Is this really worth 12 weeks in prison?
Discussion
It seems he was done for "grossly offensive messages" under s127 of the Communications Act 2003. The same bit of legislation (though different para) was used to hound Paul Chambers thru the courts for his daft tweet about Robin Hood Airport.
Paul Chambers was fortunate enough to win the backing of some prominent and sensible lawyers who eventually, at the high court, had is conviction overturned.
This chap, arrested on Saturday, remanded and in court on Monday had no such opportunity to even seek help or advice from the likes of solicitor for Chambers, David Allen Green, or from his extended twitter following, many of whom know this piece of legislation inside-out.
My guess is that the duty solicitor advised him to plead guilty (not expecting custodial) because that's pretty much all duty solicitors seem to do. He clearly saw no value (or more likely saw legal aid costs) in putting forward arguments about intended audience, context etc.
What apparently neither of them knew is that the legal definition of 'grossly offensive' seems to be from settled in the case of the Comms Act 2003. The overturning of Chambers conviction was the first of a number of cases of s127 judgements being overturned on appeal.
See also the case of Sir Olly C (aka John Kerlan) whose conviction under s127 was overturned on appeal, the judgement turning on the definition of 'grossly offensive'.
Such is the uncertainty that after a number of 'egg on face' rulings, Keir Starmer, the utterly detestable DPP, has called to convene a "social media roundtable" to discuss:
Almost sublime in its irony, this event took place today.
I despair.
Paul Chambers was fortunate enough to win the backing of some prominent and sensible lawyers who eventually, at the high court, had is conviction overturned.
This chap, arrested on Saturday, remanded and in court on Monday had no such opportunity to even seek help or advice from the likes of solicitor for Chambers, David Allen Green, or from his extended twitter following, many of whom know this piece of legislation inside-out.
My guess is that the duty solicitor advised him to plead guilty (not expecting custodial) because that's pretty much all duty solicitors seem to do. He clearly saw no value (or more likely saw legal aid costs) in putting forward arguments about intended audience, context etc.
What apparently neither of them knew is that the legal definition of 'grossly offensive' seems to be from settled in the case of the Comms Act 2003. The overturning of Chambers conviction was the first of a number of cases of s127 judgements being overturned on appeal.
See also the case of Sir Olly C (aka John Kerlan) whose conviction under s127 was overturned on appeal, the judgement turning on the definition of 'grossly offensive'.
Such is the uncertainty that after a number of 'egg on face' rulings, Keir Starmer, the utterly detestable DPP, has called to convene a "social media roundtable" to discuss:
The DPP said:
Points for discussion are as follows:
1. What is the balance that should be struck between free speech and the application of the criminal law?
Is it the business of the police and prosecutors to protect the sensibilities of individuals or groups against what many people would consider to be bad taste? Simply because the view expressed is controversial or unpopular and may cause offense is not in itself enough for criminal charges.
2. Is it agreed that Parliament set the threshold in the criminal law high? The law talks about a criminal offence being committed if a message is “grossly offensive” or of a “menacing character”.
Section 127 of the Communications Act 2003 is concerned with “improper use of public communications network” makes it an offence if a person “sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”.
It is also an offence if a person “for the purpose of causing annoyance, inconvenience or needless anxiety to another, he... sends .. a message that he knows to be false”.
3. When considering whether a prosecution is in the public interest, should one or more of the following make a prosecution more likely?
- the message is part of a campaign of harassment against an individual or group
- the message is a threat against the life or wellbeing of the recipient and/or the a member of the recipients family or other loved ones. (Should recipient be “individual”?)
- the message, on an objective consideration, is malicious - the message is an incitement to hatred on grounds of race, religion, disability, or sexual orientation (and ethnic or national origin?)
- the message causes considerable distress to the recipient and/or their family or loved ones.
Are there any other relevant considerations?
4. When considering whether a prosecution is in the public interest, should one or more of the following make a prosecution less likely?
- the message is a one-off incident
- the message is intended to be humorous
- the message is not directed at a specific individual (or group?)
- the message was not intended to become public or become known to the individualwho is the subject of the message
- the sender of the message has expressed genuine remorse
- the individual (or individual’s family), subject to the message, is not istressed by the message.
Are there any other relevant considerations?
5. Where should the law be directed if a message is retweeted or resent by another without the knowledge of the initial sender or against their wishes?
6. Should police and prosecutors become involved if the message is sent from outside the UK to an individual living here? Or from the UK to an individual living outside the UK?
7. To what extent are messages being sent by social media one for the social media industry rather than the criminal law? Should the industry be active in moderating its sites?
http://blog.cps.gov.uk/2012/10/points-for-discussi...1. What is the balance that should be struck between free speech and the application of the criminal law?
Is it the business of the police and prosecutors to protect the sensibilities of individuals or groups against what many people would consider to be bad taste? Simply because the view expressed is controversial or unpopular and may cause offense is not in itself enough for criminal charges.
2. Is it agreed that Parliament set the threshold in the criminal law high? The law talks about a criminal offence being committed if a message is “grossly offensive” or of a “menacing character”.
Section 127 of the Communications Act 2003 is concerned with “improper use of public communications network” makes it an offence if a person “sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”.
It is also an offence if a person “for the purpose of causing annoyance, inconvenience or needless anxiety to another, he... sends .. a message that he knows to be false”.
3. When considering whether a prosecution is in the public interest, should one or more of the following make a prosecution more likely?
- the message is part of a campaign of harassment against an individual or group
- the message is a threat against the life or wellbeing of the recipient and/or the a member of the recipients family or other loved ones. (Should recipient be “individual”?)
- the message, on an objective consideration, is malicious - the message is an incitement to hatred on grounds of race, religion, disability, or sexual orientation (and ethnic or national origin?)
- the message causes considerable distress to the recipient and/or their family or loved ones.
Are there any other relevant considerations?
4. When considering whether a prosecution is in the public interest, should one or more of the following make a prosecution less likely?
- the message is a one-off incident
- the message is intended to be humorous
- the message is not directed at a specific individual (or group?)
- the message was not intended to become public or become known to the individualwho is the subject of the message
- the sender of the message has expressed genuine remorse
- the individual (or individual’s family), subject to the message, is not istressed by the message.
Are there any other relevant considerations?
5. Where should the law be directed if a message is retweeted or resent by another without the knowledge of the initial sender or against their wishes?
6. Should police and prosecutors become involved if the message is sent from outside the UK to an individual living here? Or from the UK to an individual living outside the UK?
7. To what extent are messages being sent by social media one for the social media industry rather than the criminal law? Should the industry be active in moderating its sites?
Almost sublime in its irony, this event took place today.
I despair.
CarZee said:
My guess is that the duty solicitor advised him to plead guilty (not expecting custodial) because that's pretty much all duty solicitors seem to do.
I have no idea whether David Edwards (the solicitor) represented him during his stint as the duty dog or whether he was instructed as own client. It doesn't really matter which.
He probably faced a prosecutor objecting to bail on the grounds that the defendant needed to be remanded for his own safety. Given the tales of a 50 strong mob baying for his blood, the prosecutor had a pretty strong argument.
So the defence lawyer makes the expedient decision to plead the defendant and get the case weighed off, anticipating that his punter would have a better chance of getting out.
But the magistrates impose an immediate custodial sentence. That's a pretty tough disposal.
But it is only 12 weeks. The defendant will serve half of it, before being automatically released. He might even get out sooner on a home detention curfew.
So he probably has about four or five weeks to do.
And he might be out sooner if he gets bail from a Judge at Preston Crown Court pending appeal against sentence.
Now if he had pleaded not guilty, I reckon that it would take at least a couple of months to get a trial date. And in the mean time he would very probably have been remanded in custody.
An acquittal following a two month remand is something of a pyrrhic victory if you would have been out quicker on a plea. Which is precisely the logic that was applied to the case by the lawyer.
Dave Edwards is an experienced and shrewd chap. I'm pretty sure he made the right call.
If he was duty dog he will have been paid less than £100 for his services. If he was legally aided he will have earned a fixed fee of £221.59 (plus VAT of course....)
http://news.sky.com/story/994920/april-jones-man-j...
Thick
posts joke about dead 5 year old, mob of 50 odd descend on his pit ( prob to kill him ) police arrest him, locked up to keep him safe by the looks of things.
Thick
posts joke about dead 5 year old, mob of 50 odd descend on his pit ( prob to kill him ) police arrest him, locked up to keep him safe by the looks of things.
Pat H said:
An acquittal following a two month remand is something of a pyrrhic victory if you would have been out quicker on a plea. Which is precisely the logic that was applied to the case by the lawyer.
Dave Edwards is an experienced and shrewd chap. I'm pretty sure he made the right call.
If he was duty dog he will have been paid less than £100 for his services. If he was legally aided he will have earned a fixed fee of £221.59 (plus VAT of course....)
It must be comforting to be able to take such a mechanistic view of it.Dave Edwards is an experienced and shrewd chap. I'm pretty sure he made the right call.
If he was duty dog he will have been paid less than £100 for his services. If he was legally aided he will have earned a fixed fee of £221.59 (plus VAT of course....)
Where is the certainty that he would have been remanded pending trial, given the sentencing guidelines for the offence?
More to the point, why weren't the baying mongs outside his house nicked for whatever laws apply?
Pat H said:
But it is only 12 weeks. The defendant will serve half of it, before being automatically released. He might even get out sooner on a home detention curfew.
For making assertions that people on here and elsewhere make on a daily basis. Jokes etc about death and what not are hardly rare.Hardly right or fair IMHO. I despair at the thought crimes and diminution of our freedom of speech.
http://www.dailymail.co.uk/news/article-2214652/Un...
....
The solicitor said Woods explained what had started as a joke had gone wrong.
'He realises this will have a profound effect on him,' he continued. 'With the publicity that has followed he will be known as the man who made these comments on Facebook.
He has to live with this because of his stupidity. His future is uncertain. He does not know whether he can go back to his home address.
'He fully accepts he was the author of his own misfortune. Nothing like this is going to happen again. He appreciates what he has done and puts himself at the mercy of the court.'
He asked for a community service order to be considered but the bench was told that custody could be imposed for anyone who is convicted of using extreme language that causes substantial distress or fear to another.
The bench asked for a pre-sentence report from a probation officer and said it would keep all options open ahead of sentencing, which is set to take place from 2pm today.
The jail term was imposed just hours after the same magistrates fined a man £100 and ordered him to pay £100 compensation after he racially insulting a black woman.
The woman had been driving her car in Chorley when she heard the defendant directly shout at her: 'you black f****** c****'. When she stopped and confronted him he screwed up a piece of paper and threw it at her face.
WTF???
Seriously, I do not get this. A stupid, immature, drunk teenage who thought he was being clever and funny ends up behind bars and yet someone who makes a very direct and offensive insult to an actual person gets a £100 fine? Bonkers!
....
The solicitor said Woods explained what had started as a joke had gone wrong.
'He realises this will have a profound effect on him,' he continued. 'With the publicity that has followed he will be known as the man who made these comments on Facebook.
He has to live with this because of his stupidity. His future is uncertain. He does not know whether he can go back to his home address.
'He fully accepts he was the author of his own misfortune. Nothing like this is going to happen again. He appreciates what he has done and puts himself at the mercy of the court.'
He asked for a community service order to be considered but the bench was told that custody could be imposed for anyone who is convicted of using extreme language that causes substantial distress or fear to another.
The bench asked for a pre-sentence report from a probation officer and said it would keep all options open ahead of sentencing, which is set to take place from 2pm today.
The jail term was imposed just hours after the same magistrates fined a man £100 and ordered him to pay £100 compensation after he racially insulting a black woman.
The woman had been driving her car in Chorley when she heard the defendant directly shout at her: 'you black f****** c****'. When she stopped and confronted him he screwed up a piece of paper and threw it at her face.
WTF???
Seriously, I do not get this. A stupid, immature, drunk teenage who thought he was being clever and funny ends up behind bars and yet someone who makes a very direct and offensive insult to an actual person gets a £100 fine? Bonkers!
CarZee said:
Where is the certainty that he would have been remanded pending trial, given the sentencing guidelines for the offence?
Hindsight is a wonderful thing, but you only need to look at the sentence that was imposed to see that they were never going to bail him.Anyway, the bail decision is determined by the risk of reoffending, absconding, interfering with witnesses or the risk to the safety of the defendant himself.
The likely outcome of the case (and hence the sentencing guideline) is a secondary consideration to the grant of bail.
Don't get me wrong, I'm not disagreeing with much, if anything, of what you say. All I am doing is putting the lawyer's approach into context.
If bail hadn't been an issue, then stuffing in a plea of not guilty and putting the prosecution to proof would have been a sensible path to follow.
As things turned out, a guilty plea probably resulted in a smaller bowl of porridge for the defendant than he would otherwise have received.
It may well be that the mob baying for his blood has had a significant effect on the likely remand status of this defendant. Maybe it even had a bearing on the sentence that was imposed.
If it did, then it stinks.
And whilst I would not wish to risk being branded a gushing fool, I certainly agree with your sentiments about that aspect of this sorry case.
Gassing Station | News, Politics & Economics | Top of Page | What's New | My Stuff