Hollie Bentley prosecution: How was evidential stage satisfied?

The request was partially successful.

Dear Crown Prosecution Service,

Yesterday (30th November 2011), it was reported that 19 year old Hollie Bentley was cleared of charges under the Serious Crime Act at Leeds Crown Court in relation to a Facebook communication that was alleged to have been an incitement to cause rioting in Wakefield, West Yorkshire. On the 9th of August, during the worst of the UK rioting, she posted a Facebook event with the title "Wakey Riot" followed by the words "Who's Up for it? LMFAO".
http://www.yorkshireeveningpost.co.uk/ne...

According to the report, the jury heard that miss Bentley responded to a criticism of her posting with "You do know this is a joke, right?" The jury also heard that Miss Bentley, when questioned by police, said that she thought the posting was funny and insisted that it was a joke. Under questioning from the judge, the interrogating officer Pc Angelina Shute admitted "It was clear to me she meant it as a joke."

Section 44(2) (Intentionally encouraging or assisting an offence") of the Serious Crime Act reads: But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.
http://www.legislation.gov.uk/ukpga/2007...

In light of the jury having been directed by the Recorder of Leeds to find the defendant Not Guilty because the jury could not be sure at the time of posting that the defendant intended for the message to be taken seriously, I request that you provide in as much detail as possible the manner in which the CPS determined that this case satisfied the evidential stage of the Full Code Test, which is to say that there is sufficient evidence to provide a realistic prospect of conviction. Specifically, this stage requires that "an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged."
http://www.cps.gov.uk/publications/code_...

In anticipation of possible exemptions, I insist firstly that section 30(1)(c) (Information held relating to criminal proceedings which the
authority has power to conduct) should be overridden by the very strong interest of the public in seeing that criminal charges, particularly of such a serious nature, are only issued after sober and careful deliberation. It is vital that the Crown Prosecution Service are seen to be taking this responsibility seriously.

In anticipation of an exemption under section 40(2) (Personal Data Relating To Third Parties), I would ask that the CPS are careful to furnish only information that does not breach the Data Protection Act or to obtain clearance from the owner of the sensitive data. I look forward to your response.

Yours faithfully,
Matt Flaherty

Freedom of Information Unit, Crown Prosecution Service

Dear Mr Flaherty

 

FREEDOM OF INFORMATION ACT 2000 REQUEST

 

We confirm receipt of your request for information.

 

Your request was received on 1 December 2011 and we are dealing with it
under the terms of the Freedom of Information Act 2000. Please note there
is a twenty working day limit (from receipt of request) in which we are
required to respond to requests under the Freedom of Information Act 2000.

 

The deadline for your request is 29 December 2011, however we will
endeavour to respond sooner.

 

Yours sincerely

 

 

 

Information Management Unit

Tel:  020 3357 0899

Fax: 020 3357 0229

E-mail:  [CPS request email]

 

 

 

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Freedom of Information Unit, Crown Prosecution Service

2 Attachments

Dear Mr Flaherty

 

Please find our response attached.

 

Kind Regards

 

 

Information Management Unit

 

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Dear Crown Prosecution Service,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of the Crown Prosecution Service's handling of my FOI request 'Hollie Bentley prosecution: How was evidential stage satisfied?'.

I believe that you have not given enough consideration to the public interest test of the section 30 exemption. In your response of 16th December 2011 you have stated as follows:

"As the Crown Prosecution Service (CPS) is a public prosecuting authority, members of the public
are entitled to know the broad principles upon which a prosecution may or may not be brought. As
you will be aware, the principles that underpin a decision of a crown prosecutor to review, advise on
and prosecute cases are as set out in the Code for Crown Prosecutors (the Code). Beyond that, it
is inappropriate to enter into either a discussion on, or to supply details of, an individual casework
decision, such as you seek. The public interest requires confidentiality, both in respect of CPS
decision making and communications between the CPS and the police in such matters.

On balance, therefore, I consider that the public interest favours maintaining the s30 exemption.
Please see the attached Section 17 Notice for further information."

Please be aware that this is not the only case that I have scrutinised. I also sent requests for information about the evidential stages of two prosecutions related to Facebook postings around the time of the UK riots. These cases were prosecuted as Communications Act offences under section 127. See FOI #2885 (unnamed juvenile of Bury St Edmunds) and #2886 (David Glyn Jones of Bangor, Gwynedd). In both cases, the CPS cited s30(1)(c) in its refusals to disclose information. As both defendants had entered guilty pleas I decided not to request internal reviews. The case of Hollie Bentley is the first riots communication case that I am aware of in which a defendant pleaded Not Guilty, and the actions of the court make clear that this prosecution was unwarranted.

The CPS Code of Practice to which you refer states under General Principles paragraph 2 "It is the duty of prosecutors to review, to advise on and to prosecute cases or to offer an appropriate out-of-court disposal to the offender. Prosecutors must ensure that the law is properly applied; that all relevant evidence is put before the court; and that obligations of disclosure are complied with, in accordance with the principles set out in this Code."
http://www.cps.gov.uk/publications/code_...

As I have already pointed out, there is a strong burden on the prosecution to prove intent under section 44 of the Serious Crime Act: "But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act." There was manifestly insufficient evidence to prove intent in this case. The judge made that clear when he instructed to jury to find Not Guilty. One of your principle witnesses, the arresting officer, admitted that the Facebook post was clearly a joke. It therefore appears that either the law was not properly applied or the evidence was not thoroughly reviewed. There is precedent for the CPS failing to properly apply the law to an online communications offence. When the CPS charged Paul Chambers (R v Chambers) with a s127 offence for a Twitter update, the South Yorkshire prosecutors mistakenly believed that this was a strict liability offence. The CPS appeared to be unfamiliar with the relevant case law until it was brought to your attention.

The prosecution arguments against Hollie Bentley that were reported in the news are disturbing. From the Yorkshire Evening Post: "Prosecuting, Richard Clews, said the case centred around the “dark days” of the summer when many British cities were gripped by violence. “On the 9th of August this country was in the thick of them. This case is about the riots,” he told them." This is not true. The case was about whether the defendant intended to encourage violent disorder.

Also published in the same article: "“She told the police she thought it was funny. What the prosecution say is that nobody could possibly think anything like that was funny. “It is not funny now and it was certainly not funny on the 9th of August.”" This beggars belief. The CPS is not in the business of judging humour and thank goodness. "Nobody could possibly think anything like that was funny." A joke is not always funny (a subjective term if ever there was one). Sometimes a "joke" is simply ironic. I should not be having to explain this.

Given the great concern among members of the public, myself included, that reactions to the August riots have been excessive and counter productive and have resulted in injustices, I feel the public has a right to examine the decision making process behind a failed prosecution such as this one. I am very grateful to Ms Bentley for finding the courage to enter a Not Guilty plea and put her life on hold for several months while the prosecution attempted to build a case. It cannot have been easy for her or her family. This is the human cost of an ill conceived prosecution and it goes right to the heart of the CPS Code of Practice.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/ho...

I ask that you please respect the ICO guidance and conduct your review within twenty working days. Thank you.

Yours faithfully,
Matt Flaherty

Dear CPS Freedom of Information Unit,

I have been directed to another piece of news coverage which is a bit more complete. The Daily Mail reported the case on the 1st of December, the day that I made my request to you. http://www.dailymail.co.uk/news/article-...

Something in this report jumped out at me: "But the judge agreed after 45 minutes of prosecution evidence there was no case to answer. He rejected the Crown's argument that similar previous cases which resulted in jail terms would have been equally difficult to prove. The judge maintained those cases were different because the defendants pleaded guilty and could not accept LMFAO referred to Miss Bentley 'sitting in her bedroom, creating this, and laughing inwardly about Wakefield being burned to the ground'."

In my opinion the argument that similar previous cases which resulted in jail terms would have been equally difficult to prove merely serves to weaken those other similar cases without strengthening this one. The defendants in those other cases, the most notable of which were Jordan Blackshaw and Perry Sutcliffe-Keenan who both incurred four year terms, chose for whatever reasons to plead guilty. I think that's a real shame and we can speculate that they may have received bad advice. I would have liked to see mens rea proven in open court. It is worth noting here that Blackshaw and Sutcliffe-Keenan had both nevertheless maintained and argued throughout that they had been joking.

But the prosecution in the Bentley case seems to be arguing that it should not be lumbered with the usual burden to prove intent since earlier similar convictions under Serious Crime Act s44 would have been equally difficult to prove. This suggests, quite frankly, that those earlier prosecutions also should have failed to satisfy the evidential stage of your Full Code Test! It is difficult to avoid the conclusion that this brazen "have your cake and eat it too" approach betrays an astoundingly cavalier attitude toward criminal liability, one that is at odds with your Code of Practice. Please consider this addendum when conducting your internal review. Thank you.

Yours sincerely,
Matt Flaherty

Freedom of Information Unit, Crown Prosecution Service

Dear Mr Flaherty

 

FREEDOM OF INFORMATION ACT 2000 REQUEST – INTERNAL REVIEW

 

I am writing to acknowledge receipt of your emails dated 5 January.  Your
emails will be referred for an internal review and will be assigned to a
Crown Prosecution Service official who was not involved with the original
decision in relation to your FOI request (our ref: 3015).

 

We normally expect to complete internal reviews within 20 working days,
although more complex cases may take longer.  We will however endeavour to
respond to you as quickly as practicable.

 

Yours sincerely

 

Mr P Willman

Information Management Unit

Tel:  020 3357 0899

Fax: 020 3357 0229

E-mail:  [CPS request email]

 

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Dear CPS Freedom of Information Unit,

Hello. Is there any word on this internal review? I make it a bit more than 20 working days since your acknowledgement. Thank you.

Yours sincerely,
Matt Flaherty

Ahem. This is quite late for internal review by ICO guidelines. Could you please give a reason for the delay and a reasonable time estimate? Thank you.

Yours sincerely,
Matt Flaherty

Penhale Andrew, Crown Prosecution Service

1 Attachment

Please see attached

 

Andrew Penhale

Head of Division A

Central Fraud Group

Tel: +44 (0) 203 357 0493

Mob: +44 (0) 7749 646070

 

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Dear Mr Penhale,

Thank you for you letter dated 28th February 2012 in response to my request for internal review ref IR/1/12/3015. I am not satisfied with your reasons for withholding the information requested and so I will be referring the matter to the Information Commissioner.

Yours sincerely,
Matt Flaherty

cc: Crown Prosecution Service FOI Unit

Penhale Andrew, Crown Prosecution Service

1 Attachment

Please see attached amended letter. The last version had a few lines cut
off by the printer.

 

Andrew Penhale

Head of Division A

Central Fraud Group

Tel: +44 (0) 203 357 0493

Mob: +44 (0) 7749 646070

--------------------------------------------------------------------------

From: Penhale Andrew
Sent: 28 February 2012 10:47
To: '[FOI #95282 email]'
Cc: Freedom of Information Unit
Subject: FREEDOM OF INFORMATION INTERNAL REVIEW

 

Please see attached

 

Andrew Penhale

Head of Division A

Central Fraud Group

Tel: +44 (0) 203 357 0493

Mob: +44 (0) 7749 646070

 

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Freedom of Information Unit, Crown Prosecution Service

Dear Mr Flaherty,

 

I refer to your complaint to the Information Commissioners Office (ICO)
regarding your request for information under the Freedom of Information
Act (FOIA). 

 

Following discussions with the Information Commissioner’s Office we have
agreed to disclose part of the MG3 decision in the case you have referred
to, which falls outside of the FOI exemptions. It relates to a legal
judgement which was referred to by the reviewing lawyer. Please see the
following extract.

 

In   DPP v  Collins  UKHL 40 examined the question of intent in relation
to s127 Communications Act 2003 and the offence of sending a grossly
offensive message by a public telecommunications  system. Lord Bingham
gave the lead judgement and paras 10 and 11 are reproduced below-

 

10. In contrast with section 127(2)(a) and its predecessor subsections,
which require proof of an unlawful purpose and a degree of knowledge,
section 127(1)(a) provides no explicit guidance on the state of mind which
must be proved against a defendant to establish an offence against the
subsection. What, if anything, must be proved beyond an intention

-7-to sent the message in question? Mr Perry, for the Director, relying by
analogy on section 6(4) of the Public Order Act 1986, suggested that the
defendant must intend his words to be grossly offensive to those towhom
they relate, or be aware that they may be taken to be so.

11. It is pertinent to recall Lord Reid's observations in Sweet v Parsley 
AC 132, 148:"Our first duty is to consider the words of the Act: if they
show a clear intention to create an absolute offence that is an end of the
matter. But such cases are very rare. Sometimes the words of the section
which creates a particular offence make it clear that mens rea is required
in one form or another. Such cases are quite frequent. But in a very large
number of cases there is no clear indication either way. In such cases
there has for centuries been a

presumption that Parliament did not intend to make criminals of persons
who were in no way blameworthy in what they did. That means that whenever
a section is silent as to mens rea there is a presumption that, in order
to give effect to the will of Parliament, we must read in words
appropriate to require mens rea." This passage is relevant here, since
Parliament cannot have intended to criminalise the conduct of a person
using language which is, for reasons unknown to him, grossly offensive to
those to whom it relates, or which

may even be thought, however wrongly, to represent a polite or acceptable
usage. On the other hand, a culpable state of mind will ordinarily be
found where a message is couched in terms showing an intention to insult
those to whom the message relates or giving rise to the inference that a
risk of doing so must have been recognised by the sender. The same will be
true where facts known to the sender of a message about an intended
recipient render the message peculiarly offensive to that recipient, or
likely to be so, whether or not the message in fact reaches the recipient.
I would accept Mr Perry's submission.

 

You should be aware that this is simply a judgement referred to by the
reviewing lawyer as a relevant comparator. The decision to prosecute was
made on the facts of the case.

 

Yours sincerely,

 

 

J Altham

Information Management Unit

 

 

 

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Dear Freedom of Information Unit,

Thank you for the partial disclosure which I have now received from J Altham. You have indicated that in making the decision to prosecute, the reviewing lawyer made reference to Lord Bingham in DPP v Collins UKHL 40, which you have confirmed to be a case that examined intent for a charge of sending a grossly offensive message under s127 Communications Act 2003. s127 does not set out a test for mens rea, which is why Sweet v Parsley come into play. The Bingham ratio serves to overlay a mens rea requirement where the law does not explicitly provide one.

As you are aware, Ms Bentley was charged with an offence under s44 of the Serious Crime Act which carries a much higher maximum penalty and has an explicit mens rea test embedded in the statute. Taking this into consideration, it is not clear how the Bingham ratio has any significance here. I would ask that you please explain, as the information provided does not answer even a small part of the question as to how the evidential stage was made out. Thank you.

Yours sincerely,
Matt Flaherty

Freedom of Information Unit, Crown Prosecution Service

Dear Mr Flaherty

 

The letter from Andrew Penhale of 28 February 2012 makes clear that while
there is a strong public interest in favour of making CPS decision-making
transparent, in order to maintain public confidence, this can be achieved
by the CPS airing those decisions in a public arena.  The criminal courts
are just such an arena.  On the other hand, the public interest is not
served by having every charging decision available for scrutiny by all,
which might impair the ability of prosecutors to independently make
charging decisions, in accordance with the Code for Crown Prosecutors.

 

The ‘partial disclosure’ was made because that material is not sensitive
personal data and, although section 30(1)(c) applies, the public interest
in disclosure was greater than the public interest in maintaining the
exemption.  I would like to point out again that this is simply a
judgement referred to by the reviewing lawyer as a relevant comparator.
The decision to prosecute was made on the facts of the case.

 

The Freedom of Information Act (FOIA) places an obligation upon public
authorities to disclose recorded information if held, unless an exemption
applies.  The FOIA does not require a public authority to explain or
justify its thinking.

 

Regards

 

Mr P Willman

Information Management Unit

 

 

-----Original Message-----
From: Matt Flaherty [mailto:[FOI #95282 email]]
Sent: 23 July 2012 12:42
To: Freedom of Information Unit
Subject: Re: ICO Complaint ref FS50437631

 

     Dear Freedom of Information Unit,

    

     Thank you for the partial disclosure which I have now received from

     J Altham. You have indicated that in making the decision to

     prosecute, the reviewing lawyer made reference to Lord Bingham in

     DPP v Collins UKHL 40, which you have confirmed to be a case that

     examined intent for a charge of sending a grossly offensive message

     under s127 Communications Act 2003. s127 does not set out a test

     for mens rea, which is why Sweet v Parsley come into play. The

     Bingham ratio serves to overlay a mens rea requirement where the

     law does not explicitly provide one.

    

     As you are aware, Ms Bentley was charged with an offence under s44

     of the Serious Crime Act which carries a much higher maximum

     penalty and has an explicit mens rea test embedded in the statute.

     Taking this into consideration, it is not clear how the Bingham

     ratio has any significance here. I would ask that you please

     explain, as the information provided does not answer even a small

     part of the question as to how the evidential stage was made out.

     Thank you.

    

     Yours sincerely,

     Matt Flaherty

    

     -----Original Message-----

    

     Dear Mr Flaherty,

    

      

    

     I refer to your complaint to the Information Commissioners Office

     (ICO)

     regarding your request for information under the Freedom of

     Information

     Act (FOIA). 

    

      

    

     Following discussions with the Information Commissioner’s Office

     we have

     agreed to disclose part of the MG3 decision in the case you have

     referred

     to, which falls outside of the FOI exemptions. It relates to a

     legal

     judgement which was referred to by the reviewing lawyer. Please

     see the

     following extract.

    

      

    

     In   DPP v  Collins  UKHL 40 examined the question of intent in

     relation

     to s127 Communications Act 2003 and the offence of sending a

     grossly

     offensive message by a public telecommunications  system. Lord

     Bingham

     gave the lead judgement and paras 10 and 11 are reproduced below-

    

      

    

     10. In contrast with section 127(2)(a) and its predecessor

     subsections,

     which require proof of an unlawful purpose and a degree of

     knowledge,

     section 127(1)(a) provides no explicit guidance on the state of

     mind which

     must be proved against a defendant to establish an offence against

     the

     subsection. What, if anything, must be proved beyond an intention

    

     -7-to sent the message in question? Mr Perry, for the Director,

     relying by

     analogy on section 6(4) of the Public Order Act 1986, suggested

     that the

     defendant must intend his words to be grossly offensive to those

     towhom

     they relate, or be aware that they may be taken to be so.

    

     11. It is pertinent to recall Lord Reid's observations in Sweet v

     Parsley 

     AC 132, 148:"Our first duty is to consider the words of the Act:

     if they

     show a clear intention to create an absolute offence that is an

     end of the

     matter. But such cases are very rare. Sometimes the words of the

     section

     which creates a particular offence make it clear that mens rea is

     required

     in one form or another. Such cases are quite frequent. But in a

     very large

     number of cases there is no clear indication either way. In such

     cases

     there has for centuries been a

    

     presumption that Parliament did not intend to make criminals of

     persons

     who were in no way blameworthy in what they did. That means that

     whenever

     a section is silent as to mens rea there is a presumption that, in

     order

     to give effect to the will of Parliament, we must read in words

     appropriate to require mens rea." This passage is relevant here,

     since

     Parliament cannot have intended to criminalise the conduct of a

     person

     using language which is, for reasons unknown to him, grossly

     offensive to

     those to whom it relates, or which

    

     may even be thought, however wrongly, to represent a polite or

     acceptable

     usage. On the other hand, a culpable state of mind will ordinarily

     be

     found where a message is couched in terms showing an intention to

     insult

     those to whom the message relates or giving rise to the inference

     that a

     risk of doing so must have been recognised by the sender. The same

     will be

     true where facts known to the sender of a message about an

     intended

     recipient render the message peculiarly offensive to that

     recipient, or

     likely to be so, whether or not the message in fact reaches the

     recipient.

     I would accept Mr Perry's submission.

    

      

    

     You should be aware that this is simply a judgement referred to by

     the

     reviewing lawyer as a relevant comparator. The decision to

     prosecute was

     made on the facts of the case.

    

      

    

     Yours sincerely,

    

      

     

      

    

     J Altham

    

     Information Management Unit

    

      

    

      

    

      

    

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