Possibly you don’t recognise these names, though if you don’t you might know the two men concerned as “twitter joke trial man” and “the naked rambler”, respectively. If even that’s not enough to jog your memory, then Paul Chambers has just been acquitted on appeal of sending ‘a menacing communication’ when he tweeted in mild exasperation and with humorous intent ‘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!!’ Stephen Gough, meanwhile, has spent 6 years in prison in Scotland for repeatedly falling foul of ‘breach of the peace’ legislation because he is determined not to wear clothes in public. He has recently been re-arrested and remanded in custody for allegedly committing the same offence.*
So, what do they have in common? You may be expecting me to make some kind of point about both Gough and Chambers being champions for ‘freedom’, and I guess in a sense they are, given a broad enough definition of ‘freedom’. You may expect me to harrumph about the costs involved, though only if you’ve mistaken me for the kind of person who thinks important issues of principle and law only matter if there’s cash involved. If you know me a little better, you might be expecting me to rail against loosely-worded laws that criminalise harmless behaviour. To be honest, I might have written that post – it strikes me as perfectly absurd that people can be potentially imprisoned for a joke (Chambers was only ever fined, but the offence carries a maximum sentence of 6 months imprisonment), or for behaviour that affects no-one but the individual(s) concerned – but the point has been made, extensively, by other commentators. So instead I’m going to focus on an aspect of both men’s cases that doesn’t seem to be so widely discussed: the fact that both were handled under a summary procedure.
In both English and Scots law, a summary offence is one which is tried by a judge, or bench of judges, sitting alone. (Ok, so in England and Wales the ‘judges’ are often magistrates, and in Scotland they’re either sheriffs or justices of the peace, but you know what I mean.) As distinct from an indictable offence – where the finding of guilt or innocence is made by a jury – in a summary trial it’s the judge who finds a defendant guilty or not guilty. In both jurisdictions, summary offences are reserved for less serious cases, while indictable offences cover more serious ones, and it’s not hard to understand why this distinction has come to be. Jury trials are slow and cumbersome, and if every criminal case had to be decided by a jury the efficient administration of justice would become almost impossible – not to mention the fact that the public would be called up for jury service so often that they would rapidly lose patience. Nevertheless, it seems to me that if both Gough and Chambers’ cases had been tried by jury the result would have been rather better justice.
In the Chambers case, much of the criticism has focussed on the suggestion that the verdict reached by the lower courts defied common sense – which is to say the received wisdom of the crowd. It seems highly unlikely that any jury would have convicted Chambers, since the chances that a group of 12 ordinary people would agree with Judge Jacqueline Davies that ‘any ordinary person’ would have been ‘alarmed’ by the ‘clearly menacing’ nature of Chambers’ tweet would be tiny; it’s very hard to find any ordinary person who thinks the tweet was even potentially menacing, never mind 12 who think it’s certain that it was.
The issues are less clear-cut when it comes to Stephen Gough. There are clearly those who think hiking naked should be a criminal offence, and the first time he was brought to trial I suspect a jury would have convicted him. But by the time he had become the clear victim of a cat-and-mouse approach by the authorities – on several previous occasions before his most recent arrest, Gough has been released from prison after serving a sentence only to be re-arrested within minutes by police officers, with the result that he has spent six years in prison for an offence that carries a maximum sentence of two years – it seems likely that a jury might have recognised that this was not in the interests of justice, and might have broken the impasse by finding him not guilty.
The key thing is that in relation to both Mr Gough and Mr Chambers, a jury would have had the freedom to acquit if they so chose. Judges – especially those in junior courts – have very little latitude in applying the law, most particularly in situations where precedent has been established. This is clearly part of the problem Mr Gough presents to the legal authorities in Scotland – having arrested and convicted him once (and having contested Gough’s appeal) it seems to me that they have essentially backed themselves into a corner in which they must always proceed in the same way. A jury, because it is not bound by precedent and is free to return any verdict it likes, could cut through this by finding him not guilty – but because his is a summary offence, he will not be tried by jury.
Clearly, then, there’s a pragmatic reason for arguing in favour of jury trials in these situations, but it seems to me that there’s also a reason of principle for arguing the same thing. In relation to both Mr Gough and Mr Chambers, it is not really matters of fact that are in question. So far as I’m aware, Mr Chambers has never sought to deny he sent the tweet in question, merely that it was menacing in character; Mr Gough, so far as I’m aware, has never sought to deny that he has appeared naked in public, merely that doing so does not breach the peace. Clearly, then, neither is a straightforward situation where guilt or innocence can be established as a matter of fact; in both situations the crux of the issue is a subjective interpretation of the effect or meaning of events that are not in question. This is, it seems to me, precisely the kind of thing that juries are better placed to decide than judges. Because the panel of people deciding on guilt or innocence is larger, and randomly selected, a jury is more likely to accurately reflect the view of the public than a judge. Quite apart from anything else, a jury trial for Mr Chambers would have removed the need for a judge to try and second-guess the reactions of an ordinary person – a panel of ordinary people would have made their own reaction the basis of their verdict.
MPs in glass parliaments shouldn’t throw stones
That’s the main part of what I wanted to say done and dusted, but I also wanted to add some comment on what seems to be an emerging consensus that the Crown Prosecution Service are to blame for the whole sorry Chambers affair. I don’t want to exonerate the CPS completely – it’s hard to understand how that organisation ever reached the conclusion that prosecuting Chambers was in the public interest – but it seems to me there’s plenty of blame to go round.
In particular, the always tiresome Louise Mensch – who has written a Guardian article attaching blame to the CPS and threatening it with an investigation into its ‘colossal waste of public money and attack on free speech’ – might like to consider that it was parliamentarians who passed a law that outlawed the sending of messages that are ‘grossly offensive or of an indecent, obscene or menacing character’ without bothering to define in law what those terms actually mean. And she might like to further consider that, given this abject failure on the part of parliament (albeit, to be fair, a parliament she had yet to join), the only way for the definition to be established was via case law, and that case law can only be made in judgements handed down in the course of actual prosecutions.
Yes, we now know that, for the purposes of this Act, to be menacing a message has both to be intended to be menacing by its author and to be understood as menacing by the people who receive it, but we only know this because the CPS brought their prosecution, and pursued it all the way to this third appeal. If they had dropped the ‘shameful prosecution’ at an earlier stage as Mensch urges in her article, we would still not know what constitutes a menacing message on an electronic communications network, and twitter users would still be operating under the cloud of uncertainty that parliament created when it passed the law in the first place.
It’s easy to blame the CPS for bringing the prosecution, or the courts for returning verdicts that have now been found to be wrong in law and always seemed bizarre to many of us, but the truth is the threat to free speech came from parliament itself. The CPS and the courts have been the mechanism by which the threat has been rolled back. It may be that was inadvertent, at least on the part of the CPS, but there’s no question than in the last 10 years or so the courts have done sterling work defending the rights of citizens against repeated attempts by parliament to infringe them. This is just the latest example of that.
* – To be clear, when I discuss the handling of matters relating to Stephen Gough, I am expressing a personal opinion in relation to his previous convictions, and making no comment at all on the most recent alleged offence for which he is currently awaiting trial.