Tony Freitas

tony

Tony is the Head of the Criminal Law Department, after initially joining McKinnells in May 2005. He rather foolishly left the firm in mid 2010, before returning in September 2011 in his current role.


— Tony Freitas is the Head of the Criminal Law Department at McKinnells Solicitors in Lincoln.


In May 2010, Paul Chambers, then living in Doncaster, tweeted about the local airport, Robin Hood, after it had been closed following heavy snow in January 2010. His tweet was “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your s**t together otherwise I am going to blow the airport sky high!”

While clearly not in the best possible taste, Chambers only intended this to be a joke. Not everyone shared his sense of humour, particularly the Crown Prosecution Service.

Chambers had about 600 followers on Twitter. No one other than them saw the message up for five days. Then, a duty manager at the airport, during a speculative search, picked it up. As he was required to do, he passed it on to his boss and sensibly his boss categorized it as a non-credible threat. That was about the last time that anyone showed any sense for the next two years.

The airport procedures required the matter be reported to the police. Two days later, South Yorkshire Police arrested Chambers at work. He didn’t deny sending the tweet, but said that it was a joke intended only for his friends to see.

The police accepted this in their report to the CPS. Yet, despite this, Chambers was then charged with sending a menacing electronic communication under section 127 of the Communications Act 2003, an Act, incidentally, which pre dates Twitter by four years.

To prove the case, the prosecution had to establish that an ordinary person seeing the tweet would be alarmed. Despite the prosecution not calling any alarmed ordinary people, Chambers was convicted at the local magistrates court. He was fined £385 with £600 costs. He appealed to the Crown Court, where his conviction was upheld in November 2010. The Crown Court judge found that his tweet was “clearly menacing”.

Chambers took his appeal further, supported by Stephen Fry and Twitter itself. His defence QC pointed out that terrorists don’t send messages giving a week’s notice of their intentions, nor do they do so with their identity open and unconcealed. It was not sent in the context of terrorism and the court should not have found that it did.

Chamber’s case came before the Lord Chief Justice, Lord Judge. While still a practicing barrister before becoming a judge, Igor Judge appeared for many years at Lincoln Crown Court. He earned a formidable reputation as a lawyer, but also as a very grounded and humane person. He made short shrift of the appeal when giving his recent judgment. He found that while Chambers may have been rather stupid, he should not have been convicted of the offence. He said people reading the tweet would brush it aside as a silly joke, or a joke in bad taste or empty and bombastic banter, so it would be a contradiction in terms to describer it as a menacing message.

The case, following on from John Terry’s acquittal a few weeks ago on a charge of making racist comments, does raise issues about the CPS decision-making. Large sums of public money will have been spent in prosecuting Chambers, money that could have been saved if the person making that decision had remembered we don’t start prosecuting people for being a bit stupid.

Tony is the Head of the Criminal Law Department, after initially joining McKinnells in May 2005. He rather foolishly left the firm in mid 2010, before returning in September 2011 in his current role.

— Tony Freitas is the Head of the Criminal Law Department at McKinnells Solicitors in Lincoln.


The recent acquittal of John Terry on a racial abuse charge raises some interesting questions about the basis on which the CPS decide to bring prosecutions.

For those who have been living on the Moon for the past six months and do not know the background; the case was that Terry, then the England captain, was alleged to have called an opposing player a f***ing black c*** on the pitch while playing for Chelsea against QPR. That player was Anton Ferdinand, brother of Rio Ferdinand, Terry’s long time defensive partner in the England team.

Ferdinand was unaware of the comment at the time, despite being close to Terry when the words were supposed to have been said. His then girlfriend pointed them out to him when highlights of the match were shown on television later. The football authorities also picked up on Terry’s behaviour. Following an FA enquiry, the matter was referred to the police. Terry denied the allegations. Nevertheless, the CPS decided in their view that there was sufficient evidence available to prosecute Terry. He was charged with racial abuse, an offence carrying a maximum fine of £2,500 and can only be heard at a magistrate’s court.

Although only a modest fine to a Premier League footballer, the damage to Terry following a conviction would have been huge. He had already lost the England captaincy for Euro 2012 as a result of being charged, and to be branded a racist would have put his position at Chelsea, a multi racial side, in serious doubt.

At the trial, Ferdinand was a reluctant witness. There were other odd features of the case too. Despite bringing charges of racial abuse against Terry, the CPS prosecutor in cross-examining conceded that John Terry was not a racist. Terry had accepted that he had used those words (although the defence did still call a lip reading expert to cast doubt on the exact words used), but his defence was that what he had said was “I did not call you a f***ing black c***”.

He said he had heard someone else, possibly someone in the crowd, use the phrase and he had wanted to make it clear to Ferdinand that he himself had not said it.

The chief district judge, who heard the case, decided that this was a possible explanation and that the prosecution had to prove the case otherwise. As they had failed to do so then Terry was acquitted.

What is interesting is the basis of the decision to prosecute. Ferdinand, in court, admitted that throughout the match he had been goading Terry by frequent references to an affair Terry had had with the girlfriend of a former teammate. Terry had also admitted he had accused Ferdinand of having bad breath. He had also told Ferdinand, on more than one occasion, to “f*** off”. Yet neither the players, the match officials nor the football authorities had regarded this behaviour as unusual. Had someone spoken to a police officer in such a manner on Lincoln High Street on a Saturday night they may well have been arrested.

Also, in all the newspaper reports (and this article), the f word and the c word have asterisks so as not to cause offence. Only the word “black” is written in full. Yet (ironically) it is the addition of this word into the sentence, which led to the CPS decision to charge Terry, not the f word or the c word. Does that sound right?

To denigrate someone or to treat them differently because of their skin colour is just plain wrong and no-one would argue otherwise. It should not happen. Racial abuse should be condemned. But was it a sensible decision for the CPS to prosecute someone who they themselves conceded was not a racist in these circumstances?

Tony is the Head of the Criminal Law Department, after initially joining McKinnells in May 2005. He rather foolishly left the firm in mid 2010, before returning in September 2011 in his current role.

— Tony Freitas is the Head of the Criminal Law Department at McKinnells Solicitors in Lincoln.


A campaign group called Feel Free to Insult Me has been set up recently and is busy attracting publicity to have section 5 of the Public Order Act 1986 amended.

This section makes it a criminal offence to use threatening, abusive or insulting words or behaviour within the hearing or sight of someone who is likely to suffer harassment, alarm or distress as a result. The campaign group wants to leave in threatening and abusive, but decriminalise the insulting element.

The group itself is an unusual mix, being headed by Peter Tatchell, the gay rights campaigner and David Davis, the former shadow Home Secretary as well as various religious groups.

Tatchell himself has often been on the receiving end of insults, as well as dishing quite a few of them out himself, but he now wants to stop the police prosecuting anyone who has insulted someone else, as he and the other group members see it as restriction of free speech.

The 1986 Act was preceded by The Public Order Act 1936, which it repealed. That too made it a criminal offence to use threatening, abusive or insulting words or behaviour, but the consequences under this earlier act was that it could cause a breach of the peace rather than harassment, alarm or distress.

The 1936 legislation was passed at a time when Oswald Mosley’s blackshirt parades in London often ended in violence and was an attempt to control such behaviour and give the police wide powers to arrest those involved.

In fact, the control of public order goes back to the 14th century, with the Justice of the Peace Act 1361. This gave justices of the peace power to bind over anyone who had behaved in what would today be regarded as an anti social way.

It was not a criminal sanction, the defendant being required to pay a bond and was then bound over to keep the peace for a future specified time. If they subsequently breached the order then the bond would be forfeited to the crown.

The current campaigners for the abolition quote some examples, which they say, justify their belief that the act should be repealed. For example, a student at a demonstration was arrested when he asked a mounted policeman if his horse was gay.

Another student was arrested for demonstrating outside the Church of Scientology holding a placard saying it was a dangerous cult. There has even been an arrest of a footballer for abusing a teammate for a misplaced pass.

These are all examples of, frankly, pretty daft actions by the police and none actually went to court and resulted in a conviction. And that, perhaps, is the flaw in the campaign.

Because to abolish the insulting element, while it may stop such silliness, would also leave many more people vulnerable. We live in a very mixed society.

To insult someone for being different should be discouraged, not encouraged. Peter Tatchell might have a thick enough skin to ride insults about being gay, but not all gay people are, so why should the law not protect them?

What about insults on social media? Should we free up people to randomly insult others? What about behaviour intended to insult a whole group, not just an individual? Should the Muslim cleric who ripped up poppies at a Remembrance Day parade be immune from arrest? Let me know your views below… just don’t offend me when you do!

Tony is the Head of the Criminal Law Department, after initially joining McKinnells in May 2005. He rather foolishly left the firm in mid 2010, before returning in September 2011 in his current role.

+ More stories