CPS News Brief

Clarification on social media guidelines

Some of the recent media coverage of the CPS interim guidelines on cases involving communications sent via social media has wrongly implied that claiming to have been under the influence of alcohol at the time of sending a message would be a valid defence against prosecution.

This is incorrect. Rather, where a communication has been sent that is grossly offensive, indecent, obscene or false, there are a number of factors that are likely to mean that a prosecution is not in the public interest. One of these factors is whether the suspect has taken swift action to remove the communication or expressed genuine remorse.

It is this swift removal or genuine remorse that prosecutors would consider when deciding whether to prosecute, not whether the sender was under the influence of alcohol at the time of sending the communication.

It is important to note, however, that where communications amount to credible threats of violence, a targeted campaign of harassment against an individual or breach court orders, cases will be robustly prosecuted.

The guidelines are available for public consultation on the CPS website.

Seven convicted in ‘largest cannabis production case in Europe’

Seven people were convicted today at the Central Criminal Court for their involvement in the “largest case of its type in Europe” concerning the production of high-strength cannabis and the supply of equipment for production.

The second of two trials centred on the supply of specialist equipment to produce high-yield crops of skunk cannabis between January 2006 and December 2010. The people convicted will be sentenced at the Central Criminal Court on 18th January, 2013.

Jenny Hopkins, CPS London Deputy Chief Crown Prosecutor, said:

“This case was described in court as seminal and the largest of its type in Europe. This conspiracy by a family-centred criminal organisation concerned the production of skunk cannabis on a truly industrial and unprecedented scale.

"It also involved producing and supplying specialist equipment to produce high-yield crops in cannabis farms, setting up companies to conduct criminal activity, staffing the cannabis farms and harvesting the crop.

“The conspiracy was linked to dozens of cannabis farms spread across the UK and Ireland including a cannabis farm in a warehouse in Essex which had some 8,000 mature cannabis plants and is believed to be the largest single cannabis farm discovered in the UK.

"These convictions, amounting to 18 in total, follow the second of two criminal trials which involved many months of work by the prosecution team who were faced with over 200,000 pages of material and an unprecedented volume of seized exhibits and equipment. In 2010 this conspiracy could have produced up to £120million worth of cannabis.

“CPS London is committed to working with its partners to help tackle drugs production and misuse and to protect our communities from these criminal operations.”

Eighteen people have now been convicted in connection with the conspiracy.

Trial 2 – 12th December 2012

Ngat Le, Hung Van Le, Thoung Van Tu, Than Nguyen, Freddie-Ross Johnson, Gary Hadley and Shaun Byrne were convicted of conspiracy to be concerned in the production of a controlled drug between January 2006 and December 2010 [count 1].

Than Nguyen was also convicted of conspiracy to be concerned in the production of a controlled drug between September 2011 and September 2012 [count 3].

Gary Hadley was acquitted of conspiracy to produce a controlled drug between January 2006 and December 2010 [count 2].

Hoang Thanh Huynh and Richard Hilditch were acquitted of conspiracy to be concerned in the production of a controlled drug between January 2006 and December 2010.

Count 1 and 3 of the indictment alleged a conspiracy to be knowingly concerned in the production of a controlled drug by another. This conspiracy is essentially directed at the agreement to supply equipment to produce cannabis. Such equipment was distributed to shops (so-called “head” or “hydroponic ”retail shops) and/or directly to individuals concerned in the production of cannabis at so-called cannabis farms across the United Kingdom.

Count 2 alleged a conspiracy to produce cannabis. The essential difference was that the cannabis production in question was at cannabis farms set up and controlled by the named conspirators, with the resultant cannabis available for them to supply for profit.

Trial 1 – 14th February 2012

Manh Toan Dang and Hung Tuan Dang convicted of conspiracy to be concerned in the production of a controlled drug, conspiracy to produce a controlled drug, false imprisonment and damaging property.

Guilty pleas (various dates)

Van Quan Dang - conspiracy to be concerned in the production of a controlled drug, false imprisonment and damaging property.

Nhien Van Dang - conspiracy to be concerned in the production of a controlled drug and conspiracy to produce a controlled drug.

Ngoe Tien Ly - conspiracy to be concerned in the production of a controlled drug and conspiracy to produce a controlled drug.

Hai Ban Tran - conspiracy to be concerned in the production of a controlled drug and conspiracy to produce a controlled drug.

Tuan Van Le - conspiracy to be concerned in the production of a controlled drug. Andre Davis - conspiracy to produce a controlled drug.

Nhat Nguyen - conspiracy to be concerned in the production of a controlled drug.

Trong Van Le - conspiracy to be concerned in the production of a controlled drug.

Jamie Covington - conspiracy to produce a controlled drug

DPP launches public consultation on prosecutions involving social media communications

The Director of Public Prosecutions, Keir Starmer QC, has today published interim guidelines setting out the approach prosecutors should take in cases involving communications sent via social media.

The guidelines are designed to give clear advice to prosecutors and ensure a consistency of approach across the CPS to these types of cases.

Mr Starmer said:

“These interim guidelines are intended to strike the right balance between freedom of expression and the need to uphold the criminal law.

“They make a clear distinction between communications which amount to credible threats of violence, a targeted campaign of harassment against an individual or which breach court orders on the one hand, and other communications sent by social media, e.g. those that are grossly offensive, on the other.

“The first group will be prosecuted robustly whereas the second group will only be prosecuted if they cross a high threshold; a prosecution is unlikely to be in the public interest if the communication is swiftly removed, blocked, not intended for a wide audience or not obviously beyond what could conceivably be tolerable or acceptable in a diverse society which upholds and respects freedom of expression.

“The interim guidelines thus protect the individual from threats or targeted harassment while protecting the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some and painful to those subjected to it.”

ACPO lead on communications, Chief Constable Andy Trotter said:

“This interim guidance sets out clear advice to police forces in England and Wales on handling complaints from the public relating to social media. It takes a common sense approach and will help support consistency from prosecutors and police. We welcome the opportunity for early consultation to take place between CPS and police before any action is taken in these cases.”

Chief Executive of Victim Support Javed Khan said:

“Victims tell us that sustained and vindictive targeting on social media can leave long lasting emotional and psychological scars, so we warmly welcome clarification on how prosecutors will deal with online threats or harassment.

“The distinction between communications which constitute a credible threat and those which may merely cause offence is sorely needed.

“In particular we welcome the guideline which makes a prosecution more likely if a victim is specifically targeted and this has a significant impact on them.

“We will watch how the interim guidelines are used with interest and will respond to them in detail during the consultation period.”

The interim guidelines do not change the law, but set out the approach prosecutors should follow when considering cases relating to communications sent via social media. The guidelines come into immediate effect, and are subject to a three-month public consultation which starts today.

Mr Starmer added:

“We want the interim guidelines to be as fully informed as possible, which is why we held a series of roundtable discussions and meetings with Twitter, Facebook, Liberty and other stakeholders, police and regulators, victim groups, academics, journalists and bloggers, lawyers and sports organisations ahead of drafting them. I would now encourage everyone with an interest in this matter to give us their views by responding to the public consultation.”

Initial assessment

As part of their initial assessment, prosecutors are now required to distinguish between:

1) Communications which may constitute credible threats of violence

2) Communications which may constitute harassment or stalking

3) Communications which may amount to a breach of a court order

4) Communications which do not fall into any of the above categories and fall to be considered separately i.e. those which may be considered grossly offensive, indecent, obscene or false.

Those offences falling within the first three categories should, in general, be prosecuted robustly under the relevant legislation, for example the Protection from Harassment Act (1997), where the test set out in the Code for Crown Prosecutors is satisfied.

Cases which fall within the final category will be subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest.

The high threshold

Section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 engage Article 10 of the European Convention of Human Rights, therefore prosecutors are reminded that they must be interpreted consistently with the free speech principles in Article 10.

Prosecutors are also reminded that what is prohibited under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 is the sending of a communication that is grossly offensive. They should only proceed with cases involving such an offence where they are satisfied that the communication in question is more than:

• Offensive, shocking or disturbing; or

• Satirical, iconoclastic or rude comment; or

• The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.

The public interest

In line with the free speech principles in Article 10, no prosecution should be brought unless it can be shown on its own facts and merits to be both necessary and proportionate.

A prosecution is unlikely to be both necessary and proportionate where:

a) The suspect has swiftly taken action to remove the communication or expressed genuine remorse;

b) Swift and effective action has been taken by others, for example service providers, to remove the communication in question or otherwise block access to it;

c) The communication was not intended for a wide audience, nor was that the obvious consequence of sending the communication; particularly where the intended audience did not include the victim or target of the communication in question; or

d) The content of the communication did not obviously go beyond what could conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression.

The age and maturity of suspect should be given significant weight, particularly if they are under the age of 18. Children may not appreciate the potential harm and seriousness of their communications and as such prosecutions of children are rarely likely to be in the public interest.

The public consultation is available on the CPS website and closes on 13 March 2013.

Two teenage gang members convicted of the murder of a 17-year-old boy

Two teenage gang members have been convicted of the murder of a 17-year-old boy who had been caught up in a “poisonous” gang feud.

Nelson Idiabeta and Nathaniel Okusanya were found guilty at the Central Criminal Court of the murder of Kwame Ofosu-Asare who was stabbed to death on a housing estate in Brixton on 2nd March 2012.

Jenny Hopkins, CPS London Deputy Chief Crown Prosecutor, said:

“Kwame Ofosu-Asare’s senseless murder was part of a poisonous feud between two gangs in south London in which he had no part.

“Kwame was not a member of any gang yet he found himself in the wrong place at the wrong time with tragic consequences. Two gang members – Idiabeta and Okusanya - sought revenge in a rival gang’s territory, chased Kwame and his friend down an alley and stabbed him several times in the back.

“CPS London is committed to working with its partners in the fight against gang and knife crime and this conviction should be seen as a clear signal that these acts of violence which destroy young lives and families will be robustly prosecuted wherever we can.

“We hope that this conviction will bring some justice for Kwame’s family and our thoughts are with them at this time.”