This morning Swansea magistrates jailed a 21-year-old student called Liam Stacey for eight weeks for posting racially offensive comments on Twitter about Fabrice Muamba…….. I’ve no doubt that he’s a vile man, who by the sound of it was drunk at the time he posted, but what remains disturbing about the case is that the Crown offered no evidence that Stacey had incited racial violence or any other crime. That his speech was racist was enough to send him down. This verdict, like so many others, shows how little confidence the judiciary has in wider society.
This is poor stuff.
Cohen doesn’t seem to realise that when someone pleads guilty to a charge, the Crown Prosecution Service doesn’t even get the opportunity to offer evidence (except in the case of a Newton hearing). Nor does he seem to have noticed that the Stacey case was head by a District Judge, not by magistrates.
The main failure, though, is Cohen’s inability to distinguish between the bringing of the charge and the hearing of the charge.
The judiciary is bound to hear whatever case is brought before it, and while the sentence was certainly on the stiff side, it certainly wasn’t outside sentencing parameters.
But, as I set out here, the main issue with this case was not how it was heard, but why the CPS brought it. In particular, I questioned why the public interest test now seemed to include consideration of the media profile of the case. rather than on the actual content of the offence.
As it happens, the CPS appear to asking the same question of itself. On Wednesday, the CPS’s issued what looks like a carefully considered press release about the views of its lead sports prosecutor, who appears to be making a clear reference to the Stacey case:
Harassment through social media is covered by existing legislation, such as the Misuse of Communications Act, and we have already seen successful prosecutions in this area. Where the abuse is racist, we can bring that to the attention of the court as an aggravating feature.
This is an area where I would suggest education, both of what not to do and of how easy it is to detect and prosecute these offences, might prevent the criminalisation of otherwise decent people, but I should stress I would never condone the misuse of social media to commit what would be a hate crime if said face to face.
He goes on to say that such matters might be better dealt with by the “sports authorities”, though here he is referring more to racist chanting at game, for example. Even so, the general tenor of the press release suggests that the CPS is open to hate speech, whether in person or through social media, being tackled by civil society rather than through the courts.
This appears to be a step in the right direction, and it fits neatly with one of the “factors tending against prosecution” set out in the CPS’s Public Interest Test Code, in cases where:
The seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies.
More importantly, it fits with the overriding principle, set out by the Attorney General in 1951 and highlighted in the Code , that:
It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution.
The left, and Labour in particular, should show some maturity by welcoming this intervention from the CPS, rather than simply indulging in Cohen-style “The law is an ass” rants. That won’t get us very far, whereas actually taking time to understand the legal process, the best point to apply pressure to it, might.
Labour has a poor track record and reputation on civil liberties and free speech, precisely because it failed during its last term of office to look at what the consequences of its legislation might be for the legal process as a whole. This is one way to display a new maturity when it comes to law and order.
Before blaming hackers, George Galloway tweeted today:
Welcome to the 6000 new followers. I will try to live up to your expectations. Shattered but happy after the Blackburn triumph.
Whoops. Didn’t Galloway mean Bradford West?
Or did he? In 2007, the Daily Mail had it:
George Galloway is set to quit his east London stronghold to challenge Cabinet minster Jack Straw at the next election, according to reports.
The Respect MP is considering a move to the Justice Secretary’s safe Blackburn seat, threatening the career of one of the Cabinet’s biggest hitters.
Is Freud on Twitter?
(via @conorpope )
Francis Maude is being pilloried for a) not knowing the law about fuel at home; b) kicking off the panic-buying (with Cameron then joining in). Fair enough. He is a bit of a knob.
But it seems to me that the left is missing a trick here.
The primary cause of the panic-buying is not Maude’s stupidity, but the draconian anti-union legislation introduced the last time the Tories were in power.
The Trade Union and Labour Relations (Consolidation) Act 1992 (and the consequent BIS Code of Practice) requires that:
If the union decides to authorise or endorse industrial action following a ballot, it must take such steps as are reasonably necessary to ensure that any employer who it is reasonable for the union to believe employs workers who will be, or have been, called upon to take part in the action receives no less than seven days before the day specified in the notice as the date on which workers are intended to begin to take part……and so (para 50)
It is this enforced delay which means that the government has been able to get itself into such a tizzie, not least because it knows the current legislation backs the union into a corner: strike soon or lose the right to do so.
Pre-legislation, UNITE and management would have battered it out to the end, possibly via ACAS. Had a strike then have been in the offing, the union would have had the flexibility to go back to members and postpone the action at the last minute/shortly after it started, pending further negotations.
Now, if they UNITE does this, they’ll have to go through the whole costly balloting process again, in the knowledge that use of the courts to stop action on the grounds of procedural technicalities is positively encouraged by the government.
Back in November, Francis Maude himself recognised this, though his response is – bizarrely – to reduce union flexibility even further:
At present, once a union has voted to strike, a walkout must be held within 28 days or a new ballot must be held. But if a strike is held, the union then has a legal “mandate” for more strikes or other action until the dispute ends.
Mr Maude says the rule gives unions a “perverse incentive” to strike and should be changed.
The Coalition will consider a new legal time limit on the mandate that a union has for industrial action after a vote. The limit could be as low as three months.
The government, it seems, is being hoist by its own anti-union petard. Now, tactically, it will be hoping that the strike does go ahead, and may well be privately urging employers not to negotiate, because that is the only way it can now justify its actions this week.
Effectively, the government has to hope for the worst, because that’s its best way out of this mess.
You may, like me, even hear the raged voice of Galloway as he said these names during the debate with the late Christopher Hitchens, in New York, 2005, when they debated the merits of the war on terror – George Dubble you Boosh and Tawny Baalayre.
Those devilish men made George Galloway. When asked about his incomings once, higher than a kite on a windy day, and his foreign travel, much unlike many of his comrades and enemies in the houses of parliament, Galloway justified them on the grounds that he was having to save the world from imperialism.
Not really, of course. Imperialism comes in many forms. Galloway’s anti-imperialism is against the devil you know – he assumes you don’t know the others. His love of authoritarian politics is something quite profound, often wrapped up in the sort of language we on the left just love.
Do you remember when he interviewed Ahmadinejad? His excellency Galloway would refer to him as. All eyes were on Galloway to mention Sakineh Mohammadi Ashtani, the woman in Iran who was due to be put to death by stoning for supposedly committing adultery.
After so much “softballing” I started to warm to Galloway, perhaps now he’ll mention her. It’s all been nice up until the big finale when Galloway lays into the Iranian president for appealing to backward laws, homophobia and holocaust denial. Nah:
Final question Mr President, every so often an issue comes along, which is seized upon by the enemies of Iran, and magnified, and it becomes a heavy problem. One such is the punishment, scheduled originally against a woman convicted of adultery. The so called stoning case. I see that president Lula from Brazil has asked Iran if he can take this woman into exile there, to solve this problem. Can Iran agree to this? [my emphasis]
Could they? No. Ahmadinejad said in the interview he would “prefer to export technology, not such people to Brazil.” Interview over. The Galloway that destroys US senators in courts of law was reduced to spineless fool.
Galloway made no mention of the fact that even within Islamic law itself, adultery cannot be proven satisfactorily before the perpetrator has confessed under free conditions on three separate occasions, or if four males, whom the court are happy to trust, actually witness the act of penetration – rendering the charge of adultery almost impossible unless these things have been satisfied.
Galloway made no mention of Mohammed Mostafaei, the lawyer of Sakineh Mohammadi Ashtani, who is on the run from Iranian authorities after receiving a course of intimidation from them, who also pray on his wife and his brother in law who have been arrested.
Galloway did not mention the human rights abuses, particularly of women; in fact Galloway missed an opportunity so golden, I fail to see why we should listen to a single further word he has to say.
Mr Galloway knows how to make a clear, tangible argument, and is normally not afraid of doing so. But if he thinks he has satisfied his critics by asking Ahmadinejad a few soft questions, and not challenging him or his legitimacy as both President and bringer of justice, then he is wrong.
Mr Galloway is a coward and no element of the left wing in this or any other country should have anything else to do with him. He represents a perversion of politics based upon befriending those who his enemies distrust, and no sensible political theory or action can rest upon this.
And yet people are about to vote for him tomorrow on a left wing ticket.
He preferred to take his fight against imperialism to the big brother house than parliament when MP for Bethnal Green, and was summarily thrown out there. The Glaswegians didn’t want him as their MSP so he is going to try and take Bradford West.
The Conservative candidate is said to be “delighted” because he is splitting the Labour vote – can’t they see what’s going on here. He doesn’t care about you, or me or Bradford, or Glasgow or Bethnal Green, or Joe Public, or man-in-the-street. He uses these people to champion himself. He is the political Apotamkin, devilish creatures who feed off the blood of others and live forever trying to win elections in areas where they can stoke up tension.
Don’t vote for him Bradford West – he’s a slimey creature who will use you to channel his own perverted views. He is without backbone, without care for social progress. He is Kilroy with a Keffiyeh. He is making fun of the UK and its parliament. Don’t let him be dignified.
The Riots Communities & Victims Panel has reported on the August 2011 riots:
When people feel they have no reason to stay out of trouble the consequences can be devastating. We must give everyone a stake in society……
The Panel spoke to many individuals from deprived backgrounds who did not riot. They told us that they had a stake in society that they did not want to jeopardise.
Which is pretty well exactly what I said on the very first evening of the riots:
Most people from richer areas, who have jobs or who have a good chance of getting a good job, will not riot in the next day or few because their retaining their job or job chance through not getting a criminal record is greater than any of the other incentives I have listed above.
It’s as simple as that.
People from poorer, more deprived areas and backgrounds are rioting for different, shifting motivations, but they are doing so because they do not have enough invested in what the state can offer them to outweigh the benefits of that rioting.
Seven months on, there are less opportunities to invest in society than there were.
Liam Stacey from Swansea is beginning a 56 day jail term for tweeting foul-mouthed, abusive expletives about Fabrice Muamba. He was charged (I assume from press reports about a “racially-aggravated public orderoffence”) under the Public Order Act 1986 (c.64, paras. 18-19):
A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if:
(a) he intends thereby to stir up racial hatred, or
(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.
Stacey entered a guilty plea. The judge passing sentence indicated that the term reflected the “public abhorrence” felt at Stacey’s tweets. I am not immediately clear how this sentencing rationale fits with the charge brought against him.
Meanwhile in Dewsbury, Azhar Ahmed faces trial for his Facebook rant about six soldiers, five from Yorkshire and some very local to him, killed in Afghanistan. The Public Order 1986 charge against him has been dropped – presumably as there was no explicitly racial element in what he wrote – and he has instead been charged under Sec 127 (1) of the Communications Act 2003:
A person is guilty of an offence if he— .
(a) 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; or (b) causes any such message or matter to be so sent.
There is concern amongst those who are worried about the loss of civil liberties that these charges represent a threat to freedom of expression. In particular it has been noted that cyberspace is crammed full of very similar obnoxious and offensive material, and that these charges are either grossly unfair because they single out people who just happen to have been obnoxious and offensive about matters currently high up the media agenda, or set a dangerous precedent for a wider clampdown on the freedom to be a rude as you want in the sanctity of your own internet terminal.
I share these concerns. What to do about it, however, is a different matter. After all, the law is the law, and the police have a duty to investigate potential law-breaking when it is drawn to their attention by the public. The fact that no-one had ever heard of Facebook and Twitter when these laws were committed to the Statute Book is irrelevant as long as the laws stand.
Perhaps, though, we’re looking in the wrong place. Instead of a long and possible futile campaign to change the law, the place to start is with the Crown Prosecution Services’ guide to prosecutors on The Full Code Test. This guides prosecutors on whether they should bring charges, both in terms of the evidence needed and – importantly for our purposes – in terms of whether prosecution is in the public interest.
This section starts with a restatement of the public interest principle
In 1951, Sir Hartley Shawcross, who was then Attorney General, made the classic statement on public interest: “[i]t has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution”. He added that there should be a prosecution: “wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest” (House of Commons Debates, Volume 483, 29 January 1951). This approach has been endorsed by Attorneys General ever since.
The guide then continues to set out (non-exhaustive) factors by which prosecutors then judge whether bringing a charge is or isn’t in the public interest. These factors are too long to set out herein full, but ones that really jump off the page as “tending against prosecution” include:
the seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies; and
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.
Against this, the factors “tending in favour of prosecution” which may be most relevant to the two case in question include:
the offence was committed against a person serving the public; and
the offence was motivated by any form of discrimination against the victim’s ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation or gender identity; or the suspect demonstrated hostility towards the victim based on any of those characteristics.
In the end, whether or not to prosecute will remain a matter of judgment, but those campaigning for freedom of (internet) expression may do well to focus media attention on the well-established convention that not every potentially illegal act should be prosecuted, and that prosecutors need to assess the logic of prosecution in terms of the overall public interest, rather than the immediacy of public outcry.
Lastly, perhaps the Labour party has a role to play in this. Labour lost a significant number of votes in 2010 because it was branded – with some justification – as the party against civil liberties. The Communications Act 2003 is a case in point. A post-New Labour Labour would do well to move beyond this by initiating a new, mature, internet-age discussion about hate speech, prosecution and the public interest, in a way which doesn’t require a changed to legislation, but may be all the more effective for that.