Wednesday, 18 December 2013

John Cooper QC on Social Media and the Law

John Cooper QC and Paul Chambers of #TwitterJokeTrial

Below are the blunt words of Keir Starmer QC, the former Director of Public Prosecutions (DPP). And why the bluntness? The former head of public prosecutions in England and Wales was obviously angered by the criticism delivered by experienced criminal silk, John Cooper QC (@John_Cooper_QC) who cast doubt on the newly published (December 19 2012) interim social media prosecution guidelines. Here's what he said:
“Well I don’t think John Cooper with all respect has seen anything like the number of cases I have. I don’t think he has thought about the sophistication of the issues. There are many cases…I mean he can point to one case [the Twitter Joke Trial]…yeah he makes a cheap point about one case. I've got to deal with the many thousands of cases that come in; I've got to deal with all the chief constables. So, yes, nice cheap point, but actually let’s get back to reality.”
See John Cooper QC's response to Keir Starmer QC. The man can take abuse.

See below the Louise Mensch (@LouiseMensch) tweet and her clear contempt for the comments by Keir Starmer QC. You'll see why later.

What got Starmer's back up? John Cooper QC had said that the guidelines were simply a 'rehash of the old law'.

Speaking on Radio 5 John Cooper QC said that the guidelines were "totally and utterly unnecessary" and said that the 25 pages would have been better condensed into “two words: common sense”.

Although the famous tweeting lawyer David Allen Green, tweeting from (@JackofKent) was a little more optimistic about the CPS efforts on the law surrounding social media.

All this verbal kickaboutery happened December 19 2012, the day the social media guidelines were published. The following Saturday, December 22 2012, Charon QC (@Charonqc+Charon QC Charon QC unpacked the events over a lively podcast discussion. You can listen to the original podcast here. Otherwise I've transcribed roughly word for word the conversation as it happened. I pretty much left things with 13 minutes to go. Not a huge deal missed out on but intend to update at a later date. (Emphases are always mine).

Charon QC kicks things off with his analysis of the guidelines. Here he is:
'Basically the guidelines seem at first blush reasonably clear. There are general principles that prosecutors can only start a prosecution so long as the case passes the test set out for Crown prosecutors. And that test has two stages: 
The first is the requirement for evidential sufficiency. 
The second involves consideration of the public interest. 
Now those are the guidelines for prosecutors in every case. The actual guidelines in terms of a social media prosecution set out at paragraph 12.'

Charon QC recites each of the four points in turn and then John Cooper QC comments.
'I put it from the guidelines. Initial assessment paragraph 12: communication sent via social media are capable of amounting to criminal offences and prosecutors should make an initial assessment of the content of the communication and the course of conduct in question so as to distinguish between: 
One, communications which may constitute credible threats of violence to the person or damage to property.
Two, communications which specifically target an individual or individuals and which may constitute harassment or stalking within the meaning of the protection from harassment act 1977 or which may constitute other offences such as blackmail. 
Three, communications which may amount to a breach of a court order; this can include offences under the contempt of court act 1981 or section 5 of the sexual offences amendment act of 1992. All such cases should be referred to the Attorney General and via the principle legal advisers team when necessary. 
Four, communications which do not fall into any of the categories above and which can be considered separately, see below: 
Those which may be considered grossly offensive, indecent, obscene or false. 
So those are the general initial assessment guidelines. John, what’s your analysis of the need for these guidelines?'

John Cooper QC:
'Well I think what we need to do is take it back to basics and read those guidelines carefully because what those guidelines are is simply a restatement of a number of very important and very sensible laws. 
And what the DPP seems to be saying is that if someone issues a message or any communication on the social network which is in breach of a court order, which stalks, which causes harassing conduct or which is grossly obscene or which is threatening - then they should have a prosecution considered against them. 
Further more, the guidelines say it is not a new development that the prosecutor should take into account the normal prosecutorial guidelines. That is considering whether there is a reasonable chance, say a 50-50 chance of success and whether it is in the public interest to do so. 
Those of your listeners who are legally trained or who are simply interested in the law will immediately realize from that description that I've actually said absolutely and utterly nothing new; and the point that I think is important in the debate here is why is it firstly: that prosecutors need a motherhood and apple pie of the law written into a guideline? No. Let’s develop this a little and then we can talk about it. But I think it’s important that I lay this down after the DPP’s comments today on the Radio 4 programme. 
In my view these guidelines only came about because of, how shall I put it, daft or incongruous interpretations by the Crown Prosecutions Service as to whether to prosecute in a number of cases. 
The #TwitterJokeTrial (listen to July 2012 podcast on the trial with John Cooper QC here) (also listen to SoundCloud clip here where David Allen Green discusses '#TwitterJokeTrial and Beyond') is but one of them. So this is why these guidelines have come about. Not because the public were necessarily confused at the time but because the CPS had made confusing decisions.'
The public and public figures were largely unimpressed by the Crown Prosecution Service decision to prosecute Paul Chambers (@pauljchambers). Below is an image of the offending tweet.

Paul Chambers was convicted and dragged through the courts for a number of years. In the end he successfully appealed against the conviction and you can read the full judgement on the case Paul Chambers v DPP here.

Back to John Cooper QC:
'Now, finally this before we can open up the discussion. There are always going to be people in society that are going to do despicable things. There are always people in society who sadly are going to harass, going to threaten and others who are going to breach court orders. 
These people are going to do it on social media as much as they are going to do it generally. The guidelines were not necessarily for these people. Stupidity and reprehensible behaviour will always continue. The only reason these guidelines were produced was because the public were confused by irrational CPS decisions.'

Charon QC: yes, I think that’s a fair summation. And we’ll just focus in on two points:

'Firstly, because of the particular tests used by prosecutors that there must be a credible chance of getting a conviction – 50-50 if you like (although Keir Starmer has denied the existence of such a test in an earlier podcast with me some time ago). 
Secondly, even if there sufficient evidence it may not be in the public interest to prosecute in which case prosecutions will not go forward. 
And that tends to suggest to me a degree of discretion which could perhaps be dangerous if we’re trying to put guidelines together to secure consistency of approach. And the second thing is, it still leaves open very much the question of: what is grossly offensive, indecent or obscene to the CPS to determine.'

John Cooper QC:
'Well absolutely and within those two questions you raise a myriad of issues, so let me break that down.

First of all the prosecution do have a discretion in general criminal cases and that is perfectly proper in a general approach to prosecution. Sometime the law has been technically broken and chances of prosecution go beyond 50-50 but the defendant may be so old and aged or the offence is a very old law, then it may not be in the public interest to prosecute.

I do think that there should always be a prosecutorial discretion.

But your second question. That is a discretion for the CPS to interpret if comments are grossly offensive or indecent and so on so forth. That is worrying. It’s also worrying I should say because the DPP has said whatever you think of these guidelines, the police need not follow them.

The DPP has said this in terms that the police need not follow these guidelines. So whatever decisions the CPS make, the initial stage of arrest and the initial stage of questioning (and as far as Paul Chambers was concerned – at the place of work) is uninfluenced by these guidelines. These are not guidelines for the police.

When it comes to the CPS, it is worrying because on the fringes and on the edges of interpretation lie the mistakes. Lets use the example of Paul Chambers to flesh this out (I should add that this isn’t the only case that I’ve dealt with concerning social media despite the DPP implying that it was. I was involved with Nicola Brookes and the Ched Evans case as well. Taking Paul Chambers as an example of interpretation, one of the points the DPP made in his piece to Victoria Derbyshire on 5Live was that the Chambers decision made by the CPS had in fact been agreed by the magistrate and the Crown court judge as if in to say, well it was a reasonable mistake wasn’t it.

That needs to be put into context when one considers interpretation. In the Paul Chambers case both the police and the airport security (before the CPS got involved in this) were of the view that what Paul said was a joke. A bad joke and perhaps an inappropriate joke, but a joke.

And it was only the CPS when they got hold of it who interpreted it in a different and surprising way. And it is that level of interpretation that is still available to the CPS after these guidelines.'

Charon QC:
'That’s just one part of it John. That’s the menacing character and for the benefit of the listeners, credible threats of violence may also fall to be considered under section 127 of the Communications Act of 2003. Which prohibits the sending of messages of a menacing character by means of a public telecommunications network.
Now the Lord Chief Justice in Chambers v DPP, he made it very clear and I quote: 
‘A message which does not create fear or apprehension in those to whom it is communicated or may reasonably be expected to see it, falls outside section 127 1 (a) for the simple reason that the message lacks merit.’
So we've got a pretty clear guideline from a very senior judge on that aspect of it.'

John Cooper QC:
'As the debate has gone on in recent days the DPP made a point of saying let’s leave the #TwiterJokeTrial and move on. But the fact is that there were some very important observations made by the Lord Chief Chancellor during the Paul Chambers case which we should not move on from.

And the important thing there was that there should be strict interpretation and careful interpretation without the use of conjecture when it comes to what he said on the social media.

The question is: how is that done?

And the real issue here is and we really have to get back to basics, it’s common sense. Just as we tell people when they use social media that they don’t leave their common sense at the other side of the ‘@’ sign, we also have to say very clearly that when the prosecutors consider prosecuting, they don’t leave their common sense on their desks that they would generally use in other areas of the law. There has to be a proper interpretation of what’s going on here.'

Charon QC:
'That is a fair point John but we've just dealt with the menacing character and that’s well covered by the Chambers case, but there are other potential unfortunate acts of behavior that could be done through Twitter and Facebook and that is communications which target specific individuals.

Now that is covered also in the guidelines. If you actually target an individual and area abusive, you can actually be dealt with under the Protection from Harassment Act 1997 where the course of conduct amounts to that within section 7 of that Act. In such cases the guidelines say prosecutors should follow the CPS legal guidance on stalking and harassment.

We seem to have guidelines on everything.'

John Cooper QC:
'Well we’ll come onto the guideline fetish a little later. It’s also linked into the increasing trend towards regulation. It’s the same sort of trend that ‘s trying to regulate the press, regulate the social media as if there should be an A-Z of criminal procedure which I've got my problems with. But going back to your point there are examples and methods of prosecuting people who have misbehaved and potentially commit criminal offences on the social media.
Yes as I've said at the top of this podcast, I've assisted in representing Nicola Brookes as well and the legal team there used the surprising method of the Norwich Pharmacal Order which hitherto had been used to in civil cases to get information from third parties which might assist litigants in identifying those third parties so in proceedings, communications could be at least be had with them to see if the alleged communications matter.

In the Rebeccah Brookes case the legal team used the Pharmacal Order to get the details of someone who was allegedly saying things which were potentially actionable by Nichola Brookes.

So there are methods that are available in the general law. The general law is developing apace; the use of the Norwich Pharmacal Order. The law is developing but going back to your other point the question is on regulation. There is a trend which I’m concerned with generally about the requirement of regulation of the press.

I’m totally against the regulation of the social media. I do happen to be against the regulation of the press as well.

But the fact of the matter is that guidelines are just another development of that. Now the present DPP seems to favour the use of guidelines. He’s issued guidelines for the media and guidelines on assisted suicide, though on the latter he was obliged by a court to do so on.

However I am concerned about the voluntary trend to tie down with a sort of rigidity the decision making which takes out of it common sense discretion. And widening this out a little I include sentencing. The Sentencing Council guidelines continue to come apace.

It’s all one of a part of a view that I have that guidelines and all manner of criminal jurisprudence needs perhaps to be drawn back. Sometimes we need to rely on the correct training of lawyers, proper exercise of proper sensible common sense discretion. Because 9 time out of 10 criminal law doesn’t have a complex basis as we establish it. Interpretation of it 9 times out of 10 is down to common sense gut instinct.'

Charon QC:
'Ignorantia juris non excusat is a maxim we know: ignorance of the law is no defence. And perhaps it could be argued that ignoring the guidelines, as a tool for eradicating error and perhaps to produce consistency, that because they’re so publicly announced now on television and in the media. That it gives the users of social media a reasonable chance of not offending the law.'

John Cooper QC:
'The majority of people who break the law on social media are doing things that they would not do in public. And if they were the sort of people that would do that in the public arena, then they’re not going to be the sort of people that wouldn’t do it on the social media arena. And the point I’m making perhaps is that guidelines and regulations are not necessary for the vast majority of people who know how to behave. 
It goes back to section 12 of the guidelines. All of it is accepted as generally known law by the CPS. And taking out the legal terminology all of it is generally understood by the public. 
You don’t harass, you don’t stalk, you don’t breach court orders and you don’t make threats.'

Charon QC:

'The problem is that often people retweet information about a case without realising that they might be in contempt of court. And it’s surprising really in fact, even journalists get this wrong. We had John Henning MP effectively use Parliamentary priviliege to break an injunction. 
How is Joe public supposed to know that there is a court order over information as journalists would automatically know?'

John Cooper QC:
'There’s nothing in the guidelines about how the public would come to know what are they are injunctions and I realise that this is a problem. Discussing whether the DPP guidelines are necessary, they couldn’t possibly solve that issue.

But another point: you said that people often retweet with a feeling of impunity perhaps. You know that might have been the case a year ago but people that use the social media are aware of the big mistakes that people have apparently made by retweeting.

I would suspect with any social activity there is an organic growth of knowledge. I would suspect this: the average user of the social media is far more aware this Christmas (December 2012) than they were last Christmas (December 2011).

It’pretty obvious I suspect, how to behave.

Charon QC:
'Going off piste a little here but we’re going to have libel reform pretty soon. The point Im making here in reference to my last point about the guidelines is that the guidelines are there to produce a degree of consistency (although you say not so and I have some sympathy for that) but Keir Starmer QC failed to go into issues such as contempt of court and how it applies and nor did he even consider the issue of libel.'

John Cooper QC:
'What’s interesting is that Law Commission are currently considering it themselves and that is relating to contempt for court and that will be interesting to see what we get there. But yes there are matters which are far wider matters than the guidelines intend to deal with.

But again it comes back to the common sense point. If something is reprehensible or liabellous or defamatory then care has to be taken on how that continues to be propagated around the community. Around society.

There are lot of issues concerning the development of libel law, a matter that is developing at the moment and some of your listeners may have read about in the Independent last Saturday is the potential action against the security services for libelling the only British Guantanamo detainee.

These are all big issues as far as libel and contempt is concerned. They are going to have to be dealt with. But if I can just mention something on the interpretation of the guidelines which is very important and of concern. During the course of the DPP’s discussion on Radio 4, on two occasions he said that he was concerned to police deeply unpopular messages.

That is one of the most concerning aspects. If we heard that from someone in the Russian ministry we’d perhaps be up in arms.'

Charon QC:
'Now the fourth category in the guidelines concerns this. Are we to try and police the internet in this way? Can it be done? Are we entering into what the Informm blog wrote, ‘King Canute territory’?

John Cooper QC:

'The first thing to say is whether it is impossible or not – and I would tend to agree that we are in ‘Canute territory’ – I am utterly against that. I’m not against the proper use of the criminal law and when appropriate the clear and assertive use of the criminal law. But I am also against planting down even on unpleasant speech and communication.

As I've said before, freedom of speech is a difficult friend at times but a friend that we need. Sometimes in supporting freedom of speech, which is freedom of speech to speak out about inequalities and oppression, we will have to put up with deeply unpleasant communication.

Freedom of speech is often confused with the freedom to say nice things. It is a nightmare to get into the sort of territory that the DPP seems to be getting into during his Radio 4 interview.

But in short, let me make my position clear: I am against the regulation of the social media. We have to put up with deeply unpopular and unpleasant observations that are made.'

Charon QC:
'We need clarity from the courts on what amounts to offensive because it is by no means clear.'

John Cooper QC:
'Before straight-jacketing with guidelines and regulation and so on, we really should allow society to breath. Let the baby be born as it were before we start restricting it.

Before we start jumping on social media, what I regard as very vibrant and exciting, as we seem to be doing at the moment, we need to remind ourselves that it’s only just arrived. We’re talking about 2003 and 2006 as far as Facebook and Twitter are concerned. At the turn of 2012 and 2013 as we speak, these media are barely 6 years old.

Now before we start jumping all over them, effectively strangling them at birth, we should perhaps allow things to develop naturally. The vast majority are far more knowledgeable about what they can do this Christmas (December 2012) than last Christmas (December 2011). And i would suspect that at Christmas 2013 there will be even more understanding of the medium.

Though there will always be people, as in society, who will want to push the edges into criminality and those people should be prosecuted.'

Charon QC:
'Let’s just consider this postulate for the benefit of the storytelling. Someone says something grossly offensive on Twitter but they fall outside the jurisdiction.'

John Cooper QC:
'When Twitter and Facebook are asked properly and formally about someone they will disclose that person’s identity and they are getting better and better at this. Things are developing organically.'

This post was originally posted on the Twitter for Lawyers blog here

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