In a two-part article for Criminal Law & Justice Weekly, I have looked at the position of the Crown Prosecution Service (CPS) in two recent high profile cases. The first concerns the “twitter trial” of Paul Chambers. The second looks at the trial of the barrister Simon Walsh arising out of pornographic images said to have been found in his possession. The first part has now been published (see Criminal Law & Justice Weekly, vol 176, 22 September 2012, pp556-7).
Readers will recall that Mr Chambers was convicted in the magistrates’ court regarding a supposedly threatening tweet. His conviction was upheld in the Crown Court but eventually overturned by the Divisional Court.
The interesting point concerns the appeal to the Divisional Court. According to its most recent press release on the subject, the CPS did not support the conviction, but still appeared before the Divisional Court and “reluctantly” contested the appeal, because the conviction was based on a finding of the Crown Court, which only the High Court could overturn. I, for one, am most uneasy with the thought of the CPS contesting an appeal it thinks should fail.
To illustrate the point, let us start with two scenarios where the proper course for the CPS would be to acquiesce in an acquittal. In scenario A, a conviction is obtained but the CPS then discovers that it has been based on an outdated section, and the offence no longer exists. Or perhaps the conviction has been based on an authority since overruled.
In those circumstances the obligation of the CPS would be clear: they would have to bring the correct statute or authority to the Court’s attention, point out the error and accept the defendant’s acquittal.
In scenario B, the CPS is informed by the police that it turns out that the defendant had a watertight alibi after all, and therefore the conviction was based on a patently wrong factual foundation.
Again, the CPS would have to accept the error and tell the court that it did not oppose the appeal.
Let us now return to Mr Chambers. Here the situation was slightly different. The facts – essentially, the existence of the tweet - were never disputed. What was in issue was whether the tweet constituted an offence under the Communications Act 2003. I can find almost no published opinion which ever thought that it did, save for those few people in the legal chain (police, lawyers and judges) who made the conviction come to pass.
So how does this differ from scenario A or B? Only in the sense that interpretation of a statute is not as cut and dried as in the case where the offence has been abolished, as in scenario A, and unlike scenario B the facts of the Chambers’ case were not disputed, just whether or not they should have amounted to a crime. But it is not so very far removed, if everyone takes the view – as it seems they did by the time it reached the door of the Royal Courts of Justice – that the conviction was based on an interpretation of the statute that was simply not in accordance with reality, and was therefore unworkable. If the DPP accepts that that is the case, he should not be turning up to court hoping to lose.
Instead, he should point out all the arguments below and explain why he has taken the view that they were mistaken and that the defendant should be freed. The Court would then most likely ask some searching questions about the DPP’s change of heart. It would be very unlikely, however, though I suppose not impossible, that the Court would insist that the conviction stood.
The alternative would be for the DPP to contest the appeal. Suppose he does so and wins. In that case, a man would remain convicted despite the prosecution wishing he had never been charged, and presumably taking the view that no-one else in comparable circumstances would be charged ever again.
I venture to suggest that that would not be a just outcome.
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