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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Boris Johnson isn't risking his political life over Heathrow

The anti-Heathrow campaigner was never a committed environmentalist. 

A government announcement on expanding London’s airports is expected today, and while opposition forces have been rallying against the expected outcome - a third runway at Heathrow - the decision could also be a divisive one for the ruling Conservative party. A long consultation period will allow these divisions to fester. 

Reports suggest that up to 60 Conservative MPs are against expansion at the Heathrow site. The Prime Minister’s own constituents are threatening legal action, and the former London mayoral candidate, Zac Goldsmith, has promised to step down as MP for Richmond rather than let the airport develop.

But what of Boris Johnson? The politician long synonymous with Heathrow opposition - including a threat to lie down “in front of those bulldozers” - is expected to call the decision a mistake. But for a man unafraid to dangle from a zipwire, he has become unusually reticent on the subject.

The reticence has partly been imposed upon him. In a letter to her cabinet ministers, Theresa May has granted them freedom from the usual rules of collective responsibility (under which cabinet ministers are required to support government positions). But she has also requested that they refrain from speaking out in the Commons, from “actively” campaigning against her position, and from calling “into question the decision making process itself”.  

Johnson is not about to start cheering for Heathrow. But unlike Goldsmith, he is no committed environmentalist - and he's certainly a committed politician.  

Boris’s objections to the expansion at Heathrow have all too often only extended as far as the lives of his London constituents. These local impacts are not to be belittled – in his role of mayor of London, he rightly pointed to the extreme health risks of increased noise and air pollution. And his charisma and profile have also boosted community campaigns around these issues. 

But when it comes to reducing emissions, Johnson is complacent. He may have come a long way since a 2013 Telegraph article in which he questioned whether global warming was real. Yet his plan to build an alternative “hub” airport in the Thames Estuary would have left the question of cutting UK aviation emissions worryingly un-resolved. This lack of curiosity is alarming considering his current job as foreign secretary. 

And there are reasons to be concerned. According to Cait Hewitt at the Aviation Environment Federation, the UK fails to meet its targets for CO2 reduction. And the recent UN deal on aviation emission mitigation doesn’t even meet the commitments of the UK’s own Climate Change Act, let alone the more stringent demands of the Paris Agreement. “Deciding that we’re going to do something that we know is going to make a problem worse, before we’ve got an answer, is the wrong move”, said Hewitt.

There is a local environmental argument too. Donnachadh McCarthy, a spokesperson from the activist group “Rising Up”, says the pollution could affect Londoners' health: "With 70 per cent of flights taken just by 15 per cent of the UK's population... this is just not acceptable in a civilised democracy.”

The way Johnson tells it, his reason for staying in government is a pragmatic one. “I think I'd be better off staying in parliament to fight the case, frankly," he told LBC Radio in 2015. And he's right that, whatever the government’s position, the new “national policy statement” to authorise the project will likely face a year-long public consultation before a parliamentary vote in late 2017 or early 2018. Even then the application will still face a lengthy planning policy stage and possible judicial review. 

But if the foreign secretary does fight this quietly, in the back rooms of power, it is not just a loss to his constituents. It means the wider inconsistencies of his position can be brushed aside - rather than exposed and explored, and safely brought down to ground. 

India Bourke is an environment writer and editorial assistant at the New Statesman.