Month: July 2012

This post is just a quick note to congratulate Jack Beatson (pictured left) on his elevation to the Court of Appeal in London. Before he became a judge, Jack was Rouse Ball Professor of English Law at Cambridge and a Fellow of St John’s College, and in that capacity he supervised my PhD thesis. (Adopting a line I saw elsewhere, we both survived).

I’m delighted to learn today that, in the formal wording of such announcements, the Queen has been pleased to approve the appointment of The Honourable Mr Justice Beatson as a Lord Justice of Appeal to fill a forthcoming vacancy in the Court of Appeal. In Debrett’s, he lists his recreations as “trying to relax”. I fear he might not have much time for that in his new role.

Congratulations, Jack!

In my previous post, I discussed what would happen if your airline made a mistake with your online booking. Let’s assume that you successfully booked your flight, and have turned up to the airport, only to find that your flight is cancelled. What would you do? Well, on 6 January 2010, it happened to Paul Chambers, and he sent a frustrated tweet:

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!!

I could have done as much myself (I am Spartacus). Unfortunately, Chambers found himself in very hot water: he was convicted of sending by a public electronic communication network a message of a “menacing character” contrary to section 127(1)(a) and (3) of the Communications Act 2003 (the Act); he was fined £385 and ordered to pay £600 costs. Fortunately for Chambers, there was eventually a happy ending: his appeal against this conviction was allowed today.

Congratulations to @pauljchambers and his fiancée @crazycolours, and kudos to his legal team, @DavidAllenGreen, @John_Cooper_QC, @sarahprz82 and @major_clanger. The case has been newsworthy online, especially on twitter at the hashtag #twitterjoketrial; and the successful of the appeal has been widely reported. The decision itself is an important interpretation of section 127, which provides:

(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.

In today’s case, Chambers v Director of Public Prosecutions [2012] EWHC 2157 (QB) (27 July 2012), Lord Judge CJ (with whom Owen and Griffith Williams JJ concurred) held that Twitter falls within the ambit of the section:

25. In our judgment, whether one reads the “tweet” at a time when it was read as “content” rather than “message”, at the time when it was posted it was indeed “a message” sent by an electronic communications service for the purposes of s.127(1).

The heart of the case was whether the tweet constituted a message of “menacing character”, and Lord Judge CJ held that it did not:

30. … a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside this provision, for the very simple reason that the message lacks menace.

31. Before concluding that a message is criminal on the basis that it represents a menace, its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent. …

Having considered the terms, character, context and circumstances of the tweet, and the operation of twitter, it was clear to Lord Judge CJ that it could not be said to be menacing. On that basis, the appeal was allowed.

However, the Court also went to consider another aspect of the section. Lord Judge CJ held that the mental element of the offence (the mens rea) is satisfied either if the offender is proved to have intended that the message should be of a menacing character or if the offender appreciated the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it. And he held that, since

the mental element of the offence is directed exclusively to the state of the 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.

It was a comprehensive win for Chambers. It should never have come to this. But it will be reassuring for the future. Meantime, as Lord Judge CJ observed during the course of his judgment:

Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation. … we should perhaps add that for those who have the inclination to use “Twitter” for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.

When a website makes a mistaken offer which customers then accept, contracts may very well result. However, that is only a small part of the story. The mistake may mean that there really is no contract. Or the website’s terms and conditions may protect them (though there are some situations in which such terms might not be enforceable).

This kind of mistake is a pretty regular occurrence, and it happened to United Airlines over the weekend. Via the Gulliver blog on the Economist website, I learn of the following story in the Chicago Tribune:

United Airlines error sells Hong Kong flights for 4 miles

United Airlines customers with reward miles were able to book tickets over the weekend to Hong Kong for only four miles, plus taxes and fees, because of a programing error, according to the airline.

A round-trip flight from Los Angeles to Hong Kong typically starts around $1,800 or 60,000 reward miles under the MileagePlus reward program.

But because of a programing error, some United passengers who booked flights to, from or through Hong Kong were charged only four miles plus taxes and fees, which amount to about $35. …

United Airlines have cancelled the tickets, though it is not clear to me that this is permitted in Rule 5 of United’s Contract of Carriage (and it may run afoul of the US Department of Transportation rules). I have blogged about similar mistakes on the part of Aer Lingus, Dell, Best Buy, Arnotts, and Round Hall, but I never cease to be astonished not only at the number of websites selling goods and services which do not provide for these kinds of mistakes in their terms and conditions but also at the widespread apathy there is on the part of consumers for these terms and conditions.

For me, the moral of these stories is clear. Vendors should ensure that the terms and conditions of their websites cover such eventualities; and consumers should be aware of such terms and conditions. Here, as in so many other situations, the real issue is that, in the words of too many annoying advertisments, terms and conditions apply. And since they do, consumers should be aware of them.

Another quotable quote from Hogan J, this time about the right to personal liberty in Bunreacht na hÉireann.

Article 40.4 provides:

1° No citizen shall be deprived of his personal liberty save in accordance with law.

2° Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.

In FX v Clinical Director of the Central Mental Hospital [2012] IEHC 272 (03 July 2012) Hogan J held:

19. It may be that … the jurisdiction under Article 40.4.2 is a singular one, yet if this is so, let this be its own tribute to the Constitution’s unrelenting commitment to the protection of personal liberty.

On Friday 13 July, Prof John Horgan, the Irish Press Ombudsman, gave evidence to the Leveson Inquiry on the Culture Practice and Ethics of the Press sitting in London. His written statement is here (pdf, plus exhibit (pdf)) and a full transcript of his evidence is here (pdf). His evidence concerned the workings of the Press Council of Ireland and the Office of the Press Ombudsman, which were established in 2007 to safeguard and promote professional and ethical standards in the Irish print media. This system had already been discussed by Dr Daithí Mac Síthigh in his evidence to Leveson last December, but Horgan was able to go into more detail about it. A good summary of his evidence, in the context of other evidence in the same module, is provided by Natalie Peck on INFORRM’s blog yesterday morning. Here are some extracts (with links: some in original, some added):

… PCC chairman Lord Hunt … gave evidence to outline his proposal [pdf] for a reformed self-regulatory system … [including] a whistleblowing hotline for journalists to report on failing standards and internal governance, and an ombudsman for handling appeals of decisions made by the complaints arm of the body. …

David Thomas, of the British and Irish Ombudsman Association, discussed how an independent ombudsman could fit into a future regulator to oversee decisions on complaints and standards. He told the inquiry the individual would be able to handle issues people are unable to take to court, or chose to divert from the legal system. He said although the ombudsman would be independent from a regulator, a free flow of information on emerging industry issues would be important. Jay QC suggested that the public would automatically trust an ombudsman figure, if appointed. …

Irish Press Ombudsman Professor John Horgan … said industry endorsement is “essential” for the success of a new press regulator in the UK. (more…)

I joined Jim Fitzpatrick (Economics Editor, BBC Northern Ireland) on George Lee‘s The Business on RTÉ Radio 1 on Saturday morning to discuss Friday’s contempt proceedings against Seán Quinn, Seán Quinn Jr, and Peter Darragh Quinn (podcast mp3 here).

On 29 June last, as part of a long-running action by the Irish Bank Resolution Corporation (IBRC) against various members of the family of the businessman Sean Quinn, Dunne J held that property schemes in Russia and Ukraine were designed by the Quinns to put €500m worth of assets beyond the reach of IBRC, and ordered the Quinns to unwind those transactions. On Friday, she held that they had not sufficiently complied with her orders, but she gave Seán Quinn three further months to do so. However, she held that Seán Quinn Jr and Peter Darragh Quinn had committed “outrageous” contempts of court, and sentenced each of them to three months in prison. Seán Quinn Jr was taken into custody after the hearing, to begin his sentence in Mountjoy Prison. As Carol Coulter points out in this morning’s Irish Times, Seán Quinn (Sr) remains at large as the judge felt that he is in the best position to work for the return of the assets.

Of the many interesting aspects of these orders, three stand out. First, Peter Daragh Quinn didn’t appear in court last Friday, and a warrant was issued for his arrest – if and when he is brought before the court again, he will be liable not only to the three-month sentence handed down on Friday but also to further severe penalties for this additional contempt. In the meantime, however, as Conor Lally and Niamh Sweeney write in the Irish Times, the authorities cannot force him to return if he has gone abroad:

“He had a sentence imposed on him for failing to comply with a civil order issued by the High Court, but that failure is not a criminal matter and extradition only applies to criminal matters,” said one legal source.

Another source pointed out that Mr Quinn … effectively has “double immunity”. He said the European Arrest Warrant could only be used to force a person’s extradition to serve a sentence in another country if the sentence was for longer than the three months imposed on Mr Quinn last Friday.

Second, if Seán Quinn (Sr) does not sufficiently comply with Dunne J’s orders within the three month period she set out on Friday, then he too faces prison for contempt on the same basis as his son (Seán Quinn Jr) and nephew (Peter Darragh Quinn). Third, the orders against the latter two contain two elements; (i) a three-month sentence as punishment for failure to comply with the June orders, and (ii) an additional open-ended committal, to remain in prison until they have purged their contempt. This means that, even after the three months are up, if the court determines that their contempt has not been purged, they would remain in prison until it has been.

As the orders against Seán Quinn Jr and Peter Darragh Quinn demonstrate, the aims of the contempt jurisdiction are twofold: to coerce or compel compliance with court orders, and to punish for non-compliance. The principles were set out by Finnegan P in Shell E & P Ireland Ltd v McGrath [2007] 1 IR 671, [2006] IEHC 108 (07 April 2006):

… committal for contempt is primarily coercive its object being to ensure that Court orders are complied with. However in cases of serious misconduct the Court has jurisdiction to punish the contemnor. If the punishment is to take the form of imprisonment then that imprisonment should be for a definite term. … in an appropriate case the Court must exercise its jurisdiction to commit for contempt not merely for the primary coercive purpose but in order to vindicate the authority of the Court and in which case the Court has jurisdiction to make a punitive order. …

When exercising its powers for coercive purposes the jurisdiction to imprison for an indefinite period for civil contempt is one to be exercised sparingly: … If there is any other means whereby compliance with the order of the Court can be achieved this should be adopted committal being in effect the last resort: … Committal by way of punishment likewise should be the last resort. It should only be engaged where there has been serious misconduct. In such circumstances it can be engaged in order to vindicate the authority of the Court. …

The three-month sentences against Seán Quinn Jr and Peter Darragh Quinn illustrate the power to make punitive orders of committal for a define period. The parallel indefinite orders against them illustrate the power to make coercive orders of committal until contempt has been purged. In the long run, this latter aspect of the contempt jurisdiction might prove even more significant for the Quinns.

The Broadcasting Authority of Ireland (BAI) is the body responsible for the regulation of broadcasting in Ireland, and two of its recent decisions raise the same question of whether a power provided to it by the Broadcasting Act, 2009 (also here) is consistent with the right to freedom of expression protected by the Irish Constitution and the European Convention on Human Rights.

The first relates to the moratorium on coverage of the referendum on the Treaty on Stability, Co-operation and Governance in the Economic and Monetary Union which came into effect from 2pm on Wednesday 30 May, the day before the referendum vote, and lasted until 10pm on Thursday 31 May, when polling stations closed. Pursuant to section 42(2) of the 2009 Act (also here), the BAI prepared a Code of Referenda and Election Coverage, on foot of which Irish broadcasters were unable to carry any content that related directly to referendum issues, including material pertaining to the merits or otherwise of the referendum and the related constitutional amendment proposed.

The second relates to the decision by the BAI that a radio advertisement against prostitution and sex trafficking by the Turn Off The Red Light campaign was “directed towards a political end” contrary to section 41(3) of the 2009 Act (also here). Turn Off The Red Light is a campaign to end prostitution and sex trafficking in Ireland. It is being run by an alliance of civil society organisations, including Barnardos, Dublin Rape Crisis Centre (DRRC), Focus Ireland, the Immigrant Council of Ireland, and Ruhama. Radio advertisements highlighting human rights abuses and sexual exploitation of women and children in Ireland are an important part of the campaign. However, to the extent that these advertisements called for an end to these abuses, the BAI held that they were political in nature, and could not be re-broadcast. As a consequence, the Turn Off The Red Light radio advertisement was re-edited to take account of the BAI’s decision.

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