The Survey, The Ballot and The Misunderstanding

elections_in_occupied_country_cartoon[1]Much has been written over the last few weeks about The Survey, The Ballot and The Misunderstanding, not to mention previous debates about The Deal and quite rightly, different views have been expressed, particularly across the Social Media.

Perhaps some will be greatly relieved that I am not going to repeat in any great depth what has been said, although I particularly commend the recent posts by the respected and intellectually independent journalist @JackofKent

I must begin by putting a few statistical records straight.

When Michael Gove attempted to undermine the turnout of The Ballot and therefore the ‘YES’ vote I expected the CBA to put him right. When the membership voted to accept The Deal the turnout was 1878 and Nigel Lithman, the then Chair of the CBA understandably used it as a decisive mandate to accept The Deal. The Survey which the CBA described in a Tweet on the 21st May 2015 as representing a ‘strong turnout’ garnered 1385 voters. So when we learn that The Ballot attracted 1777 participants, I think it can be accepted that that too fits neatly into the ‘strong turnout’ category, and deserves to be treated with respect and not lightly interfered with.

cba tweet

Yet when Gove sought to immediately undermine the will of the CBA membership by criticising the turnout, we heard little defence of its legitimacy from its authors. Perhaps even more disappointing is that despite this strong turnout there are still concerns, presently coalescing around a CBA Executive meeting on Monday, that the will of the majority of CBA members who voted is at risk of being watered down if not cast aside.

Why is this view gaining traction?

The fiasco around The Misunderstanding is but a part of the cynicism in some quarters, an important part, but just a component.

A few facts about The Misunderstanding need to be made clear. Despite a number of posts and Tweets pontificating whether the CBA were invited to an important meeting with Gove last week, whether they were ‘not on an attendance list’ which rather implies they were invited but did not go, or whether, as Michael Turner suggests, the no show was all the fault of the solicitors, can be and should be debated elsewhere. To my mind, the important questions, which the CBA have steadfastly refused to answer were, given that Mark Fenhalls, the Vice Chair clearly knew that a CBA nominee was desired at the meeting, who did he nominate? If he did not nominate anyone, why not? Were the Chair, the Vice Chair and the Vice Chair elect so indisposed that none of them could go?

This was potentially an important meeting, which by all accounts saw Gove engaged with attendees. The CBA have been arguing for discussion and contact with the Lord Chancellor for weeks, surely here was another palpable opportunity to continue to develop that relationship. Is it so unreasonable to ask why no one turned up?

This background, the result of which was that the Criminal Bar were not represented at a meeting with the Minister, alongside solicitor colleagues at which joint Direct Action was inevitably discussed, leads me to the concerning conclusion that the CBA want out of any direct and unified action mandated by The Ballot, let alone The Survey.

This takes me to the Monday Meeting of the CBA Executive.

The new protocol presented to Gove by the solicitors last week is being fixed upon by some within the CBA to undermine the ‘YES’ vote. Posts on the Social Media have referred to it as ‘a game changer’. But we should remind ourselves of the terms of The Ballot. The question was:

‘Solicitors face an 8.75% cut to litigators fees. In support of solicitors, do you wish to go back to ‘no returns’ and also refuse all new work with a representation order dated from 1st July 2015 until such time as solicitors decide not to take further action in respect of that cut? Yes/No’

In carefully calibrating that question the CBA ballot paper stated that it ‘is intended to give the executive a suitable mandate for its next steps. In drafting the ballot question we have sought to synthesise the spirit of the different resolutions that have been proposed and supported at recent meetings’.

This is important when the CBA Executive seek to apply their minds to the matter on Monday. The mandate provided by The Ballot echoing in many respects the will of The Survey which the CBA stated on the 21st May ‘urged the CBA to take action to press the Government’, was not confined or restricted to any opt out which may be executively imposed at a later date and it certainly did not provide the CBA Leadership with any mandate to shift their support should any new developments take place. Both questions in The Survey and particularly The Ballot were clear and unequivocal and it would be unfortunate to say the least if the CBA Executive attempted to undermine the unity expressed in the questions and seek to interpret the will of the members who have now voted twice on the issue.

It would equally be just as worrying if any attempt were made at next Monday’s meeting to extend the start date for Bar involvement in Direct Action a further 14 days, say, from the present starting pistol of the 27th July. Many would see that as a predictable, long grass tactic. Anything short of respecting the will of the membership, as expressed in The Ballot would further damage unity and trust between both sides of the legal profession, something that, be in no doubt we will need in the months ahead…… unless you believe in Gove’s flattery, a tactic he used almost word for word with the Teachers back in 2012.

As Tony Cross, the Chair of the CBA said in his Monday Message of 13th May 2015, anticipating the result of The Ballot “…this vote is a truly seminal moment for the Bar”. It was and we should jealously defend its outcome from any attempt to undermine it.

We the Jury: The Case for Trial by Jury

jury_box[1]Over the last week, the debate about the place of the jury in the criminal justice system has occupied the minds of a great number of people.
The approach of those who seek to undermine, what has hitherto been a central, if not statistically limited strata of our trial process, has been to emphasise that the ability of randomly chosen citizens to decide issues of fact, apply the law as directed by the judge and come to a proper verdict has been exposed as deficient by a single jury in the Vicky Price trial.
Of course, we are immediately confronted here with the ‘knee jerk’ brigade who seem to be mounting an argument, the effect of which, is to weaken public confidence in one of the few remaining democratic and publically accessible parts of our legal system , upon a criticism of one jury. But we should never forget the wise words of Tony Hancock in his interpretation of ‘Twelve Angry Men’: “Think of your roots, think of your history. Magna Carta, what did she die for?” (and yes I know all the counter arguments re Magna Carta, but it is still funny).
I do not propose to examine the events surrounding the Price jury, not least because there is an ongoing trial. But we need to get some perspective pretty fast upon what could be a very damaging assault by some upon a crucial way in which the general public can engage and be part of our, their, trial process. In fact it is the only way.
Every year, about 480,000 people across the country are called and sit as jurors. The very fact that the former jurors on the Price trial received so much publicity is testament to the vast majority of jury members who go about their business responsibly, consciensiously and diligently. The fact that the Price jury made news was because it was news. Furthermore, and in the interests of clarity, before those who would undermine this process get their way, we do not even know, nor do I seek to know, whether the entire 12 of the Price jury subscribed to those notes ( some of which were perfectly sensible like the definition of ‘reasonable doubt’ which has troubled lawyers, both practicing and academic for many years and described by Penny Derbyshire in her Paper, ‘What can we learn from published jury research? Findings for the Criminal Courts Review 2001 [2001] Crim L.R 970 as a “direction.. almost universally seen as problematic”).
The overwhelming arguments in favour of our jury system have been made in a number of places. I discussed them last week on Newsnight, as the debate reached its height and there is a wealth of discussion on the Social Networks developing and advancing the case for trial by jury.
One of the points I raised in that Newsnight piece was my concern about the alternatives. Primarily that alternative is a judge, with all the cynicism and baggage that comes with it. Some have suggested aptitude tests for the jury which in my view smacks of pre-selection and goes against every essence of the random nature of establishing a jury. In the vast majority of cases most members of the public are perfectly able to deal with the assessment of fact required for their duty service and to suggest in a narrow and defined number of trials that there should be aptitude or intelligence tests begs the question as to the criteria for introducing these tests, for instance is it any case with a financial element? Or just some that the lawyers consider to difficult for the general public? Even in writing this it feels some what arrogant to be even suggesting it.
Those who criticise the jury raise the fundamental argument that the jury may not understand their case, either on a factual basis and equally from a legal perspective. Putting to one side the taint of arrogance within this approach, bordering, as some have put it on snobbery, it follows that their concerns, they perceive, will be assuaged by judge only trials. Someone recently Tweeted to me “I would rather be tried by a judge than a jury” Would they?
Lets take the much debated Jubilee Line Trial, Rayment and others as an example of a previous occasion when the jury doubters held court. This trial collapsed in 2005 after 21 months when the prosecution conceded that the fraud trial was no longer viable. A central allegation against the jury was their lack of competence to try, in this case, long and complex trials.
It follows, of course with this argument, that this inability to fulfill their function is heightened in a short trial such as that of Price.
But upon close analysis of all the reseach, statistics and records relating to the work undertaken by the jury, this inability, either in long or short trials is just not made out.
In 1998 researchers conducted an simulation study of jurors’ comprehension of some of the evidence in the Maxwell fraud trial [1998] Crim L.R 763.
They concluded that  “cognitive unfitness” had not been made out as a reason to abolish trial by jury for complex fraud cases and specifically recognised  that the content of a case, properly explained by the lawyers and the judge, was not a problem for the jury.
The Auld Review of the Criminal Courts of England and Wales (2001) came to the view that if it could be established that the fact-finding role of a Tribunal could be better taken by an entity other than a jury then the justification for trial by jury would fall away. Yet in his Paper, ‘ Modes of trial: Shifting the balance towards the professional judge’ [2002] Crm L.R 249, John Jackson argues that, regardless of this, juries perform a valuable function in “reinforcing adversarial protections for the accused and this raises issues which go beyond the question of their competence as a fact-finding tribunal”.
Much of this approach takes into account the indisputable role, occasionally played by a jury in bringing in an acquittal, despite the liklihood of technical, legal guilt. Some would refer to it as justice, rather than a clinical finding based upon the law. It is something, quite properly, that a judge, with all his professional training and codes simply could not and should not do.
Instead of arguing from a perspective that the jury no longer fit into our sophisticated appreciation of the criminal justice system, we should be looking at this issue from an entirely different view. A democratic criminal trial process needs the participation of the people it serves. If there are problems in delivering this then it is the legal system which needs to adjust to maintain the contribution of the citizen it is servant to. Any required measures to assist the participation of the jury, such as cogent and clear presentation of the evidence and the arguments are a matter for the legal profession and it is to us, if criticism there be that it should be directed.
But we must remember, in fact, something near 98% of all criminal cases are decided by Magistrates. The arguments of the last few days relate to some 2% of our criminal trials. We should think very carefully before we throw away that rare but vital right.
As Humphreys J wrote in a 1956 Edition of the Criminal Law Review [1956] Crim L.R 434,
“I cannot bring myself to believe that there are any persons other than the inmates of a lunatic asylum who would vote in favour of the abolition of trial by jury in serious criminal cases”.
Well said that man.

Chair of the @thebarcouncil Eng & Wales tells Nolan show there should be anonymity for those people ACCUSED of sexual crimes until conviction.

The Chair of the Bar Council, Maura McGowen QC has made the controversial suggestion that defendants accused of “sexual crimes” should remain anonymous until after conviction.

It seems that this was laid out by the Chair on the Stephen Nolan Show on Radio 5 last Saturday and has been confirmed by the Bar Council, by way of Re Tweeting.

Although I understand the sentiment from where this position comes from and readily recognise the trauma caused to people who have serious unproven allegations thrown at them, sexual or otherwise, I simply cannot see how this can work.

There are a number of essential distinctions between the position of a defendant and that of a witness, the latter of which, in certain circumstances is entitled to anonymity.

Essentially, the criminal justice system in this country, despite political efforts to the contrary, is based upon the Open Justice principle. Only in exceptional circumstances is that resoled from. Adopting that central tenet, if a person is charged by the State with a criminal offence, the proceedings should be conducted publicly, as Re Times Newspapers Ltd [2009] 1 WLR 1015, put it “with all the consequences that that entails. It is only where the proper administration of justice would be affected that any derogation from this principle can be permitted”.

The administration of justice is clearly in peril, as the courts have recognised, if a witness cannot give reliable evidence unless they are protected by a variety of special measures, including, ultimately anonymity, but this rigid principle is unlikely to extend to defendants.

As such, the Chair of the Bar Council seems to be proposing something which is entirely out of step with the trend of current legal thinking. Nothing wrong with that, I accept, providing that it is logical and practical. It is not.

I find the proposition difficult, if only in terms of its logic. Why “sexual crimes”? What, in relation to an accused defendant, distinguishes them from, say, the heinous allegation of child murder or even a less serious offence, which upon conviction could ruin a person’s career. For instance, an allegation involving dishonesty or breach of trust could be devastating if you had made your name upon adhering to such principles. If we are to have anonymity for “sexual crimes”, (and I pause to ask, if this means all crimes with even the slightest sexual content?), why draw the line there? If Ms McGowen is going to be consistent, then it should extend beyond those closed categories and be universal. If this were to be so, all defendants would be entitled to anonymity.

In any event, sometimes it is vital for the investigating authorities to make public the name of accused people. By doing so, significant evidence can be gathered and other, potential complainants identified and particularised in a single trial to enable the jury to have a clear representation of the extent and similarity of the allegations.

For all these reasons and accepting the understandable impulse to raise the concerns of an accused, the suggestion on defendant anonymity is misconceived.

Sometimes we should be spoil sports: The need for public protest.

Earlier this week, Trenton Oldfield was convicted of ‘Causing a Public Nuisance’ by a jury at the Isleworth Crown Court. Previous instances of this rarely prosecuted offence include impregnating the air with “noisome and offensive stinks and smells” causing “a nuisance to all the King’s liege subjects living in Twickenham” But Oldfield was the man who had the temerity to disrupt the Oxford and Cambridge Boat Race last April, by choosing to take a swim, just as both boats were getting into their stride.
The prosecutor explained to the court that his actions had “spoiled the race for hundreds of thousands of spectators” and for this, the judge has adjourned sentence,commenting that she is not ruling out a prison sentence.
Of course, Mr Oldfield is not the first person to attempt to make a point by spoiling the fun of sports enthusiasts. Famously protestors dug up the crease at the 1975 Third Test between England and Australia in an attempt to bring to the publics attention that an innocent man had beensent to prison for robbery the year before. Only last year, that man, George Davis was exonerated by the Court of Appeal and his conviction held to be unsafe. One of the men who vandalised the cricket field, Peter Chappell,  was sent to gaol for his part in trying to raise public awareness in what has since been recognised as a gross miscarriage of justice. No doubt the Third Test, back in that rainy Summer of 1975 was “spoiled for hundreds of thousands of spectators”, but, nearly 40 years later, their sporting pleasure was nothing compared to the gaoling of an innocent man.
Similarly the thrill of horseracing was spoiled for many spectators when a suffragette threw herself under the King’s Horse and was trampled to death, but surely the spoiling of their fun was nothing compared to the denegration of women in that pre-vote era. Her tragic death, as she ran into the path of the galloping horse was borne of anger and frustration in an age since recognised as discriminatory and unfair.
Interestingly, one of the reasons why Oldfield swam out amongst the boats was that he objected to the government and Olympic organisers call for us to report anyone we suspected of planning a public protest during the Olympic period For this he was charged with ‘Causing a Public Nuisance’. The ingredients of the offence are that he behaved in such a way that an injury was suffered by the public and potentially carries a life sentence Of course, Mr Oldfield will not get life, but this rarely prosecuted offence may yet see him serving time.
In fact what Trenton Oldfield did during the last Boat Race was in the finest historic traditions of getting public attention at a big sporting event, for a cause which struggled to attract National interest, sympathy or appreciation. He has been treated in the same way as others before him, ridiculed and criminalised. The usual suggestions that a sporting venue is, in any event, no place for such behaviour has also, predictably reared its head and, again  predictably, venerated sports people have castegated the behaviour of the protestor.
We live in a Society which only tolerates public protest so long as it is clean, relatively quiet and does not inconvenience anyone. The moment it threatens or spoils our fun it becomes a police matter.
Ultimately, history treats the protestor far more equitably than the present.


There are few things more sensitive than sexual offences and how we
deal with sex offenders.

In the calendar of criminal offences, there can be nothing more
appalling than the sexual violation of any individual and the whole
issue, quite understandably triggers painful and volatile debate. Most
importantly, the victims of sexual offences are caused anxiety and
distress whenever the subject of sex offenders becomes a topic of
public debate and unless the issue is discussed accurately and
responsibly, there is the real risk that victims will be deterred from
reporting crimes to the police.

So it is that Ministers, Commentators and interest groups, including
the NSPCC, waded into this highly sensitive
area when the ruling in R (on the application of F by his litigation
friend F) and Thompson (FC) (Respondents) v Secretary of State for the
Home Department (Appellant) [2009] EWCA  Civ 792
came into force a few days ago.

It does none of these groups any credit to analyse for a moment the
ill-judged, knee-jerk reactions which flooded onto the media. The
misinformation and at times downright hysteria coming from the mouths
of people who should know better was shocking. Furthermore, there can
be no excuse for it. I think that we can safely assume that Ministers
and Charities such as the NSPCC have legal advice and that the impact
of ‘F’ upon the way sex offenders are monitored in England and Wales,
was recognised as being marginal and certainly not worthy of the
hyperbole of the last few days.

Lets put a few myths right. Sex offenders still have to register as a
matter of compulsion. Sex offenders still remain on the list for life,
as they have always done and do not automatically come off it after 15
years. Sex offenders will have to convince a Police Force that they
are safe to come off the Register after 15 years of being on it in the
community and one can assume, having not been convicted of further

Listening to the rhetoric of Ministers and in particular Theresa May,
the Home Secretary over the last few days, it is not surprising that
vulnerable people, victims and those under threat, were shaken by what
they were hearing.

The problem is, that when it comes to sexual offending, politicians
have been brought up to take no chances… look what happened to Ken
Clarke for instance. Best deal with it in broad strokes so that there
can be absolutely no room for misunderstandings, or worse, the media
deliberately making it a crisis.

For a moment, for those who want a calm consideration of the
situation, let’s get to the facts.

By way of background to the legal foundations for the present
position, we need to go back to the Sex Offenders Act 1997  and in
particular, Section 1(3)
. This laid down that there would be an automatic statutory
notification upon conviction of the name, address and date of birth of
the offender within 14 days of the conviction. This was to be given to
the police and that they should further give notification of any
address at which they would be staying for 14 days or longer.

Then came the Criminal Justice and Courts Services Act 2000 which reduced
notification time to 3 days and introduced a requirement that if the
offender went overseas, they should give notification within 48 hours
of travel to include details of the carrier, points of arrival, where
they were staying, date of return and point of arrival.

Both pieces of legislation were repealed and substituted by the Sex
Offenders Act 2003  Section 82
Take a look at this provision. It strengthens the already stringent
regime of the previous legislation and quite properly restricts any
movement and activity of convicted sex offenders comprehensively. I
make this point and lay out the historical development of these three
protective statutes, because listening to Ministers over the last week
or so, you could be forgiven for thinking that it has all been swept
away. It has not.

Victims of sex offences and those who may be on the edge of reporting
sex offences should know that the law provides for extensive
restrictions upon those convicted. Ministers do irreparable damage to
the criminal justice system when they imply otherwise.

A close reading of ‘F’ also makes it clear that the Supreme Court were
bolstering this protective series of provisions. Lord Phillips
confirmed in terms that it is lawful to monitor for life sex offenders
and everything that their Lordships said, marked and reiterated the
heinous status of sexual offending in the eyes of the law.

The case was not about whether sex offenders should or could be
monitored for life, it was a case decided upon the very narrow issue
of whether 15 years after release, some could apply for a review, as
to whether they might be removed from the Register.

As a matter of law, and quite rightly in my view, the Supreme Court
decided that being put on the Register for life, without the chance of
review was disproportionate when taking into account the provisions of
Article 8 of the European Convention on Human Rights

Proportionality was considered with reference to the leading authority
of De Freitas v Permanent Secretary of Ministry of Agriculture,
Fisheries, Lands and Housing [1999] 1 AC 69 [at page 80] , in that the
requirement in question should be no more necessary than to accomplish
the objective.

The objective is to keep Society safe. There was considerable
consideration in the case of whether sex offenders can ever be safely
let back into the community without close monitoring and this debate
continues outside of the Supreme Court. Perhaps reassurance can be
gained from official statistics for 2008 which suggest that
reoffending rates for sex offenders at 26.8% is lower than domestic
burglary [59.9%], and Robbery [38.1%].

As such, the Supreme Court ruled that no chance of review was disproportionate.

That is the reality. Of course some will say that there should never
be an opportunity of review, they would probably be the same people
who argue with passion that ‘the keys should be thrown away’. But
whether we like it or not, the ultimate protection for Society is
rehabilitation and sometimes, just sometimes, the odd sex offender
might persuade a policeman that that is possible. That is the top and
bottom of it and it seems to me that this debate is more a product of
the political conference season than responsible public reassurance.

The Policing and Enforcement of the New Residential Squatting Law

On the 1st September 2012 Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into effect.

There is nothing in this title to give away that the new law which is quite literally going to hit the streets on this date represents not only a significant statement of political intent but also fundamentally weakens one of the most iconic ‘rights’ in the legal dictionary.

Section 144 of the Act lays down a new offence of squatting in a residential building. It has a number of elements:

A person who is in the residential building as a trespasser must have entered as such.

They must have known or ought to have known that they were trespassing, so, for instance, protecting from conviction someone who enters residential property as a result of bogus letting agents misrepresentations.

And the person is living in the building or intends to live there for any period of time, protecting those who gain access, say, to pick up mail.

The offence does not apply to a person who enters as a legitimate tenant and subsequently defaults with rent payments. In these circumstances, the landlord will be expected to pursue established eviction proceedings.. Upon conviction, following summary trial or plea, the sentence can be up to 6 months imprisonment and\or a £5,000 fine.

The provision was introduced to protect owners and lawful occupiers of any type of residential building and makes it more difficult for trespassers to assert they have rights in respect of residential buildings because their occupation of that building will be a criminal act. The real significance of this is that Section 6 of the Criminal Law Act 1977, which makes it an offence for a person without lawful authority to use, or threaten violence to secure entry to premises against the will of those inside, which may include someone who is a trespasser, will be curtailed. Put another way, in relation to residential properties, squatters’ rights are dead.

The Police will not now be deterred from a squatters’ rights notice on the door of a residential building. The Police will have a lawful authority under Section 17 of the Police and Criminal Evidence Act 1984  to enter that property and make an arrest.

On the face of it, there can be little complaint that the blight, as some see it, of residential property, which has been left unoccupied, being taken over by trespassers is being brought under control. I see that and I respect it.

But the consequences of this new legislation will be that, sometimes and I stress, sometimes, homeless, vulnerable people will be forced back onto the streets. This is a concern which is accepted and articulated by the Ministry of Justice in their notes which accompany the Act and cannot be dismissed as liberal heart bleeding.

We should expect the Police to enforce their new powers with tact and sensitivity.

This sort of legislation does highlight the debate about the way the Police deal with disadvantaged members of Society. It is right to emphasise, that apart from the rare political occupation, many of those who occupy deserted residential properties are themselves homeless, unemployed and generally poor.

There are a number of pieces of respected research upon Police behaviour which continues to highlight the prejudicial way  by which the Police deal with the socially deprived. Current debate, quite properly has concentrated upon the attitudes of the Police to racial or religious  groups, and to that of sexuality and the spotlight has been turned away from the way the Police treat the socially and economically deprived. This is somewhat concerning as the majority of society with whom the Police interact are from exactly those latter categories.

Bethan Loftus makes the point very clearly in her book ‘Police Culture in a Changing World’ [OUP] when she observes [at page 165], that “the economically excluded were the prime targets of police concern and practice. Officers saw themselves as locked in battle with what they termed ‘scrotes’ who would otherwise infest their respective areas.”

Section 144 is just the sort of legislation which might be utilized by a disparate group of interests, from public opinion driven politicians to a police force which continues to have the much less analysed prejudices of social status, or even class, very much in its DNA.

In many respects, and particularly on the surface, this section represents a sound and much needed development. There is no doubt, that it will reassure the property owner, who is entitled to such reassurance, but we should think a little further than loud cheers of welcome, and think to its enforcement.

With Section 144 comes responsibility and it raises some fundamental questions about how the Police relate to the vulnerable.

The Twitter Joke Trial: The Punch Line.


Later on this week the DPP is convening a workshop to consider how the CPS will approach decision making as to whether people should be prosecuted as a result of their use of the social media.

It is reassuring that one of those people attending this event is David Allen Green, my instructing solicitor in the so-called Twitter Joke Trial.  It is important that the DPP should listen very carefully to what he has to say because the events which unfolded and ultimately resulted in Paul Chambers being before the Lord Chief Justice should never happen again.

Much has already been written on this case. Of course, as long as the proceedings were live, given the fact that I was representing Paul Chambers, it was not appropriate for me to write anything of length about the matter, particularly as for the last few weeks, the most senior criminal judge in the country, along with two respected and experienced colleagues, were considering what has turned out to be a significant judgment as to the conduct expected by the criminal law upon those who engage on the social network, and particularly Twitter.

The Judgment in Paul Chambers v Director of Public Prosecutions [2012] EWHC 2157  is both clear and succinct and dealt with our arguments, so far as the court needed to, to come to a judgment in the case. It should be emphasized that any Appellate court does not need to deal with every argument raised by Counsel in the course of a hearing, only those matters which will be determinative of any decision that is required to form the basis of a judgment.

This is perhaps why, those expecting to see a full consideration of the Article 10, Freedom of Speech provisions in the European Convention on Human Rights, will be disappointed.

David Allen Green and I realised that the axis of the previous legal strategy, presented by Ben Emmerson QC was not going to succeed. Their argument was heavily weighted in favour of the Human Right, Freedom of Speech issue.

One of the decisions that any legal team needs to make when practically considering the best way to put a client’s case is to focus upon what they think are the best arguments, the arguments which will win a case, rather than the most worthy arguments.

It should be made very clear, I am one of the most passionate supporters of the Human Rights Act and in this case, Freedom of Speech. It was fundamental to our recent submissions in the ‘Occupy’ case and the rights relating to the protests outside St Paul’s Cathedral, but in the Paul Chambers case, it seemed to us that the route to success lay in an analysis of the criminal law.

That is not to say that Freedom of Speech was not the stalking ghost behind all of our submissions and the Chambers case could perhaps be described as one of the most important cases on Freedom of Speech, without mentioning, in any significant respect, its name.

So where are we as the dust begins to settle on the Twitter Joke Trial?

A number of things can be distilled from the judgment of the Lord Chief Justice, and his analysis of the Communications Act 2003 Section 127.

Paul Chambers, a 26 year old man at the time of the event was of previous good character when he posted the now notorious message, or joke as we now can legally call it, on the 6th January 2010. The message was posted onto the public time line which meant that although it was sent to his girlfriend, it was available to be read by some 600 or so Followers. The unfortunate series of events which then played out are now probably known by millions of people, culminating in his arrest at his place of work and a series of cases spanning 9 days in overall court time, all of this, despite the fact that on the 13th February 2010 it was observed that the South Yorkshire Police considered the message “a joke”.

In passing it should be said that I agree with the gathering voices who are demanding an explanation as to why the CPS, in the face of all this, considered that it was worth expending very many hours and thousands of pounds of taxpayers money upon taking this man through the whole panoply of criminal courts that this country has to offer. It is perhaps sobering to compare the way the CPS have dealt with Paul Chambers and the court appearances of Abu Hamza to realise that there is little between both cases when it comes to the number of courts that have been required to engage with the issues. The word proportionality keeps coming into my mind every time I consider the role of the CPS in this case.

After both Doncaster Magistrates Court and then the Crown Court, on appeal, maintained the defendants conviction under Section 127 (1) (a) of the 2003 Act, the Crown Court stated a case for the High Court to consider. It is worth emphasizing this, as, contrary to some reports, this case was not a conventional appeal against conviction. The relevant statutory provisions in relation to case stated appeals from the Crown Court (and indeed the Magistrates Court) are set out in the Supreme Court Act 1981 Section 28, wherein any order, judgment or other decision of the Crown Court can be challenged, in this case on the basis of error of law.

Importantly, when it comes to considering whether the DPP could have withdrawn his opposition to case stated procedure, Practice Direction 52 provides that where the parties agree as to terms of disposal of the matter, it can be listed as an uncontested proceeding without the necessity of the parties or their representatives having to attend. The DPP did not take this step.

The case stated to the High Court turned upon a definition of the words “of a menacing character” contained within Section 127 (1) (a) of the 2003 Act.

We decided to direct the attention of the court to the Actus Reus and Mens Rea elements of the offence. Interestingly, right up until the final hearing, the Prosecution were arguing that there should be no requirement of intent on behalf of the sender of the message. This was a dangerous submission and one which had to be dealt with comprehensively.

The judgment of the Lord Chief Justice is reassuring and here are the 4 principles as I see them

1]     A message which does not create fear or apprehension in those to whom it is communicated, or may reasonably be expected to see it, falls outside the Act, because it lacks menace.

2]     The test is an objective one.

3]     The message needs to be examined in its context.

4]     The mental element of the offence is directed exclusively to the state of mind of the offender, and that if he may have intended the message as a joke, even if a poor joke in bad taste, it is unlikely that the mens rea required before conviction for the offence of sending a message of a menacing character will be established.

This is an important case on a number of levels, yes for Freedom of Speech, of course for the right to make a joke, which should, perhaps now be enshrined in the Convention, but it also provides a timely warning, that however sensible the law, it is always at the mercy of thoughtless, careless and insensitive application.