What freedoms we have in Britain have not come as a rule from revolutions and thunderous declarations of the rights of man. More often than not, our liberties have come because bloody-minded and obstinate men and women have squared their shoulders and decided to fight an arbitrary decision, when others would have surrendered.
Paul Chambers has the right to claim a good deal of credit for compelling the Director of Public Prosecutions to stop treating offensive but harmless remarks as crimes. I won’t go through his case in detail because I have told his story elsewhere. But in brief Paul was planning to fly to Belfast to visit a woman friend. He saw on the news that snow had closed Robin Hood Airport and tweeted to his friends, “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!” It was a bad joke. The sort of thing people say all the time. An official at Robin Hood airport searched Twitter to read what others were saying about his employers. He saw Chambers’s tweet and passed it to the security manager, who decided it was a “non-credible threat”, which of course it was.
But the regulations said that airport security had to pass all threats – credible or incredible – to the police. Detectives arrested Chambers at his workplace in front of his employers, who promptly fired him. The police also decided that the “threat” was non-existent. But the Crown Prosecution Service still prosecuted Chambers under the deservedly infamous Section 127 of the Communications Act 2003, which prohibits any message sent ‘by means of a public electronic communications network’ which is ‘grossly offensive or of an indecent, obscene or menacing character.’
If you want to know why it is infamous, consider how many millions of tweets, comments and Facebook fall within its terms. As with all catchall laws, the question arises, why do the authorities prosecute? In this instance, it seems to be a jobsworth’s attempt by the CPS to justify the waste of time of the police investigation by charging Chambers with any offence that came to hand.
Doncaster magistrates found him guilty, fined him £385, and ordered him to pay £600 costs. Most people would have given up then. They would reason that the trouble fighting a crass and arbitrary conviction would be too great. Paul fought on. He eventually joined his girlfriend in Belfast and found a job. When he told his new employers he had an appeal against conviction coming up, they fired him too.
At every stage in his battle to get the conviction overturned, Keir Starmer the Director of Public Prosecutions, tried to stop common sense making one of its rare appearances in an English courtroom. In May last year, Chambers’ lawyers formally asked the CPS to drop its opposition to Chambers’ appeal. In June, the CPS entered negotiations, reached an agreement and sent Chambers’ lawyers a draft of an order to end the case. Chambers was relieved naturally. The case had given him a criminal record and lost him two jobs. His relief turned to incredulity when at the last minute the CPS told his lawyers that Starmer had insisted on a fresh hearing before the Lord Chief Justice.
When I covered Starmer’s intervention in the Observer, the DPP’s office issued a statement saying that ‘the DPP was not the decision maker in this case, nor did he overrule his subordinates. Consideration was given to conceding the appeal, but as a matter of law this was not possible.’ Cynics assume that governments mislead all the time. In my experience, however, they are normally quite careful about public statements. This was the first time in years I had caught a government press office giving out information I knew was not true. More to the point, Chambers’ solicitor David Allen Green knew it was not true either. He told the DPP that CPS lawyers had told him that Starmer made the final decision to contest the appeal at the High Court.
Very quietly, in the hope that no one would notice, the CPS backed up Allen Green’s account. It wiped its original press release from the Web. Its new one accepted that the DPP had ‘reluctantly agreed’ that the prosecution had to proceed whatever his subordinates had negotiated with Chambers’ lawyers. The DPP had no choice, the CPS press office said. Starmer could not walk away because ‘the key finding against Chambers had been made in the Crown Court’, and only the High Court could overturn it.
Alas, the CPS’ second attempt at getting the law right failed too. It was never suggested that the DPP somehow quash the conviction himself. Fortunately the Lord Chief Justice did. Now not only has Paul had his name cleared but the outrage his prosecution produced has led to the DPP introducing some sensible guidelines.
Starmer tells prosecutors that the criminal law already covers case of harassment, stalking or other violent threats. He says grossly offensive messages should be ‘subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest’. The CPS then seeks to define ‘grossly’ offensive, at least in the negative, as cases which are more than:
• Offensive, shocking or disturbing; or
• Satirical, iconoclastic or rude comment; or
• The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.
There are still many problems. Section 127 remains law. And the state’s continued willingness to prosecute offensive remarks, which do not incite a crime, remains a breach of liberal principles.
However, I won’t carp today. The happy moral of this story is that it is always worth fighting. Paul Chambers would be the first to describe himself as an ordinary bloke. But because he fought an injustice when most people, ordinary or not, would have given up, we are a slightly better and slightly freer country.