It seems that giving the European Convention on Human Rights a good kicking is all the fashion at the moment. One expects the bully-boys of the Conservative Party to give the ECHR a bit of a bashing, aided at times by members of the rival UKIP gang. But when three well-dressed mature gentlemen with fob watches and silver handled canes hoved into view, surely one might have thought the bovver boys would flee, the decent old coves pick up the poor battered fellow, dust him down, press a half crown into his begrimed palm and send him peaceably on his way.
But no. Instead Lords Judge and Sumption and Laws LJ (for it was they) launched their hand-finished Grensons in a few well-aimed kicks at the supine body of law that is Strasbourg jurisprudence then stood back to let the nasty parties finish the job.
Former Lord Chief Justice Lord Judge is latest to give his view and his UCL lecture is here: Constitutional change; unfinished business. Lord Judge’s intervention has given rise to a curious suggestion – that in at least one case, Paul Chambers v DPP, (the Twitter joke trial) barristers deliberately avoided making ECHR Article 10 (freedom of expression) points as they knew he was “unfavourable” to them.
So the case of Chambers is presumably a textbook example of how Lord Judge would like the law to operate – with rather less Strasbourg jurisprudence and rather more from the Common Law tradition and good old-fashioned judicial construction of legislation – British legislation.
The case involved Chambers, disappointed to find Doncaster Robin Hood airport was closed a week or so before he was to use it for flying to Belfast, tweeting (to the woman he was to meet there, but of course also to followers and anyone who spotted it): “Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!”
This was a joke but he was arrested, tried and found guilty of “sending by a public electronic communication network” a message of a “menacing character” contrary to s.127(1)(a) and (3) of the Communications Act 2003.
The matter was referred to the High Court, Lord Judge presiding, to answer various legal questions about whether the offence required intent to “menace” anybody, whether “of a menacing character” was “an objective question of fact for the Court to determine?” But also:
“(a) Did the Appellant’s act in posting the message engage his right to freedom of expression under Article 10(1) ECHR?
(b) If so, did his conviction and sentence amount to an ‘interference’ with the exercise of that right?
(c) If so, was that interference necessary in a democratic society for one of the reasons listed in Article 10(2)?
Rather than go to the ECHR or Strasbourg jurisprudence Lord Judge preferred to set the issue in the context of President Roosevelt’s four “essential freedoms” (freedom of speech, of religion, freedom from want, freedom from fear). Judge asserts as a general truth, rather than proves as a legal fact, that the 2003 legislation would not affect rudeness, banter, satire or humour:
“Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation.”
With an obscure reference to unbowdlerised Shakespeare, that is all he has to say about the freedom of speech issue. The rest of his judgment is a perfectly reasonable consideration of whether the tweet could have been menacing in reality and also, in passing, of the mens rea (ie intent) issue. He concluded that there was no evidence anyone found the tweet menacing so “on an objective assessment, the decision of the Crown Court that this ‘tweet’ constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed.” On whether Article 10 was engaged – nothing.
‘The public would be very wrong to take this as a green light to say whatever they want on social media, without consequence. I expect to see the police and CPS bring similar cases to court’ – Chris Watson
Chambers was acquitted, so has no reason to complain, but the Article 10 point was put to Lord Judge (though apparently not argued by the defence) and he was silent on it. He was asked to make a judgment “according to conventional canons of construction [judicial analysis] or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998”. He did the former, not the latter.
Does this matter? Chambers’ acquittal was hailed as a victory for free speech (despite very little in the judgment about free speech), not least by that great proponent of Roosevelt’s first essential freedom Louise Mensch (then Chambers’ MP) who said: “When Parliament returns we will be asking searching questions about why freedom of speech was trashed [by the Crown Prosecution Service].”
In contrast Chris Watson, a social media expert at the law firm CMS Cameron McKenna, said: “The public would be very wrong to take this as a green light to say whatever they want on social media, without consequence. I expect to see the police and CPS bring similar cases to court in an attempt to correct public misconceptions on where the law stands.”
Others are left particularly vulnerable by Lord Judge’s judgment because of his view that the offence in s.127(1)(a) of the Act (sends menacing &c message) was one of basic intent ie it does not require the defendant to act with a specific purpose in mind. He says: “In consequence we are unable to accept that it must be proved that, before it can be stigmatised as criminal, the sender of the message must intend to threaten the person to whom it was or was likely to be communicated, or that such a specific purpose is a necessary ingredient of the offence.”
So, if someone had purported to find the tweet menacing, Chambers would have been in trouble even if he clearly did not intend it to be menacing – because it was a joke.
Free speech is being chipped away by UK legislation, in part by the anti-social behaviour agenda and perhaps legitimately if diverse communities are to live together, but also in the context of the “war on terror”. It would be useful to know where the limits are, how far we should go before the restrictions cease to be “necessary in a democratic society”.
If, crucially, someone had found the tweet menacing or simply alarming (on their own estimation), would the courts have nevertheless seen the joke and allowed Article 10 rights to be engaged? We don’t know. There is nothing directly enshrined in English law protecting free speech and so it would have been useful to find out to what extent European Convention law does the job indirectly – how far the anti-terrorism and anti-social behaviour agenda has its limits.
We need to know. So Lord Judge has got a week and a bit to get his shit together and tell us – otherwise …*
Addendum 2015: The case of student diversity officer Bahar Mustafa, who allegedly sent a threatening communication by tweeting the hashtag #killallwhitemen on Twitter will test how far there might be free speech for offensive material in England in the context of the “antisocial behaviour” agenda noted above.
Further note: This case has been dropped (3/11/2015
* Only joking :-)
A critique of Lord Sumption’s and Lord Justice Laws’ view of the ECHR is here with links to their lectures on the issue: They come to bury the ECHR, not to praise it
Lord Judge gave his views on the ECHR to the Lords Constitution Committee, reported here: Lord Judge says ignore Strasbourg – or does he?
The UK Human Rights blog gives a round-up of the various judicial views on the ECHR here. Roger Masterman looks at UK judges’ “Strasbourg-avoidance techniques” here: The Mirror Crack’d (UK Constitutional Law Blog).
Baroness Hale’s lecture, which also deals with the ECHR is here: Warwick Law Lecture. She notes that Conservatives once favoured the ECHR as a bulwark against totalitarianism.
Here is Crown Prosecution Service advice to prosecuters on communications sent by social media.
A note on Common Law
Those who prefer a distinctly British non-ECHR approach to human rights see the English Common Law as the significant protector of those rights. In fact, since it is not constitutionally embedded (unlike the US constitution), Parliament can change any aspect of it at any time. On top of which Common Law is pretty thin stuff, far more about the boundaries set in the struggle between the ruling classes and the haute bourgeoisie that culminated in the 17th century than about protecting ordinary people’s rights. Thus:
• Common Law doesn’t protect free speech, except in Parliament. The US Constitution corrects this in the First Amendment but doesn’t, of course, apply to Britain.
• The Common Law may protect the “secret cabinets and bureaus of every subject” when the King’s messenger comes calling without a legal warrant (Entick v Carrington  EWHC KB J98) but not if GCHQ downloads all your stuff for its perusal at leisure. The ECHR and EU law probably do render such activity illegal (it’s not been tested in court yet, but see this).
• The Common Law does not protect you from torture; it merely asserts torture is not part of Common Law – thus turning a blind eye when it was used under Royal Prerogative. Again the ECHR and international treaty (The 1987 United Nations Convention Against Torture) does offer redress – and required Britain to enshrine such protection in legislation as late as 1988 in the Criminal Justice Act (see this for explanation: Torture, a history of hypocrisy).
• The Common Law does not protect privacy, only “confidentiality” – not the same thing at all. It is only thanks to the Human Rights Act that courts are now able to develop a privacy law – since Parliament, quivering in the face of the over-mighty tabloid press, refuses to do so. This is explained here: Privacy, horizontality and judicial underwear
We would be very unwise to leave our human rights to the British government, of whatever complexion, or even, on the evidence of recent lectures, to the current crop of judicial giants, lining up as they are to do the Government’s nasty business.
Interesting: Piece on Common Law’s limited interest in free speech: