The conviction of Paul Chambers for a joke made on Twitter has inspired satire, celebrity outrage and simple incomprehension. It has also led to two appeals, the second of which begins in Court 74 at the High Court in London today before Lord Justice Gross and Mr Justice Irwin. This appeal, ‘by way of case stated’ (on questions of law alone) examines the scope of the legislation under which Chambers was convicted, and brings into focus some of the broader issues surrounding his prosecution, including the regulation of social media.
Mr Chambers was arrested on January 10 2010 when, after heavy snowfall had affected transport across the country and threatened his plans to fly to Belfast to meet a fellow Twitter user, he posted a tweet (pictured above) which read
“Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!”
The Guardian has Mr Chambers’s own account of the story behind his post, and the reaction to it: four police officers came to his workplace, his home was searched, his personal computer and phone were confiscated; he later lost his job as a financial manager, and was unable to complete his accountancy training. The original arrest was for a suspected bomb hoax under the Criminal Law Act 1977, but he was subsequently charged by the Crown Prosecution Service under the Communications Act 2003, s127 (‘the 2003 Act’), which states that a person is guilty of an offence if he
“sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character;”
More detail on the path which the offending tweet took in its journey to the attention of the police can be found on the Jack of Kent blog, whose author, solicitor and journalist David Allen Green, has been instrumental in drawing attention to the case and organising the team behind the appeals. Given the number of times a decision was taken to move forward with the prosecution of what was clearly a frivolous, if misguided, joke made for a small group of people, and which the airport’s own manager regarded as “non-credible”, it may easily never have resulted in police interest or proceedings of any kind.
The 2003 Act under which Mr Chambers was prosecuted was intended, amongst other things, to set out the functions of OFCOM, the regulator for UK communications businesses. The specific offence with which he was charged is buried deep within it, and is required so rarely as a basis for proceedings that there are no cases on its scope or interpretation.
The only available guidance derives from DPP v Collins ( UKHL 40), an appeal from the Divisional Court. The conviction in Collins related to a message left on an answering machine that was “grossly offensive” but Sedley LJ in the Divisional Court considered, obiter, the definition of “menacing”:
“A menacing message, fairly plainly, is a message which conveys a threat – in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen. Here the intended or likely effect on the recipient must ordinarily be a central factor in deciding whether the charge is made out.”
The Judge also stated that “Here, as elsewhere, context is everything” and this focus on context and circumstances was approved by Lord Bingham in the House of Lords.
The original conviction
Mr Chambers appeared before a District Judge at Doncaster Magistrates’ Court and was convicted of the offence under the 2003 Act. He received a fine of £384 and costs of £600 were awarded against him.
The appeal to the Crown Court
With support of all kinds gathering behind him, Mr Chambers appealed to the Crown Court – the first and most obvious route of appeal from a Magistrates’ Court conviction. There were three grounds of appeal at the Crown Court:
“a. the message was not menacing within the meaning of the statute;
b. the Appellant lacked the necessary mens rea; and
c. the message was not sent by a public electronic communications network.”
At the close of the Prosecution’s case at the Crown Court, heard by HHJ Davies, Mr Chambers’s counsel made a submission of no case to answer. The Crown Court ruled that there was a case to answer. The Court held that, as to actus reus, the question of whether the tweet was of menacing character was a question of fact for the court, and it was satisfied that the message was “menacing in its content and obviously so”. The Court held that the s127 offence does not require the message to be seen (and no evidence of anyone apart from the airport security manager having seen it was adduced). It also rejected the question of Article 10 rights arising as the right is qualified to the extent that is “necessary … in the interests of national security, territorial integrity or public safety”.
As to mens rea, the Court held that there was the necessary evidence of intention: the message was published in Mr Chambers’s public Twitter timeline, making it accessible to the public in general and potential passengers in particular. The required mens rea was held to be that the person sending the message either intended the message to be menacing, or was aware that it might be taken as being so. In light of Mr Chambers’s age, education and employment history, and of the climate surrounding potential terrorist incidents, the Court held that he must have been aware of the potentially sinister interpretation of his tweet.
The appeal by way of case stated
Following the dismissal of an appeal at the Crown Court, a further appeal by way of case stated lies to the Administrative Court on points of law, which is the nature of the hearing on February 8. This particular mechanism is based around a statement of facts which outline the point of law on which the opinion of the Administrative Court is required. The questions posed, found at the end of the statement of case on Jack of Kent, are:
“1(a) In order to prove that a message is of a “menacing character” within the meaning of Section 127(1)(a) (read according to conventional canons of construction or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998), is the Prosecution required to prove that the person sending the message intended to create a fear in or through the recipient (Sedley L.J., in Collins, supra, having defined a menacing message as “a message that conveys a threat … which seeks to create a fear in or through the recipient that something unpleasant is likely to happen”) or were we correct to conclude that the question of whether a message is “of a menacing character” is an objective question of fact for the Court to determine applying the standards of an open and just society and taking account of the words, context and all relevant circumstances?
1(b) Is the actus reus of the offence (Lord Bingham in Collins supra), “the sending of a message of the proscribed character by the defined means”, as we found, or does the actus reus include a requirement that the person sending the message intended the message to “create a fear in or through the recipient”?
(2) What is the mens rea for an offence of sending a message of a menacing character contrary to Section 127(1)(a)? In particular:
(a) Is Section 127(1)(a) (read according to conventional canons of construction or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998) a crime of specific intent?
(b) Is the Prosecution required to prove as part of the mens rea of the offence that the person sending the message intended to put another person in fear?
(c) If the answer to (b) is no, is it sufficient for the Prosecution to prove that the person sending the message realised that his message may or might be taken as menacing, or must the prosecution prove that he realised that it would be taken as menacing by a person of reasonable firmness aware of all the relevant circumstances?
(3) Did the Court act lawfully (within the meaning of Section 6 of the Human Rights Act 1998) in convicting and sentencing the Appellant as it did? In particular:
(a) Did the Appellant’s act in posting the message engage his right to freedom of expression under Article 10(1) ECHR?
(b) If so, did his conviction and sentence amount to an “interference” with the exercise of that right?
(c) If so, was that interference necessary in a democratic society for one of the reasons listed in Article 10(2)?
(4) In all the circumstances, was the Court correct to conclude that the message sent by the Appellant crossed the threshold of gravity necessary to constitute a message “of a menacing character” so as to amount to a criminal offence within the meaning of Section 127(1)(a) and (3) and was the Court correct to convict the Appellant on the evidence and sentence him as it did?”
The questions about the scope of s127 of the 2003 Act, the nature of the actus reus and mens rea of the offence it describes, and whether they must include intention for a conviction under it, are significant both for Mr Chambers, and for other social media users. There has never been any indication that he intended to create fear or put another person in fear, and if s127 is a crime of specific intent, in other words if liability depends on the Defendant having a clear purpose in mind, then his particular Tweet, and any like it, will not be criminalised. A requirement of specific intent will limit future use of the statute, drafted in an era before social media, for the prosecution of otherwise harmless online content which is unfortunately misinterpreted.
The broader issues at stake in the trial, and perhaps partly why Mr Chambers has attracted such extensive legal and other support, are outlined by point 3 above. The questions of whether an individual’s Article 10 rights are engaged when posting a message on Twitter, of whether to convict him for doing so interferes with his rights, and of whether such an interference is “necessary in a democratic society” touch on the nature of Twitter, and of the legal status of its users.
Twitter is a distinctive form of social media because, in contrast to the ‘walled garden’ of Facebook, it is public – it is a form of online publishing as well as of staying in touch with friends or people of interest, and that is one of its great strengths. The user’s timeline, although generally seen only by his followers or those searching specifically for him online, is openly available, and this makes Twitter valuable both as part of the real time web, which is often said to be the future of the internet, and as a sort of public record or archive.
This public aspect of the service was what led to the discovery of Mr Chambers’s tweet and his prosecution, but it is also the reason why it should attract the protection which English and European law accords to those exercising their right to freedom of expression. In a satirical piece for the Guardian, Charlie Brooker sought to highlight the absurdity of Mr Chambers’s prosecution with a piece headlined “The words you read next will be your last… because I’m going to strangle every single one of you”. Both Mr Brooker and Mr Chambers were publishing their views online, both were intending to be funny, but Mr Chambers was criminally liable for his publication because he did not have the protective carapace of a media business to shield him. A decision that the conviction was an unnecessary interference with his Article 10 rights would make clear that everyone who publishes online is legitimately exercising those rights when they do so.
Gervase de Wilde is a former journalist at the Daily Telegraph and a student barrister.
Today’s hearing can be followed on Twitter – #twitterjoketrial