October 31, 2012

Everybody is in favour of free speech. But the harsh reality is that public order and totally free speech do not go together. And while it is hard to divest the concept of public order from its, sometimes well deserved, public image of uniforms, truncheons and repression, the reality is that almost everybody is in favour of public order. The tricky thing is of course that one person’s necessary restriction on free speech is another’s tyranny; moreover, one person’s necessary bulwark for public order is also another’s tyranny. The even trickier thing is that for yet another person the absence of a particular restriction on free speech and the absence of a particular bulwark supporting public order is anarchy that requires intervention. So much, so obvious.

As the DPP and the community at large debate how to deal with statements on Twitter and Facebook and similar outlets that offend, I am delighted that we have the fine article from Lilian Edwards that makes a strong case for the abolition of the Communications Act 2003, s 127. I am even happier to note that the views she expresses about the origins of that piece of legislation do seem to have percolated through to the DPP, judging from his most recently expressed views. I certainly agree with Lilian’s view that more is needed than what she very accurately describes as the ‘sticking plaster’ of a policy on when to prosecute – that doesn’t deal adequately with problems that arise from poorly drafted law, still less does it deal with the absence of provisions that actually recognise the current publication media, and social media in particular. You should certainly read her article (and the very striking and original thoughts on Chambers v DPP which are contained in the article from Chris Watson and Bailey Ingram) and I cannot say that I will be too surprised if you are more convinced by her views that those that I can merely outline here.

The wonder of social media in the Arab Spring was that one person could broadcast to the world. One could argue that this was the moment that social media came of age. But not everyone who tweets in ways that are restricted by government is a dissident hero. The argument that free speech online is threatened by prosecutions of those who express views on Facebook and Twitter that grossly offend is unanswerable. But I question whether that restriction is any greater than that which applies in the real world – look at the recent ‘T-shirt prosecution’ for an example. The Internet and all its children are so greatly influenced by the entrenched free speech tradition of the USA that expectations do seem higher than in every-day life. But, as the old tag has it, ‘man is not a cow’ and there are certain things that simply cannot be said without an expectation of a breakdown in public order. The law has to have an effective mechanism for dealing with extreme statements or the law will fall (further?) into disrepute. We need a balance that closely follows the real world public order balance, and that includes a need for police intervention short of prosecution where expletives are drink-fuelled and the issuer of the offensive words is prepared to apologise.

I blame Paul Chambers for much of the mess we are in, or rather I blame his case. Since prosecuting him and opposing his appeals was so mind-numbingly daft, it has been hard to have a sensible argument without the shadow of idiotic prosecutions clouding the issue. But I note that, while it is probable that the legislation that is used to prosecute offensive tweets and the like may be ill-formed, most of the prosecutions have resulted in guilty pleas. While some of those seem to me have been ill-advised guilty pleas, that does point to a general acceptance of the law in this area (though clearly not everyone wants to be a crusader). Moreover, while a handful of well publicised cases have resulted in sentences of immediate imprisonment, these may not be typical since the Magistrates’ Courts Sentencing Guidelines require ‘substantial distress or fear’ to have been caused for custody to be the appropriate sentence where a person is convicted under s 127.

My plea is that the Law Commission become involved in reviewing the law. It needs to act quickly. I do not think that the immediate repeal of s 127 is the answer as it has a much wider application than its recently much publicised use might suggest (mainly in relation to one-to-one telephone calls, but beyond that too) and I am not convinced that the alternatives fill the gap entirely adequately. But its repeal might well be appropriate if we can properly review the law in the area, amend the Public Order Act 1986 and create brand new fit-for-purpose legislation that balances the free speech and public order demands. That should be something that the Law Commission can do, hopefully without too much Parliamentary interference.