By now most people will be aware of the “Twitter Joke Trial” which involved the conviction of Paul Chambers (@pauljchambers) for sending a message of a menacing character via a public electronic communications network contrary to s.127(1)(a) of the Communications Act 2003. If you’re not aware of the facts they are set out succinctly in paragraphs 5 – 19 of the High Court’s judgement (link below).
This morning, at the Royal Courts of Justice in London, the Lord Chief Justice of England and Wales delivered the judgment of the Court in an appeal against conviction by Paul Chambers. This was the third time that Paul Chambers had sat waiting for an appeal judgment. The first appeal to the Crown Court was rejected and the second appeal, to the High Court, had to be reheard after the two judges failed to agree.
There has been a lot of comment and discussion on this case. Some of those who supported the conviction argued that it was necessary in light of the threat of terrorism that such “jokes” are taken seriously by the justice system so as to ensure public safety. Those who did not support the conviction were concerned about; inter alia, the affect on freedom of speech.
John Copper QC, leading Counsel for Paul Chambers, put forth a very convincing legal argument on the meaning of the word “menacing”. To do so they looked to another area of English law, Blackmail, which included reference to “menace”. Robert Smith QC, for the Director of Public Prosecutions, “submitted that no more, and no less, was needed than the application of ordinary language to the context in which any particular message was expressed and to all the relevant circumstances.” (Para 29) However, Mr Cooper argued “that for a message to be of a menacing character it must, on an objective assessment, contain a threat of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive.” (Para 29)
The High Court took the view that before being able to conclude that the message was of a criminal nature on the basis that it was of a menacing character, “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” (para 31). Paul Chambers had sent his message at a time when the public was concerned about terrorism and the High Court recognised that the Crown Court was understandably concerned about this. However, the Court’s judgment states at paragraph 31:
In any event, the more one reflects on it, the clearer it becomes that this message did not represent a terrorist threat, or indeed any other form of threat.
The High Court pointed to the language and punctuation of Paul Chambers’ tweet as inconstant with the view that the writer had intended that the tweet to be or be taken as a serious warning.
The High Court also said (at para 32):
In our view, the Crown Court read too much into the observation of Lord Bingham in his judgment in the House of Lords that the criminality of the sender cannot depend upon whether a message is received by A or by A’s reaction. Lord Bingham was saying no more than that a message proved by an objective assessment, applying the standards of an open and multi-racial society to be of a prescribed kind, does not cease to be so just because it was not received or because the person who received it was not, in the context of the present prosecution, menaced. The effect of the message on those who read it is not excluded from the consideration.
The High Court looked at the way in which the airport discovered the tweet, the fact that it was treated as a “non-credible” threat by the airport authorities. They also considered the fact that the airport police took no action and that the speed of the process from discovery to Paul Chambers’ arrest was a sign of there being no real urgency. No evidence had been put before the Court that suggested even the most minimal upgrade to security following discovery of the tweet. The Crown Court, in considering the appeal, was wrong not to consider these factors as part of its decision.
The High Court also noted (para 33):
the fact that those responsible for security at the airport decided to report it at all, which was treated as a significant feature, rather overlooked that this represented compliance with their duties rather than their alarmed response to the message
In essence, the staff at the airport were doing what they were obliged to do in order to comply with company procedures. They had no real discretion as to whether the matter should have been taken any further and so to place such a heavy reliance upon their reporting of the matter to the police was incorrect.
The High Court found that the reliance upon Paul Chambers’ response to a question in interview as to how some people might have reacted to his tweet as misguided. The High Court said that this failed to recognise “the care needed to approach such a widely phrased question in context.” (para 33) Some people, the High Court said, “included those who might lack reasonable fortitude.” (para 33)
The High Court concluded “that, on an objective assessment, the decision of the Crown Court that this “tweet” constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed.” (para 34)
In short, when seeking to apply the menacing character element of s.127(1)(a) of the Communications Act 2003 it is necessary not simply to look to the dictionary definition of a menace, but to consider whether the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive by the message.
There is no denying that the tweet in question was not the most sensible thing to put out into the public domain. There was, and remains today, a public sensitivity around terrorism and security of the United Kingdom. However, I am sure we have all said things along the lines of “I’m going to kill x” or “I’m going to blow up y”. We have never really meant it and it will have normally been an expression of our frustration over a particular situation. The matter, when taken out of context can look a lot worse than it actually is. In this case, the context was important in understanding the meaning of the message.
The criminal law ought not to be covering situations unnecessarily and the approach taken by the court to this case previously was far too wide in nature. This was demonstrated, I thought, well by reference to Shakespeare’s “kill all the lawyers” line in Henry VI by John Cooper QC in his submissions to the Court on behalf of Paul Chambers.
This is a sensible decision that restricts the scope of s.127(1)(a) of the Communications Act 2003 to protect those who are making jokes or using colloquial language to express their frustration when using Twitter, Facebook and any other form of internet based social media that will come in the future.
The CPS has come in for a lot of criticism over their decision to prosecute Paul Chambers. For the most part, it’s probably unfair. They took a view that there was sufficient evidence for a reasonable prospect of conviction (based on a wrong interpretation of the law) and thought there was a public interest in prosecuting. One can understand why though given the terrorism threat in the UK. Misguided bomb hoaxes against an airport should be taken seriously by the police and prosecuting authorities. It was clear in this case though that this was not a bomb hoax and perhaps the CPS developed a blinkered view of the case and couldn’t get past thinking about terrorism.
Justice was, eventually, done though and the High Court has given a sensible decision that, one would think, the vast majority of right minded, sensible and level headed people would consider is correct.