The hearing of the appeal of Paul Chambers at the High Court takes place today. I am solicitor for Paul, and for various reasons I am limited in what I can say here and now about the case. However, for the benefit of those following the case, I set out below part of the story and some information about the applicable law.
What was tweeted
On 6 January 2010, Paul Chambers was at home watching the news. He saw some bad news, and he tweeted his exasperation to his then 600 or so Twitter followers. The unhappy effect of the news was that he may not be able to see a girl he had met and who had invited him over to Northern Ireland. His followers would know all this and would see the tweet in that context. His tweet said:
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!!
It was not the funniest joke; but it was never intended to be. It was a throwaway remark, one of millions now tweeted every day.
And it was a joke, or at least something said in jest. This is self-evident. The "Crap!" and the two exclamation marks at the end indicate it is couched in non-serious terms. The text contains an impossible demand.
The clear meaning of the tweet is that Paul wanted the airport to stay open. The last thing he wanted was for the airport to be menaced or otherwise inconvenienced. He did not include the airport's Twitter address, which he could have done. He had no idea at all that the tweet would be seen by the airport.
Here context is also important. English lawyers often say "context is everything". However, context is not anything. Before one determines the context of a remark, one needs to give anxious scrutiny to the text. And close attention to this particular text shows the correct context is provided by informal communications on social media and not terrorism. Paul's tweet not intended to be taken seriously, as both the text and its true context would show.
Paul did not give the tweet another thought for seven days.
A visit from the police
On 11 January 2010, an off-duty employee of Robin Hood airport was entering search terms in to Twitter. He searched for "Robin Hood Airport". He forwarded the search result to the airport security manager, the person trained and competent to assess supposed threats. He instantly graded it as non-credible; but process meant the "threat" was passed to the airport police, who did nothing. After two days they passed it on to South Yorkshire police.
On 13 January 2010 a team of uniformed police officers go to Paul's workplace and arrest him for making a "bomb hoax". He is marched off in front of his colleagues (and subsequently loses his job). He is questioned for a number of hours and patiently explains that it was a joke. The police ultimately agree, and say in their record system on 10 February 2010:
Male detained re making threat to Doncaster Robin Hood Airport. The male in question has been bailed and his phone/computer has been seized – there is no evidence at this stage to suggest that this is anything other than a foolish comment posted on Twitter as a joke for only his close friends to see.
But again, process being process, the decision to charge is given to the Crown Prosecution Service. The CPS realise that the bomb hoax offence has not been made out. However, instead of dropping the case, the CPS decide to prosecute Paul under the then obscure section 127 of the Communications Act 2003 for sending a message of "a menacing character". This is not the time or place for me to comment on that charging decision.
In due course Paul was convicted by Doncaster Magistrates' Court and his conviction was upheld on appeal at Doncaster Crown Court.
What section 127(1) says
The Communications 2003 Act provides at section 127(1) that:
A person is guilty of an offence if he—
(a) 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; or
(b) causes any such message or matter to be so sent.
This provision is derived from section 43(1) of the Telecommunications Act 1984:
A person who—
(a) sends, by means of a public telecommunication system, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) sends by those means, for the purpose of causing annoyance, inconvenience or needless anxiety to another, a message that he knows to be false or persistently makes use for that purpose of a public telecommunication system,
shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both.
And that provision was ultimately based on section 10(2)(a) of the Post Office (Amendment) Act 1935:
If any person-
(a) sends any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character; or
(b) sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience, or needless anxiety to any other person; or
(c) persistently makes telephone calls without reasonable cause and for any such purposes as aforesaid;
he shall be liable upon summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment.
What happened with the 2003 Act is that what was a telecommunications offence was broadened to include all messages which go over a "a public electronic communications network", which effectively means the internet. There appears to have been no parliamentary debate on this move, and what seems to have happened is the phrase was taken over from the EU Framework Directive for electronic communication networks and services which the 2003 Act was intended (in part) to implement.
Parliament seems to have had enacted a wide ranging offence which could apply to most internet communications without any deliberation.
What is a message of "a menacing character"?
There is no direct case law for what "of a menacing character" means. The old telecommunications offence appears not have interpreted by the English courts.
Paul's legal team tomorrow will be submitting that "of a menacing character" should be interpreted in accordance with the established law relating to blackmail, which deals with unwarranted demands with menaces. Strip out the "unwarranted demands" and there is (we will say) a serviceable test for what is of a menacing character. It will be submitted that the correct test of the offence should be as follows:
Actus reus (the act which needs to be proved)
- a person sends a message or other matter;
- by means of a public electronic communications network;
- which is 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; and
Mens rea (the intention which needs to be proved)
- the person sending the message or other matter intends to threaten the person to whom the message or other matter is intended to or is likely to be conveyed.
The appeal by case stated
The appeal tomorrow will be on points of law only. Paul has appealed already to the Crown Court, which upheld his conviction. A previous hearing at the High Court was inconclusive. Tomorrow will be Paul's seventh day in court on this case, which has lasted two-and-a-half years.
The High Court - sitting as a panel of three headed by the Lord Chief Justice - will have to work out what is the correct law which should apply to the Crown Court's findings of fact to this case. These findings were:
We are satisfied, on the evidence, that the message in question is menacing in its content and obviously so. It is difficult to imagine anything more clear. It fits the Oxford English Dictionary definition and the observations of Lord Justice Sedley, to which we have earlier referred. It is, in our judgement, menacing per se.
Although the offence does not require the message to be seen, we take the view that an ordinary person seeing this, and we have no evidence that anyone did, would see it in that way and be alarmed. The airport staff did see it and were sufficiently concerned to report it. As the authorities make it clear, there is no need for anyone to see the message and in any event, different people can have different views.
The required mens rea for this offence is that the person sending the message must have intended the message to be menacing, or be aware that it might be taken to be so.
This Appellant was 26, well-educated and in a responsible job and there is no evidence that he is anything other than of sound mind. We, of course, bear in mind his evidence and the importance of his good character, acknowledging, of course, that good character cannot provide a defence.
We found the Appellant to be an unimpressive witness. We find it impossible to accept that anyone living in this country, in the current climate of terrorist threats, particularly at airports, would not be aware of the consequences of his actions in making such a statement.
Furthermore, we are satisfied that he, as an experienced user of Twitter, made a deliberate decision to post this message on the public timeline of Twitter, on the very day he sent seemingly related private messages to Crazy Colours and within two hours of posting them. We do not accept his evidence that he was unaware of television news and newspaper reports at the material time. His account in interview, as we have observed earlier, was self-serving, although we note that at page 2 of his interview, he uses the expression, when dealing with his Twitter experiences, "not to this serious of magnitude".
Accordingly, we are satisfied that the Respondent has proved the necessary mens rea and that the Appellant was, at the very least, aware that his message was of a menacing character.
The result of the appeal is not likely to be given tomorrow. However, when it is handed down the judgment may be significant for how the criminal law applies to social media.
David Allen Green is legal correspondent of the New Statesman