Hammers, Nails, and Cursing Go International

February 16, 2017 (Fault Lines) – In yet another edition of the ongoing criminal law soap opera, Hammer and Nails, this case may be the dumbest one yet. If there’s any saving grace, it’s that it comes to us from across the Pond. The bobbies in the Merry Olde English village of Ledbury apparently don’t have much to do.

The case went like this: a bloke named Karl Smalley owed a different bloke named Nigel Jones £10,000. Smalley, however, had declared bankruptcy and was sent to the workhouse to beg for gruel only able to repay him £2,000. Nigel mentioned this to Aga Czachowska, an employee of his. Then things got interesting:

[Czachowska] claimed she had taken responsibility for collecting the debt. [Prosecutor Christopher] Lester said: “Mr. Smalley was very distressed by that, saying he was bankrupt and there was nothing he could do.” The defendant also telephoned again, speaking this time to the complainant’s wife who told her they had nothing and were still dealing with the bankruptcy. Mr. Lester added: “The defendant then phoned and left an answering machine message on the phone. It effectively said Mr. Smalley was allowing his family to deal with these things for him.” … [Czachowska] had left an offensive answering phone message in which she described the complainant as ‘a pussy’.

Mr. Lester has a very English talent for understatement. Proving Czachowska wrong, Smalley went to the police, who recorded the message as evidence. Czachowska was charged under England’s Malicious Communications Act, which states:

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—[1] (1)Any person who sends to another person— (a) A letter, electronic communication or article of any description which conveys— (i) a message which is indecent or grossly offensive; … is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

“Indecent” and “grossly offensive” are not further defined, meaning they’re defined more or less the same way Justice Stewart defined “hard core pornography” in Jacobellis v. Ohio: the prosecutor knows it when he sees it.

Instead of asserting the classic and often successful “Locker Room Talk” defense, Czachowska took a plea. The judge, Daniel Pearce-Higgins, was rather incredulous about it:

“That’s an offence is it? Good heavens. “It’s fairly standard behaviour in life. I’m concerned criminal law is properly used, not to stop people swearing at each other. To call someone a pussy is impolite. It’s not an offence. It’s unpleasant but not a criminal act. “If that’s the case there’s an awful lot of criminals about.” … The judge gave her credit for her early guilty plea and said it was ‘at the bottom end of criminality’, saying be believed there was a ‘cultural difference’ between the way debts were handled here and in the defendant’s native Poland. He gave her a conditional discharge for two years. He declined to grant a restraining order against the defendant in respect of Mr. and Mrs. Smalley and made no order for costs.

Even though he wears a wig (not that there’s anything wrong with that), Mr. Justice Pearce-Higgins has it exactly right. Think about all the things that happened while this case was going on:

The police go to Smalleys’ house, take a report, and record the message. The police go back to the station, write up a report, and submit it to the prosecutor. The prosecutor reviews the report, and decides that prosecuting Czachowska is a good use of his, the court’s, the Smalleys’ Czachowska’s and her lawyer’s time. All parties come to Court for however many court appearances it takes. Czachowska gets what Americans would call “unsupervised probation,” but ends up with a criminal record.

As the saying goes, “If the only tool you have is a hammer, it is tempting to treat every problem as a nail.” They must be running out of nails in Ledbury, England if the Crown has the time to turn its attention to the likes of fresh-mouthed Aga Czachowska. But she still got hammered.

[1] This preamble has nothing to do with the substance of law, but it sounds really damn impressive, even though “the Queen’s most Excellent Majesty” makes it sound like the law was written by the brilliant duo, Bill and Ted.

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