The Twitter Joke Trial carries on

Paul Chambers is going to the High Court.

Paul Chambers has announced that he is seeking to go to the High Court to challenge his conviction under section 127 of the Communications Act 2003.

He has instructed me to put the challenge together and I have, in turn, instructed Ben Emmerson QC, the leading human rights and criminal law barrister. The barristers who fought the Crown Court appeal -- Stephen Ferguson and Sarah Przybylska -- continue to be involved. There has been legal help from a number of other firms and individuals. This is a case which has attracted a great deal of support and offers of practical assistance.

Why? After all, it was just a £350 fine (although now with prosecution costs, Paul is being asked to pay £2,600). And there has been no custodial sentence.

But the case continues to cause concern about and widespread ridicule of the English criminal justice system. Writers as accomplished as Graham Linehan, Charlie Brooker, and Nick Cohen have brilliantly exposed the misconceived and illiberal nature of this prosecution and of the upheld conviction. And, although neither Paul nor I have encouraged the "#IAmSpartacus" movement (I personally prefer the use of the Betjeman line about dropping bombs on Slough), it is perhaps significant that Paul's original tweet or variations of it seems now to have been tweeted over 18,000 times. However, it appears that only Paul will incur criminal liability for the words in question.

Paul's original tweet was the hyperbolic statement of exasperation of someone discovering that he may not get to see a girl he fancied. It was not intended to be menacing, and indeed it was not menacing.

Look at the tweet carefully: "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!". From the very first word -- an expletive followed by an exclamation mark -- it is clear to any reader that it was not serious. The proposition which follows -- an emphatic and sweary call for an airport to be opened rather than for it to be closed -- is simply nonsensical as a threat on its own terms. This is not how a terrorist, a hoaxer, or anyone with any menacing intent, would actually make their wrongful statements

At the trial and the appeal, it became clear that no one did find it menacing.

The airport security manager who found it on a random search of Twitter did not know whether it was a jest or not; his manager graded it as having no credibility, but was process-bound to forward it to the airport police; the police saw it as so menacing that they waited three days before acting on it and then, after interviewing Paul, simply said there was no evidence that it was any more than a joke intended just for his Twitter followers; however, the police passed any charging decision on to the Crown Prosecution Service, who quickly realised there was insufficient evidence of intent for the "bomb hoax" offence under the 1977 Criminal Law Act.

So the CPS used the then obscure section 127 of the Communications Act, for which there are no recorded cases other than in respect of nuisance telephone calls, and baldly asserted that the provision now covered communications on social media as well. The CPS turned up to court and told the magistrate and the defence that not only did section 127 cover social media, but that it was also an offence of "strict liability" which required no evidence of intent. (The CPS now accept that the offence does require proof of intent, but one wonders if the prosecution would have proceeded had they realised that at the time.)

The Magistrates' and Crown Courts then found Paul's tweet to be menacing and that he intended to send a menacing communication. They also found that section 127 covers messages sent on a social media platform as much as it would cover nuisance telephone calls. The challenge to be brought by Paul and his legal team at the High Court will seek to establish whether the criminal courts applied the correct legal tests for whether the message was menacing and whether it was sent with any menacing intent; the challenge will also seek to clarify the extent (if any) to which section 127 applies to messages created in and published on social media platforms. It has the makings of a landmark judgment regardless of its outcome: like the Lady Chatterley or Oz trials of previous generations, this case perhaps forces the question as to whether the law has kept up with wider social and cultural changes.

It is brave of Paul to take this case forward. If he loses he faces the upholding of a criminal conviction and the continuance of a criminal record. He is also exposed, if he loses, to the legal costs of the other side. There has been a great deal of generous support for Paul. In part this is because he is clearly a decent bloke placed in an unfair and adverse predicament for a mere exasperated tweet which not a single person whatsoever has yet found menacing.

But there is also a wider battle. English criminal law and practice now appears to have an unfortunate and casual attitude to imposing criminal liability and even using the power of arrest for simple speech acts. As social media is used more and more for everyday communication, this inappropriate use of criminality and of the coercive force of the police has to be somehow checked and the value of routine free expression asserted and endorsed.

To his and other people's surprise, Paul has become the everyman of the social media generation. For there, but for the grace of a god, go almost all of us.


David Allen Green is legal correspondent of the New Statesman and was shortlisted for the George Orwell prize for blogging in 2010. He is also head of the media law practice at Preiskel & Co, who are acting on a cost-only basis for Paul Chambers in his High Court challenge.


David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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John McDonnell interview: "We’re going to destroy Osborne’s credibility"

The shadow chancellor on the Spending Review, Jeremy Corbyn's leadership and why trade unions will have to break the law. 

When I interviewed John McDonnell in March, before the general election, he predicted that Labour would be the largest party and confessed to a “sneaking feeling that we could win a small majority – because I think the Tory vote is really soft”. As the long-standing chair of the Socialist Campaign Group, McDonnell anticipated leading the resistance inside Labour to any spending cuts made by Ed Miliband. Eight months later, he is indeed campaigning against austerity – but as shadow chancellor against a Conservative majority government.

I meet McDonnell in his new Westminster office in Norman Shaw South, a short walk down the corridor from that of his close friend and greatest ally, Jeremy Corbyn. The day before George Osborne delivers his Spending Review and Autumn Statement, his desk is cluttered with economic papers in preparation for his response.

“The message we’re trying to get across is that this concept of the Tories’ having a ‘long-term economic plan’ is an absolute myth and they’re in chaos, really in chaos on many fronts,” he tells me. McDonnell points to the revolt against cuts to tax credits and policing, and the social care crisis, as evidence that Osborne’s programme is unravelling. On health, he says: “He’s trying to dig out money as best as he can for the NHS, he’s announced the frontloading of some of it, but that simply covers the deficits that there are. Behind that, he’s looking for £22bn of savings, so this winter the NHS is going to be in crisis again.”

Asked what Labour’s equivalent is to the Tories’ undeniably effective “long-term economic plan” message, he said: “I don’t think we’re going to get into one-liners in that way. We’ll be more sophisticated in the way that we communicate. We’re going to have an intelligent and a mature economic debate. If I hear again that they’re going to ‘fix the roof while the sun shines’ I will throw up. It’s nauseating, isn’t it? It reduces debate, intellectual debate, economic debate, to the lowest level of a slogan. That’s why we’re in the mess we are.”

Having abandoned his original support for the Chancellor’s fiscal charter, which mandated a budget surplus by 2020, McDonnell makes an unashamed case for borrowing to invest. “The biggest failure of the last five years under Osborne is the failure to invest,” he says. “Borrowing at the moment is at its cheapest level, but in addition to that I’m not even sure we’ll need to borrow great amounts, because we can get more efficient spending in terms of government spending. If we can address the tax cuts that have gone ahead, particularly around corporation tax, that will give us the resources to actually start paying again in terms of investment.”

He promises a “line-by-line budget review” when I ask whether there are any areas in which he believes spending should be reduced. “My background is hard-nosed bureaucrat . . . we’ll be looking at where we can shift expenditure into more productive areas.”

From 1982 until 1985, John McDonnell, who is 64, was chair of finance at the Greater London Council under Ken Livingstone. After vowing to defy the Thatcher government’s rate-capping policy he was sacked by Livingstone, who accused him of manipulating figures for political purposes. “We’re going to look like the biggest fucking liars since Goebbels,” the future mayor of London told him. McDonnell, who later described Livingstone’s account as “complete fiction”, has since resolved his differences with the man now co-chairing Labour’s defence review.

After his election as the MP for Hayes and Harlington in 1997, McDonnell achieved renown as one of New Labour’s most vociferous opponents, rebelling with a frequency rivalled only by Corbyn. His appointment as shadow chancellor was the most divisive of the Labour leader’s reshuffle. “People like Jeremy even if they don’t agree with him. People don’t like John,” one MP told me at the time. Mindful of this, McDonnell has sought to transform his image. He has apologised for his past praise of the IRA and for joking about assassinating Margaret Thatcher, rebranding himself as a “boring bank manager”. But there are moments when his more radical side surfaces.

He told me that he supports workers breaking the law if the trade union bill, which would limit the right to strike, is passed. “It’s inevitable, I think it’s inevitable. If the bill is introduced in its existing form and is used against any particular trade unionist or trade union, I think it’s inevitable that people will resist. We established our rights by campaigning against unjust laws and taking the risk if necessary. I think that’s inevitable and I’ll support them.”

“Chaos” might be how McDonnell describes Osborne’s position but the same term is now daily applied to Labour. The party is riven over air strikes in Syria and the renewal of Trident and MPs are ever more scornful of Corbyn’s leadership.

While Corbyn has so far refused to offer Labour MPs a free vote on Syria, McDonnell says that he favours one and would oppose military action. “My position on wars has always been that it’s a moral issue and therefore I veer towards free votes . . . We’re waiting for Cameron’s statement; we’ll analyse that, there’ll be a discussion in shadow cabinet and in the PLP [Parliamentary Labour Party] and then we’ll make a decision. I’m still in a situation where I’ve expressed the view that I’m opposed to the bombing campaign or engagement. I think the history of the UK involvement in the Middle East has been a disaster, to say the least . . .This isn’t like the Second World War where you have a military campaign – you defeat the enemy, you sign a peace agreement and that’s it – this is asymmetric warfare. In addition to the risks that are in the battlefield there’s a risk in every community in our land as a result of it.”

Would he want any of the 14 former shadow cabinet members who refused to serve under Corbyn to return? “All of them, we’re trying to get them all back. We’ve got Yvette [Cooper] helping us on a review we’re doing about the economy and women . . . It’s an open door policy, I’m trying to meet them all over these next few weeks.”

Livingstone, a member of Labour’s National Executive Committee, recently called for Simon Danczuk, who revealed details of a private meeting with Corbyn in the Mail on Sunday, and Frank Field, who told me that MPs should run as independents if deselected, to be disciplined. But McDonnell takes a more conciliatory line. “With Simon [Danczuk] in particular and the others, it’s just a matter of saying look at the long-term interests of the party. People don’t vote for a divided party. They’ll accept, though, that within a party you can have democratic debate. As I said time and time again, don’t mistake democracy for division. It’s the way in which you express those different views that are important. All I’m saying is let people express their views, let’s have democratic engagement but please don’t personalise this. I think there’s a reaction within the community, not just the party, against personalised politics. It’s not Jeremy’s style, he never responds in that way. It’s unfortunate but we’ll get through it. It’s just minor elements of it, that’s all.”

McDonnell disavows moves by some in Momentum, the Corbyn-aligned group, to deselect critical MPs. “What we’re not into is deselecting people, what we want to try and do is make sure that everyone’s involved in a democratic engagement process, simple as that.

“So I’ve said time and time again, this isn’t about deselection or whatever. But at the same what we’re trying to say to everybody is even if you disagree, treat each other with respect. At the height of the debates around tuition fees and the Iraq war, even though we had heated disagreements we always treated each other with mutual respect and I think we’ve got to adhere to that. Anyone who’s not doing that just lets themselves down, that’s not the culture of the Labour Party.”

In private, the 90 per cent of MPs who did not support Corbyn’s leadership bid speak often of how and when he could be removed. One point of debate is whether, under the current rules, the Labour leader would automatically make the ballot if challenged or be forced to re-seek nominations. McDonnell is emphatic that the former is the case: “Oh yeah, that’s the rule, yeah.”

McDonnell’s recent media performances have been praised by MPs, and he is spoken of by some on the left as a possible replacement if Corbyn is removed or stands down before 2020. His speech to the PLP on 23 November was described to me by one shadow minister as a “leadership bid”. But McDonnell rules out standing in any future contest. “No, no, I’ve tried twice [in 2007 and 2010], I’m not going to try again, there’s no way I would.”

Despite opinion polls showing Labour as much as 15 points behind the Conservatives, McDonnell insists that the party can win in 2020. “Oh definitely, yeah, you’ll see that. I think this next year’s going to be pivotal for us. We’re going to destroy Osborne’s credibility over the next six months. But more importantly than that, we can’t just be a negative party . . . we’re going to present a positive view of what Labour’s future will be and the future of the economy.

“Over the next 18 months, we’ll be in a situation where we’ve destroyed the Tories’ economic reputation and we’ve built up our own but we’ll do it in a visionary way that presents people with a real alternative.”  

George Eaton is political editor of the New Statesman.