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.
© 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?
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.
The Ministry of Justice – which is responsible for the prison system in England and Wales – decided in November 2013 that it will restrict books that can be received by serving prisoners. This week the excellent Howard League drew public attention to this, and yesterday a number of distinguished authors signed a letter of protest.
We need to be clear as to the nature of the policy. The relevant document is here (Word document, see especially pages 45 and 56). It is not a general “ban” on books as such. Prisoners will still have access to the books in the prison library and can have up to 12 books in their cell – but access to any books sent from outside prison – either purchased or sent by friends and family – will only be as rewards for good behaviour. The prospect of books, like trinkets, will be dangled to prisoners as treats.
A number of people in England are, it seems, now routinely searching bins for discarded food so that they and others can eat.
And if this was not sufficiently concerning, the state appears to be seeking to criminalise these people for doing so.
“The cause of everyone’s misfortunes is their inability to sit quietly in a room.” Blaise Pascal
Dawn arrests and long bail are two extreme examples of how the coercive power of the state can be applied to individuals.
The first is short and dramatic: a loud knock on the door in the early hours followed by your arrest and removal to a police station, whilst your is home is invaded and thoroughly turned over by a team of uniformed police officers. And the second is painful and ongoing: after the arrest and release on bail, then weeks or months – or even years – will go by without you knowing whether you will be charged or not.
In both situations, there has been a lot of attention by reason of the various police operations connected to the conduct of the tabloid media. Of course, this publicity is not surprising: many of those arrested are, by definition, professional communicators.
But neither dawn arrests nor long terms of bail are particularly a journalists’ problem. Both go wider; it is merely because they have happened to media folk that what has happened and its impact on those involved is clearer for others to see.
Are there any good reasons for these dawn arrests and the long bail? Is there, as a reporter would ask, another side to the story? Or are there wider problems here, which the current media-related cases are acting to bring to light?