Foul-mouthed tirades and the public interest
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.