Spring Equinox, 2021
Some of those defending clause 59 of the Police, Crime, Sentencing, Courts and Anything Else the Government Can Get Away With Bill point out that one purpose of the provision is to set out in statute the old common law offence of public nuisance.
The view is that the enactment is merely an exercise in modernisation and simplification – that there is nothing for us to worry our heads about.
And as this blog has already explained, part of the origin of the proposal is a Law Commission report from 2015.
But.
There is a law more powerful than any statute or common law right, more powerful even than any great charter.
And that is the law of unintended consequences.
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Here is a story.
There was once an obscure provision in the Post Office (Amendment Act) 1935 that, in turn, amended the Post Office Act 1908:
And for seventy years the offence was hardly noticed, though it was reenacted from time to time as telecommunications legislation was, ahem, modernised and simplified.
Then in 2003 it was reenacted yet again, but in terms that (without any proper consideration) ended up covering the entire internet:
But it was still not really noticed.
Until one day some bright spark at the crown prosecution service realised the provision’s broad terms were a prosecutorial gift in the age of social media.
This resulted in the once-famous TwitterJokeTrial case and its various appeals, which ended with a hearing before the lord chief justice.
In allowing the appeal against conviction, the lord chief justice said:
In other words: the intention of the 2003 reenactment had not been to widen the scope of the offence in respect of fundamental freedoms.
(Declaration of interest: I was the appeal solicitor before the high court in that case.)
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Coming back to clause 59, it may well be that the intended effect of clause 59 is to merely restate the existing law.
Some are convinced by this view:
This is particularly so when the Bill is explicitly restating the common law. I would expect the Courts to apply the old caselaw to the new, statutory offence.
— Yet Another Tweeting Barrister (@TweetingYet) March 20, 2021
But.
What we will have, once enacted, will be an offence – that is, an arrestable and chargeable offence – which, on the face of it is in extraordinary broad terms, using such everyday language as ‘annoyance’.
It may be that the higher courts will, as any appeals come in, apply the technical meaning in property law of ‘annoyance’.
The law in practice is not that (only) of the judgments of the high court and above: it is what police officers and crown prosecution service case workers believe the law to be and see the law as it is set out.
It is also can be what zealous complainants to the police say it to be.
And none of these people will – understandable and perhaps rightly – be well versed in the case law of ‘annoyance’ in respect of the old law of public nuisance.
They will just see an arresting and charging power – and a power to set conditions.
So it should not be left to the courts ‘to apply the old caselaw’.
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Criminal offences – and their limits – need to be clear and precise to everyone involved: citizen, complainant, arresting officer, crown prosecution service case worker, busy junior legal aid solicitor giving advice on plea – as well as to erudite barristers and even more erudite judges.
And so: even taking the point about this being a mere modernisation and simplification at its highest, clause 59 currently contains worryingly wide drafting.
Most people reading clause 59 by itself will believe there is a criminal offence – with a sentence of up to ten years – for causing mere annoyance.
Even if that it not the government’s intention, that is how the current provision can be read.
And because of this, people may suffer the life-changing events of being arrested and being charged – and may even plead guilty.
Unless, of course, that is the government’s real intention.
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Every time I hear some overly broad legislative net defended with the line that “of course it will be applied judiciously” I remember the 82-year-old Walter Wolfgang, detained under section 44 of the Terriorism Act for shouting “Nonsense!” at the (Labour) Foreign Secretary, who was giving a speech at the Party conference. From the Act it seems the police judged this requirement to have been met:
“An authorisation under subsection (1) or (2) may be given only if the person giving it considers it expedient for the prevention of acts of terrorism.”
Expedient it certainly was, but what could the “act of terrorism” have been? Of the definitions in the first section of the act the only one remotely applicable is “[action] designed seriously to interfere with or seriously to disrupt an electronic system.” And Jack Straw was using an electronic microphone to give his speech – jackpot!?
It was understood to be abusive and absurd at the time, but happened just the same. That the Labour Party quite fullsomely apologised the next day is commendable, but we should note the kneejerk “security” reaction on the spot: reach for the biggest stick to hand and swing it indiscriminately. So will it surely prove with this “Police, Crime, Sentencing and Courts Bill”.
Perhaps I’m wrong, but my perspective on the Twitter Joke trial was that the issue was not some much the drafting of the law, but a combination of the police and prosecuting authorities desperately seeking to justify a ridiculous over-reaction to what was obviously a joke, combined with what I would say was a perverse reading of the law by two different courts. That was before Paul Chambers was found not guilty at the High Court with the aid of his excellent defence team.
I cannot think that any jury would have ever found Paul Chambers guilty in the first place as they would have shown far more common sense than the original judges. From the average layman’s point of view, it was pretty well impossible to see how Paul Chamber’s throw away line could possibly have been interpreted as being menacing.
I seem to recall that a judge invented the idea of a particular nervous pensioner being alarmed (in theory) by the tweet. To be honest, anybody that sensitive really shouldn’t be on Twitter in the first place. In any event, it would appear that the man on the Clapham omnibus was to be substituted with the nervous nonogenarian in an aeroplane seat.
Also, this episode was not Keir Starmer’s finest moment. Rather than acknowledge the CPS were pursuing a case with no conceivable public interest he chose to pursue this to the bitter end over-ruling his subordinates who wanted to drop the case.
So, in this case, I don’t think it was how the law was written that was the problem, but very poor judgement by the police, CPS and the lower courts.
“I cannot think that any jury would have ever found Paul Chambers guilty in the first place as they would have shown far more common sense than the original judges. From the average layman’s point of view, it was pretty well impossible to see how Paul Chamber’s throw away line could possibly have been interpreted as being menacing.”
I disagree. There are a lot of people I know (perhaps even a majority of people) who take a “can’t be too careful” approach to anything conceivably terrorism related.
The common sense view of the man on the street would likely say that everyone knows you’re not allowed to joke about bombs and airports and would probably convict on that basis (especially with any guidance given by the judges who misdirected themselves in this case).
“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!!”
There may have been public interest in hearing the case thoroughly AND it may have been proper for D to have been acquitted.
Those reasons include the danger flowing from the raising of the social threshold for the acceptability of what some people without your sense of humour may sincerely understand to be physical threats; that danger being: psychological harm to individuals who’d sincerely thought they were being threatened, and physical harm to those who experience retaliation whether lawfully or not.
Emphasizing the gravity of the statement is a legitimate use of the legal process and I’m with Keir.
You are spot on here. It’s no good to say that in the few cases that make it to court and then through various appeals will eventually lead to vindication of the current common law position. As with the Twitter joke trial the consequence of the police and CPS misapplying the law still had a devastating effect on the innocent man sending a tweet and no effect on the police officers or CPS staff members who curtailed his rights.
The law in this case is being used as a signal to the police that they can much more aggressively restrict the right to protest. I imagine that 99.99% of people arrested under the new provisions will not be charged, but the new law gives another excuse for the police to act and thereby end effective protest.
We already see this with videos showing police demanding people cover up t-shirts under the public order act. That no arrest, let alone conviction, occurred doesn’t mean that the right to protest wasn’t curtailed.
What is missing is real consequences for misapplication of the law by the police or CPS, without this the abuse of these types of law by the state will always occur.
The police intervening where someone “displays any writing, sign or other visible representation which is threatening or abusive, within the hearing or sight of a person, likely to be caused harassment, alarm or distress thereby” is hardly new. For example, http://news.bbc.co.uk/1/hi/magazine/6944008.stm
The difficult question is whether a slogan on T shirt is “threatening or abusive” and “likely [to cause] harassment, alarm or distress”.
Many would support the police having the ability to intervene when necessary, and the flexibility to decide whether or not to intervene, perhaps with some words of advice and perhaps with something stronger. For good or for ill, that means discretion in the hands of the police.
So, do we trust the police to exercise their discretion wisely? Or do we fear that the police will exceed their powers, or exercise their discretion in ways that are discriminatory and oppressive? And what happens if they do? There seems to be little consequence even when the police unlawfully kill someone by violently assaulting them on the streets, like Ian Tomlinson.
“Shoplifters will be prosecuted” is clearly threatening and presumably intended to cause alarm in any person intending to shoplift.
David
“Unless, of course, that is the government’s real intention.”
This for me is the telling line.
That we (because I agree with you) should even be ‘in that place’ where we suspect this might even be a possible/probable, is indicative of the nature of this government.
All administrations push boundaries and wish to perpetuate their hold on power. But I’m 62, and I’ve never felt so suspicious or intimidated by the intentions & accumulative actions of my own government.
Unintended consequences indeed. I wonder how this will affect the Traveller community and how this legislation will fare when it meets the tangle that passes for planning law. At present we have an uncomfortable set of compromises that leads to a spirit of endurance and de facto toleration and a spirit of ‘do nothing’. All backed by planners faced with political hypocrisy and no money.
So far all sides seem to play the game by ‘grandmother’s footsteps’, break a law a little, see nothing done and break it a bit more. In practice this sort of works. But chuck in ‘strong’ legislation and we might see trouble no one needs. Be careful what you wish for.
Most people reading clause 59 by itself will believe there is a criminal offence – with a sentence of up to ten years – for causing mere annoyance.
This is exactly what I hear from acquaintances who are in some part likely to attend protests and the like.
Surely this is at least one of the government’s real intentions – to deter.
Thanks for the blog.
I chanced upon a clip of Ian Hislop appearing on BBC Question Time recently. He was comparing the merits of paying a very large sum of money for the redecoration of the 10 Downing Street press room with those of giving nurses a very small pay rise. He gave the impression of being annoyed, indeed seriously annoyed. The virtual audience, appearing on a bank of Zoom screens, almost unanimously clapped into their webcams, showing that they too were seriously annoyed.
Is there any scope for Ian Hislop to bring a prosecution against some or all of the Prime Minister, the Chancellor of the Exchequer or the Minister of Health?
I don’t understand quite who is the arbitrator of this.
Quite often the Government will cause me “inconvenience annoyance and needless anxiety”, am I to pick up the phone and call the police every time I watch prime minister’s questions?
From my (non legal) viewpoint the conditions would have been met. But I’m sure that whoever took my call would think that I was the one causing needless annoyance.
Given Johnson’s frequent ill-advised and unfortunately worded attempts at “humour”, I look forward to the day when he’s hoist with his own petard.