Another day, another case before the English courts where the issue is whether someone should face criminal liability not for something they did, or intended to do, but for something they said.

In this particular instance, the case was an appeal from a local criminal court to the High Court in London. The facts of the case are unpleasant, and the vile speech act in question was not one which any civilized person would find acceptable. However, a two judge panel at the High Court granted the defendant’s appeal. And in his concurring judgment, Lord Justice Laws (an example of nominative determinism seemingly rife in the senior English judiciary – Lord Chief Justice Lord Judge is another example) made the following emphatic statement:

the words were…certainly offensive: a nasty, malicious antisemitic comment of which the appellant should be thoroughly ashamed, but they were not menacing.

The courts need to be very careful not to criminalise speech which, however contemptible, is no more than offensive.

It is not the task of the criminal law to censor offensive utterances.

This is a rousing declaration: the sort of judicial exclamation which makes you want to nod your head as you read it. It is sensible and liberal, even if the speech act in question being defended is disgusting. 

A general view of New Scotland Yard on October 2, 2008 (Photo by Dan Kitwood/Getty Images)

  © Dan Kitwood/Getty Images

The news that the UK’s Metropolitan Police had obtained the “telecommunications data” of a journalist so as to identify his confidential source has significant implications for criminal and civil lawyers — and also for their clients.

What the Met did was simple: they merely completed a request form under the Regulation of Investigatory Powers Act 2000 (RIPA) and sent it to the journalist’s mobile telephone service provider. As long as the RIPA request is approved by the appropriate senior police officer, the telephone company provides the requested information by return. This information is not the actual content of a call or voicemail — that would (or should) require an intercept warrant — but all the accompanying “metadata” (a list of calls to and from the mobile, their duration and times, and even the geographic location of the mobile during the call) as well as subscriber information.

For the police, asking for this telecommunications data is routine. Every year the police and other public authorities make about half a million RIPA requests. None of these requests need a warrant, and none need consent. Indeed, the subscriber is not even told the request has been made. All this information is provided silently and easily to the police force or other public body making the request. There are no real safeguards against abuse.

So, if the police can casually use RIPA to obtain the telecommunications data of the political editor of the Sun newspaper, is there any limit on who else they would seek this data on? And even if there was such a limit, how would anyone know that it was not being respected? 

The UK’s Metropolitan Police obtained the “telecommunications data” of the political editor of the Sun. They did this without his consent, and possibly even without his knowledge. They also did this without any warrant or other court order. And this intrusion has caused a media sensation.

The revelation was buried in the “Operation Alice” report of the Metropolitan Police into the so-called “Plebgate” affair about what was said (and not said) by the then chief whip of the government, Andrew Mitchell, at the gates of Downing Street in September 2012. This incident led to a senior ministerial resignation, and to four police officers losing their jobs with one also being prosecuted. There are accusations and counter-accusations, and an ongoing libel case. The published report set out part of the Metropolitan Police’s own investigation; on whether Mr Mitchell called the police “plebs” the report is inconclusive.

But deep in the report, comprising paragraph 5.120, is this short and, for many, worrying sentence:

The telecommunications data in respect of Tom Newton Dunn was applied for and evidenced.

What the Metropolitan Police appear to have done was to issue a “RIPA request” (under the Regulation of Investigatory Powers Act 2000) to Mr Newton Dunn’s mobile telephone company for “telecommunications data”. This is not the same as obtaining “intercept” evidence of live calls and voicemails – that would need a warrant. Instead the request would have been for the accompanying data which would be held by the telecommunications provider: the relevant numbers and other details of incoming and outgoing calls, their duration, their times — even the geographical location of the mobile telephone when the calls were received or made. As one can imagine, with this amount of data, obtaining an intercept of the actual content of the calls becomes less important. 

Yesterday, in response to the sharing on the internet of horrific and sickening footage of the apparent execution of journalist James Foley, the UK’s Metropolitan Police Service (MPS) provided the following statement to news reporters:

The MPS Counter Terrorism Command (SO15) is investigating the contents of the video that was posted online in relation to the alleged murder of James Foley.

We would like to remind the public that viewing, downloading or disseminating extremist material within the UK may constitute an offence under terrorism legislation.

What was eye-catching about this statement was that “viewing” the material could, by itself, be a criminal offence under “terrorism legislation”. By the time the statement was issued, thousands of people had viewed the video. Was the MPS really saying that each UK viewer faced, at least in principle, a conviction under terrorism law for doing so? 

An ape takes a selfie: but who owns the copyright in the photograph?

This question is in the news because of a decision contained in the recent Wikimedia Foundation Transparency Report:

A photographer left his camera unattended in a national park in North Sulawesi, Indonesia.

A female crested black macaque monkey got ahold of the camera and took a series of pictures, including some self-portraits.

The pictures were featured in an online newspaper article and eventually posted to Commons.

We received a takedown request from the photographer, claiming that he owned the copyright to the photographs.

We didn’t agree, so we denied the request.

 

The UK government is pushing through emergency legislation.

The Data Retention and Investigatory Powers Bill was published yesterday, and the intention is that it will be an Act of Parliament by the end of next week. A legislative process which usually takes up a year will be truncated into seven days. This is law-making in a hurry. 

What would be better than this sentimentality about a thirteenth century manuscript would be for the UK to have proper constitutional guarantees: to make it possible for a defendant to rely on his or her fundamental rights in practical case, and to make it impossible for parliament and the executive to violate these rights. But this would mean that the UK would at last have a mature approach to constitutional rights. 

Last weekend the Sunday Mirror reported, almost in passing, that Chris Grayling may be sacked from the UK cabinet:

So Justice Secretary Chris Grayling is expected to get the chop and be replaced by Northern Ireland Secretary Theresa Villiers.

This would be welcome news. Mr Grayling has not been a success as justice secretary and lord chancellor, in respect of either policy making or political leadership. Indeed, it is difficult to imagine a worse ministerial performance. 

Earlier this month, a UK government department told senior judges something rather extraordinary: that the department was resorting to an “emergency measure”.

But this was not the Home Office dealing with the aftermath of widespread riots, or the Department for Food, Environment and Rural Affairs coping with sudden flooding of villages and towns. 

A fortnight ago the UK government had a disaster in a London criminal court.

It was a disaster which had been one year in the making – and one which was widely predicted. And it was a disaster the impact of which will become even more serious – unless government policy now changes.

In essence, the calamity was that a prosecution for complex fraud – the Operation Cotton case – was stayed (that is, terminated) by a judge on the application of the defendants. This was, of course, unwelcome in itself: it meant alleged fraudsters could walk free without trial.