Legal Aid Reforms

On Monday the Ministry of Justice published a green paper outlining proposals for reforming legal aid in England and Wales.

You can get the official hard-copy version from TSO here, and the PDF here. Or you can see an online annotataed version here.

I haven’t read it yet (though I intend to), but the response so far is not positive. To give you a flavour:

The Law Society:

The government’s proposals mean that only the poorest of the poor will continue to be able to obtain civil legal aid and even for them legal aid would cease to be available for some vital matters. But neither we nor the government can know how the Jackson proposals will work in reality and whether the squeezed middle will have access to justice.

Nicholas Green QC, Chairman of the Bar Council:

The new thresholds for legal aid will mean that many who must be described as poor will be denied legal assistance when they come into contact with the courts at crisis points in their lives about decisions going to the heart of their personal lives and those of their families. Legal aid will no longer be available for certain categories of cases involving education, immigration, employment, debt, and housing, all of which can involve very vulnerable people.

Charon QC

It costs money to fund even the most modest solicitor’s office, fund  solicitor’s time or barrister’s time.   Those who rely on legal aid tend not to be consulting the City and Commercial law firms – which, however, contribute in their way to our society by providing experienced lawyers who do many thousands of hours of free legal work for those who need help. (I would not wish twitter trolls and  head bangers to think I had missed the point that lawyers are ‘fat cats’)  Those who rely on legal aid consult lawyers who deal with very real, sometimes very serious and oppressive, legal issues which can seriously affect mental and physical health and even destroy lives.

Guardian Law:

It’s important not to be unrealistic about legal aid – it was always going to have to take its share of the hit across the Ministry of Justice, and wider government spending cuts. But the government actually has the nerve to say that these changes are better for society.

Briefing journalists on the cuts, legal aid minister Jonathan Djanogly made repeated reference to the “culture of litigation” and the fact that “people are too often willing to hand over personal problems to the state”. In so doing he suggested that these changes are also a measure of social conditioning, to break that culture, even if the means is excluding the poorest people in society from access to justice.

It’s that last quote that worries me. There is no evidence to support the claim that there is a “culture of litigation”. For most cases, the number of claims has actually gone down. This looks like it may be using legal aid cuts to mask policy.

In particular, I am concerned at the idea of replacing funding for NHS litigation with private insurance. Clinical negligence can affect anyone, and it is absolutely vital that the courts can step in and force the NHS to be held to account for it. The idea that this can be replaced with private insurance seems almost laughable. First, there is little to suggest that most people would take it up until it was too late. Second, it creates a two-tier healthcare system by the back door, where only those that can afford insurance have any practical protection against shoddy treatment. Given that this is a costly area of litigation for the government, it looks like a useful way of masking a policy decision.

I will come back to this more when I have read the paper fully.

Menacing Times Indeed

A disappointing result this week as Paul Chambers lost his appeal over what has been dubbed the “Twitter Joke Trial”.

Earlier this year (?) Paul had booked a flight to Belfast to meet a woman he had been chatting to on Twitter. They met and romance appears to have flourished between them. Between that time though, a heavy bout of snow looked like it might have caused these plans to go awry, closing the airport Paul was due to fly out from. In a fit of anger, he tweeted the following:

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!!

Not particularly funny, but on any sensible reading this wasn’t meant to be taken seriously. Indeed there is scant evidence that Mr Chambers thought any more of this tweet after he sent it. Nevertheless, he found himself arrested, his computer and phone impounded and subject to a prosecution. He apologised immediately and explained that it was a joke. To this day the police still have his computer and phone, and despite having no legal grounds for keeping them, have failed to return them.

At first, the CPS considered charging him for making a bomb hoax under s.51 of the Criminal Law Act 1977. Very quickly they realised there wasn’t going to be enough evidence. An alternative charge was brought under s.127 of the Communications Act 2003. Section 127 reads as follows:

127 Improper use of public electronic communications network

(1) A person is guilty of an offence if he—

(a) 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; or

(b) causes any such message or matter to be so sent.

(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

(a) sends by means of a public electronic communications network, a message that he knows to be false,

(b) causes such a message to be sent; or

(c) persistently makes use of a public electronic communications network.

(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

The relevant part for this case was s.127(1)(a), in particular sending a message of a “menacing character”. On the basis of the initial advice given, Paul Chambers pleaded guilty at Doncaster Magistrates Court. He was subsequently, following an article by Jack of Kent/David Allen Green, allowed to vacate his plea to one of Not Guilty, and was tried earlier this year before a district judge. He was convicted on the grounds that the tweet “was of a menacing nature in the context of the times in which we live”. The prosecution and conviction has cost Paul two jobs, and an ever-growing bill in fines and prosecution legal costs. Fortunately, these will be covered by the twitter joke trial appeal fund, but that’s not much consolation.

This week the case came to the Crown Court on appeal. After rejecting a submission of no case to answer, Paul Chambers was again convicted under s.127. Cue much justified outrage.

Unfortunately, it has not been possible to obtain a copy of the judgment. I have heard that it may not even get published. Without that, it is not possible to comment fully on the basis of the decision. Any remarks are therefore only provisional observations. Section 127 also isn’t an area of law with which I am familiar, so, again, if anyone more senior to me (i.e. anyone else with a legal qualification) says something different on the law, take their word over mine.

Before continuing though, a word about the judge. There is some hyperbole going round about the judges in this case being, variously, hapless, incompetent or the worst judge in English legal history. I don’t think this is helpful. Judges get things wrong. We all get things wrong. That’s why we have trials, juries and appeals. Just because you think someone is wrong doesn’t transform them into the worst judge ever. They may even be right.

In any event we have two possibilities. This is either a duff law or a duff judgment. There are some persuasive arguments to suggest it may be the former. If that is the case, then there was no option but to convict, and Paul Chambers is the victim of an injustice, rather than a miscarriage of justice.

Nevertheless, Thursday’s judgment (based on what’s been reported) appears troubling. There are two reasons for this.

The first is the idea that the tweet was menacing because it was published in the context of “the times in which we live”. This phrase was used by both judges and it appears to be the crux of their decisions. Presumably, if the context of our times is the basis, then the menace is time-sensitive. If Paul Chambers had made the remark outside this time, it wouldn’t be menacing.

This is flawed logic. I have a certain amount of knowledge of the contexts here, having studied how al-Qaeda use the Internet as part of my degree. Although there is a genuine and substantial threat from Islamist terrorism, in particular aimed at airports, it is by no means a context peculiar to the times in which we live. Terrorism is a constant of human history. It may vary in form occasionally, but it is otherwise constant. Before al-Qaeda we had the IRA. Before that we had the Anarchists. All three at various times tried to blow up chunks of the UK. There is nothing particularly special about our time, other than how they organise and what they attack. When we haven’t had an obvious threat, we’ve had far more serious threats from mass-mobilised industrialised states. Even now, the threat posed by al-Qaeda has reduced. Though determined, it has gone from a well-financed and manned organisation with a rogue state sponsor to a much weaker organisation. Without wishing to downplay the threat, our times, when put into the wider historical context, are not so sufficiently scary that it should render a bad taste joke into a “menace”.

And at any rate, al-Qaeda operatives don’t use their real names and explicitly say what they are targeting and when in an open communications medium. The 9/11 Commission Report was specific on this:

They discussed targets in coded language, pretending to be students discussing various fields of study: “architecture” referred to the World Trade Center, “arts” the Pentagon, “law” the Capitol, and “politics” the White House.

In other words, Paul’s message couldn’t have looked less like a terrorist plot if it tried to. Everyone in the decision-making chain knew this, yet the CPS and the law appear to want to shear the message from its obvious and intended context, and place it in one that simply does not exist.

The other problem is the suggestion that the tweet would be seen as menacing by the hypothetical elderly couple who google the airport and come across it (though this may be a misreporting). This has the rather insulting attitude that the elderly cannot distinguish between levity and seriousness. I like to think that most elderly people would have the common sense to work out that this tweet was nothing more than a poor joke. It also appears to concede that the point is a laboured one. The law used to view these sort of things through the eyes of a “reasonable person of ordinary firmness”. Thus if you told someone that “if it were not assize time [when the courts came to town], I would not take such language from you” while holding your sword, you were not guilty of assault. This was because even though the victim feared an attack, if they had been reasonable they would have worked out that what the defendant was saying was that he wasn’t going to attack him: it was assize time (Tuberville v Savage). This logic, admittedly for a different offence, appears to have gone out the window. That a potentially non-existent thin-skinned hypothetical has to be invented to justify this decision is concerning.

At any rate, the law shouldn’t be criminalising this sort of behaviour except as a last resort. Yes, it is true that airport security gets very jumpy about bomb jokes. So they should. But they don’t make a habit of criminalising the people who do because of an error of judgment.

Paul Chambers nonetheless has been found guilty by another court, and it is entirely possible that any appeal may come to the same conclusion. His options are, roughly, as follows. He can appeal on the law and facts, costing more money and with no guarantee that the case will be overturned given the breadth of the law on this point. He can also consider whether there is a potential challenge under Article 10 of the European Convention of Human Rights, arguing that the law has to be read down to comply with his right to freedom of expression. I have no idea whether that would succeed given it is in relation to a bomb joke. The other option is to accept that the law is as the judiciary say it is, and campaign for its change. While this may be somewhat easier and cheaper, it doesn’t necessarily do Paul any favours as his conviction would remain outstanding were the law repealed. That being said, if the right level of publicity is generated over it, this may not be such a problem. As I am not involved in that decision, I have no intention to guess what it might be

Nonetheless, the situation cannot remain as it is.  Criminalising jokes is no laughing matter.