April Jones Facebook comments: should Matthew Woods be in prison?

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April Jones Facebook comments:

Director of public prosecutions to draft guidelines about prosecution for offensive, indecent, or obscene comments online

Joshua Rozenberg

Should Matthew Woods have been sentenced to 12 weeks in prison for making "grossly offensive" remarks about the missing five-year-old girl April Jones on his Facebook page? While Woods, 19, was pleading guilty to the offence in Chorley magistrates' court on Monday -- and while Mark Bridger, 46, was appearing before Aberystwyth magistrates charged with April's murder -- the director of public prosecutions, Keir Starmer QC, was sitting round a table with a group of journalists discussing whether people like Woods should face charges in the first place.

Starmer made it clear that he had to enforce the law as it was; he couldn't grant immunities. On the other hand, the Crown Prosecution Service, which he heads, couldn't prosecute everyone who sent an offensive tweet or email. So the DPP is in the process of drawing up draft guidelines, which he hopes to circulate for public comment next month.

Before that, he is discussing the possible scope of those guidelines in meetings with journalists, lawyers, academics, regulators and key stakeholders.

Starmer disclosed his plans last month when announcing that he would not be prosecuting the semi-professional footballer Daniel Thomas for posting a homophobic message on Twitter about the Olympic divers Tom Daley and Peter Waterfield.

The fundamental question Starmer has to decide is how to balance freedom of expression against the restrictions on free speech laid down by parliament.

Woods was convicted under section 127 of the Communications Act 2003, which makes it an offence to send a "message or other matter that is grossly offensive or of an indecent, obscene or menacing character" using a "public electronic communications network". The maximum penalty is six months' imprisonment.

His defence lawyer told the court: "In one moment of drunken stupidity he places himself as public enemy number two – behind only the person who carried out this crime." But should Woods have faced charges at all?

Before considering just how offensive a message had to be to qualify as "grossly" offensive, the journalists sitting round Starmer's table urged him to set a high threshold for bringing prosecutions under section 127. As the DPP's own officials had noted, it was not the job of the criminal law to protect the public against remarks that were in bad taste or opinions that were controversial. The European court of human rights decided as long ago as 1976 that the right to freedom of expression includes the right to say things or express opinions "that offend, shock or disturb the state or any sector of the population".

On the other hand, Starmer thought a message might be more likely to lead to a prosecution if it was part of a campaign of harassment against an individual or individuals; if it was a credible threat to the life of the recipient or the recipient's family; or if it was an incitement to hatred on grounds of gender, race, religion, disability or sexual orientation. Someone who retweeted a message -- particularly if that gave it a much larger circulation -- might also face prosecution.

There was some lively discussion about the factors that should make a prosecution less likely. What if the message was meant as a joke, as Woods had apparently claimed his Facebook comments were? That should surely not be a get-out-of-jail card, although we seem to give stand-up comedians and political satire programmes much greater latitude on grounds of racist jokes and bad language. What if a message was not intended to become public or the author did not expect it to be seen by the person he was writing about? That should be no defence if a message was posted on Twitter -- users ought to know by now that a tweet is more like a broadcast than a email -- though it might protect emails themselves.

And should the CPS take account of the degree of distress caused to recipients or their families? It was suggested that prosecutors should be wary of attaching too much weight to subjective factors -- although it might be difficult to prove a case without the victim's co-operation.

These were no more than points for discussion and may not appear in this form when the draft guidelines are published. But they give some idea of thinking within the CPS. Prosecutors have to exercise their discretion in every charge they bring and it is not always easy to decide where the public interest lies.

Should Starmer be influenced by the substantial prison sentence passed on people like Woods -- approaching the maximum, given the one-third discount for an immediate plea of guilty? Or by the strength of public feeling? Woods was apparently arrested for his own safety after about 50 people encircled his home.

Less so, I would argue. People who cause needless hurt and offence to bereaved families and their supporters should be censured, shunned and shamed. Prosecution and possible imprisonment should be reserved for those who make credible threats to kill or maim others, putting their victims in genuine fear for their safety.

And what of the hapless Woods? He can hardly appeal against conviction, given that he pleaded guilty on the strength of perfectly sound legal advice. On the other hand, an appeal against sentence may stand some prospect of success. It certainly ought to.

Source: Guardian UK