS has a right to dictate what images consenting adults may view in private. Particularly when those images are of acts that are themselves wholly legal to carry out.
However, the trend in extreme porn convictions continues to be sharply upward: over 1300 last year as opposed to the 30 per year that civil servants estimated would be the going rate when the law was first mooted in parliament. That does not include the number of cautions, which, despite counting as criminal convictions, do not figure in the stats.
In practice, it is not so much an extreme porn law as a kind of “dangerous dogs” act — since the bulk of convictions (over 90 per cent) have been obtained in respect of possession of images of bestiality — often a result of someone receiving an image from a friend and failing to delete it before the police happened to look at his phone.
That trend is repeated in this case, where there was some doubt as to whether Simon Walsh had ever actually looked at the images in question.
However, the effect of this law is pernicious. It doesn’t seem to have done much to stem the tide of porn that so many politicians obsess about. It has given police and prosecution another stick with which to beat the unwary — and to punish them should they not be punishable for any other crime.
Those who merely read the court reports may not fully get the devastation that such cases cause to individuals. And this devastation is a fact wilfully exacerbated by the CPS, who frequently insist on putting individuals through months of pre-trial angst before withdrawing the charges in the first hour of the trial.
As happened to one charge in this case: a suggestion that a picture that Walsh possessed of a man in a gas mask could also constitute extreme porn.
For all that this result has been embarrassing to the CPS, they continue to make progress on what is beginning to feel like a serious moral agenda at the heart of their practice. Calls for review of prosecuting practice have followed swiftly. Ian Dunt, of politics.co.uk, thinks it is time to look again at the culture within the CPS: Ben Goldacre wonders aloud whether it is mere coincidence that a lawyer who has made a career of bringing corrupt police officers to book should be the target of such legal manoeuvring, also suggesting “we need an inquiry into why CPS and police keep bring these [cases]”.
Lawyer and New Statesman blogger David Allen Green Tweeter Mike Ward @Schroedinger99 suggested that the CPS should spend more time worrying about mens rea and less about men’s rears.
Still, there is something worrying about the course that this trial took. The extreme porn law, lest those with short memories forget, was initially introduced to deal with images of extreme harm — actual or potential — in a sexual context.
We have already seen, in the Video Recordings Act, how judges are capable of shifting the goalposts, making “potential harm” the yardstick by which cases are to be judged — although again, it is a selective sort of potential, that prosecutes images of fisting but leaves the “potential harm” of ultraviolent films untouched.
But one further disconcerting element arose in the judge’s summing up today: for “harm”, which in the original conception of the law was clearly the depiction of physical harm can now refer to “physical, mental or moral harm”.
In other words, the CPS may have ended losing this particular battle and looking like asses — but in the longer game, the policing of private sexuality, they have just notched up a signal victory.
*David Allen Green points out in the comments that it was Mike Ward who came up with the mens rea/mens rears joke
The trial was tweeted by Simon Walsh’s lawyer Myles Jackman — who blogs as Obscenity Lawyer — and legal researcher Alex Dymock
Jane Fae is a writer who has made her focus the intersection of the law, IT, policing – and sex and sexuality. She can be found regularly writing on issues of individual and sexual liberty, with a distinctly feminist tinge. She is also a national co-convenor for Consenting Adult Action Network. You can follow her on her blog or on twitter: @JaneFae
04 Apr 12 | Leveson Inquiry
The Director of Public Prosecutions has said there was a “degree of pushback” from former Metropolitan police assistant commissioner John Yates against his suggestion of investigating the infamous “for Neville” News of the World email further.
Appearing for a second time at the Leveson Inquiry, Keir Starmer QC said Yates had told him during a 20 July 2009 meeting that the email, which contained phone hacking transcripts that suggested the practice went beyond one reporter at the News of the World, was not new material, had been seen by counsel and would “go nowhere”.
“I had been told in July 2009 in confident terms by Yates that all of this had been looked at, there was nothing new,” Starmer told the Inquiry, noting that Yates had told him he “needn’t concern” himself with the issue.
“[But] I became increasingly concerned about confidence with which those answers had been given to me,” he added.
Starmer said that out of an “abundance of caution” he sought further advice from David Perry QC, the counsel who had led the 2006 prosecution of private investigator Glenn Mulcaire and former News of the World royal reporter Clive Goodman for intercepting voicemails.
By the time of the February 2009 Commons Culture, Media and Sport Committee report that said the police had been wrong not to investigate the “for Neville” email further, Starmer said he felt he had “exhausted the exercise with Perry” and was unsure what else as DPP he could do.
Goodman and Mulcaire were jailed in 2007 for listening to voicemail messages left on the phones of members of the royal household. Goodman was sentenced to four months and Mulcaire six months.
Earlier today Perry gave evidence via video link from Northern Ireland, taking the Inquiry through the details of the 2006 prosecution. He told the Inquiry he was “concerned to discover” the extent of the activity, raising the issue at an August 2006 conference with police officers and the Crown Prosecution Service following the arrest of Goodman and Mulcaire.
“I have a clear recollection of asking whether there was any evidence implicating any other individual employed by News International in the criminality and being informed by the police (I cannot recall which officer) that there was not,” Perry said in his written evidence.
The Inquiry will resume on 23 April, when evidence will be heard from media proprietors and owners.
Follow Index on Censorship’s coverage of the Leveson Inquiry on Twitter – @IndexLeveson
