Thursday, 26 June 2014

Freedom of speech conundrums

Free speech. No ifs. No buts. But... What would be the reaction if I inferred in an email that I was going to burn down the council offices, preferably with all council employees still in it, and then I actually did it, and there was no investigation of the threat?

As it happens, I was once arrested for writing (in the context of the democratic "we"), that we should "burn down the offices of South Gloucestershire Council, preferably with the occupants still inside". This was in an email sent to the council chief executive. Probably not the smartest thing I've ever done, and not one of my more sober moments for sure. I still stand by the sentiment, but given the recent arson attack on North Avon Magistrates Court (a building I am familiar with for all the wrong reasons), the police probably made the right call in investigating.

I was held in a cell for several hours and then cautioned under the Malicious Communications Act. I could have argued the context in court, but the way they get you to accept a caution is to keep you banged up so long that you will do almost anything to expedite the process. Moreover, as I have recently discovered for myself, the cost of losing in a magistrates court is extremely high due to the parasitic nature of CPS. In hindsight I wish I had defended myself but I certainly concede it was a fair call for the police to at least investigate.

Then there is the one moment I am not especially proud of.  Readers will know that I have a special loathing and contempt of the police, not least because my one proper conviction is the result of the police failing to investigate a complaint I made against rogue bailiffs. I also have many other reasons to hate them and what they have become. Some years ago, in a moment of sheer vitriolic spite I happened to remark on my own Facebook that I was pleased a police officer had been murdered. I'm sure I'm not the only person to have ever thought this, but still, I am ashamed that I said such a thing in that context. What complicated matters was that the said officer was killed in Northern Ireland.

The next morning I awoke to a bulging inbox of hatred, most of which was pretty boiler plate troll material but one or two were death threats, and if you're a writer or blogger and you get a death threat from an Ulsterman, it's something you take deadly seriously. For a few days at least I was checking under my car to see if it had been tampered with.  It was a most unpleasant experience. Further to this, my then girlfriend, who was linked to me via Facebook, received some unspeakable messages that scared her and made her cry - exactly as they were calculated to do.

Now you can argue that I was a idiot and got exactly as I deserved, which in all fairness is probably absolutely true, but it speaks a great deal about the power of words, which can be more terrifying than any face to face threat, and it does have consequences that ripple outward. You have the right to offend, but not to terrorize.

You can imagine that going to the police would not have elicited much sympathy given what I said, but the police would still have been obliged to act, especially in the context of Northern Ireland and terrorism, where people have been murdered for saying much less. Such stupidity would have taken up police time at great expense. But let us extrapolate for a moment...

Outside the context of the internet, the police would also likely have brought a charge against me for Breach of the Peace, which in the case R v. Howell (1981) is described as: actions which harm another person, or harm his property in his presence, or actions which are likely to provoke such harm. A breach of the peace may occur on either public or private property. However, in the context of the internet, the Malicious Communications Act is invoked, which is presently not well suited to social media since it predates mass adoption of the internet. But is the tool the authorities have to work with and is employed to the same effect as breach of the peace law.

So now I ponder the case of Jake Newsome was jailed under the Malicious Communications Act for posting a Facebook comment about the murdered teacher Ann Maguire. Newsome had written, "I’m glad that teacher got stabbed up, feel sorry for the kid… he shoulda pissed on her too". This is a cruel and cretinous thing to say, calculated to cause gross offence. Like my own inane comments, he posted them on his own Facebook rather than directing them at the victims family, but his comments, like my own, reached their target and caused a great deal of upset.

Here's where things get a little muddy. British law is derived from British values and sentences handed down in courts balance the deed with the intent. Aggravating factors in the case of the one-punch killer in Bournemouth resulted in a mere four years sentence. We may not like it, but it's about right. While the the pitchfork wielding public demand hanging, our courts still meticulously consider all the facts and balance the demands of the public for punishment with the need for justice. The courts don't always get it right, but I very much prefer it to the alternatives. The public are not always tolerant of nuances. It is good that the courts are.

So when it comes to matters of trolling, which is a unique internet phenomenon, not least because of the psychology of anonymity and the solitude in which such thoughts are formed, it requires closer examination. Words used in trolling are offensive, but not casually so. I may say things that upset a few people online, and so what?, but trolling is a fine art and the deed is calculated to cause maximum offence and maximum disruption. The intent matters. The real life equivalent would be the obscene protests by Westboro Baptist Church at the (private) funerals of war casualties.

The hijacking of a funeral, is possibly the most tasteless and gratuitously callous thing I could possibly imagine and was designed to be so. It was likely to cause a breach of the peace and it very much did. As it happens I don't think their right to protest trumps the right of the family to grieve for their loved ones in a dignified setting. Protest the war if you will, but please do it somewhere else.

Similarly, living in the same town, such remarks in an online community, calculated to cause offence, where the motive is clearly to cause distress, that has real life consequences, with public order implications. In this context, the individual is responsible for what they say and the disorder that follows. This is why we have incitement laws.

To say that we have totally free speech is to say that words do not have power and consequences. The weak minded can be willfully exploited by the charlatan, the fraud and the tyrant. Powerful figures can have great influence over the deeds of others, and such sociopaths very often know when they have that degree of control. They do share responsibility if those they have manipulated then go on to a suicide bombing or some other atrocity.

In sentencing, as much as we judge intent, we judge the severity of the crime. In the case of Newsome, the intent was there, but as it happens the consequences were little more than some people being offended. In this instance, not by any stretch of the imagination can I see how a jail sentence is warranted. Sentencing must always be proportionate to the crime, and not be of an exemplary nature.

That said, trolling is a distinct activity that is abstract to free expression and should be treated as a public order offence where there is a likelihood of civic disruption. Given the robust hyperbole I have employed in my campaign against my local council and their bailiffs, were I to say on Facebook that I would stab the next bailiff who darkened my door, given my colourful record, the police have probable cause to take me seriously. They would be negligent not to, and Facebook threats have to be taken seriously. They have an impact on quality of life.

We also have to recognise that society is changing. There has been an unprecedented (and not properly explained) drop in violent crime and property theft in the last decade, and that is not a result of more police activity. There are multiple factors which deserve a discussion piece of their own, but one of the contributing factors is that while social interaction has moved online, a great deal of crime has too and social media is one of the tools that internet criminals employ.

Consequently, we learn from the BBC that complaints originating from social media make up "at least half" of calls passed on to front-line officers, a senior officer has told the BBC. Chief Constable Alex Marshall, head of the College of Policing, said the number of crimes arising from social media represented "a real problem". He said it was a particular problem for officers who deal with low-level crimes and about 6,000 officers were being trained to deal with online offences.

Now we can complain that the plod are pandering to the very worst aspect of British curtain twitching fascism, and there is a good case to answer, but the police do have to respond to the demands of the public and if times change, they must change with it. We do need a police force that is social media savvy, capable of reacting to changes in how we communicate.

That we get poor decisions from the police and the courts is not because there is some higher agenda to stifle free speech. I think that is a symptom of a broader malaise that has gradually reduced the quality of police (and their overall average IQ), and the justice system is so proscribed it has lost its autonomy - to such a degree that it has lost touch with justice, not just in matters of free speech.

It's a bit much to expect that these matters will be resolved any time soon without a revolution in governance, and even if we update the law it is still going to be clumsily worded, as very often law is. What is perfectly rational to a civic minded individual sounds spine-chillingly sinister to men of words like me. So there is one very simple measure we can take to protect both the victims of trolling and protect free speech at the same time.

We do need policing of social media because philosophical absolutes regarding free speech are too simplistic, but in order to stop these frivolous and draconian convictions we should insist that all arrests made under the Malicious Communications Act be subject to a jury trial, thus ensuring the CPS only bring trials they are confident they can win.

Over the years jury trials have been superseded by speak-your-weight machines (aka magistrates) because the lawmakers know they would have difficulty securing convictions were they to entrust assessments of guilt to the people. Moreover, jury trials and justice are horribly inefficient and messy for the state so, in the name of efficiency (for them), justice has taken a back seat. I wonder how much money councils would make if bus lane fines were put before juries? But that would be too much like democracy. And that is the basic problem with our government and our courts. Our rulers simply don't trust us.

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