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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The rise of the green mayor – Sadiq Khan and the politics of clean energy

At an event at Tate Modern, Sadiq Khan pledged to clean up London's act.

On Thursday night, deep in the bowls of Tate Modern’s turbine hall, London Mayor Sadiq Khan renewed his promise to make the capital a world leader in clean energy and air. Yet his focus was as much on people as power plants – in particular, the need for local authorities to lead where central governments will not.

Khan was there to introduce the screening of a new documentary, From the Ashes, about the demise of the American coal industry. As he noted, Britain continues to battle against the legacy of fossil fuels: “In London today we burn very little coal but we are facing new air pollution challenges brought about for different reasons." 

At a time when the world's leaders are struggling to keep international agreements on climate change afloat, what can mayors do? Khan has pledged to buy only hybrid and zero-emissions buses from next year, and is working towards London becoming a zero carbon city.

Khan has, of course, also gained heroic status for being a bête noire of climate-change-denier-in-chief Donald Trump. On the US president's withdrawal from the Paris Agreement, Khan quipped: “If only he had withdrawn from Twitter.” He had more favourable things to say about the former mayor of New York and climate change activist Michael Bloomberg, who Khan said hailed from “the second greatest city in the world.”

Yet behind his humour was a serious point. Local authorities are having to pick up where both countries' central governments are leaving a void – in improving our air and supporting renewable technology and jobs. Most concerning of all, perhaps, is the way that interest groups representing business are slashing away at the regulations which protect public health, and claiming it as a virtue.

In the UK, documents leaked to Greenpeace’s energy desk show that a government-backed initiative considered proposals for reducing EU rules on fire-safety on the very day of the Grenfell Tower fire. The director of this Red Tape Initiative, Nick Tyrone, told the Guardian that these proposals were rejected. Yet government attempts to water down other EU regulations, such as the energy efficiency directive, still stand.

In America, this blame-game is even more highly charged. Republicans have sworn to replace what they describe as Obama’s “war on coal” with a war on regulation. “I am taking historic steps to lift the restrictions on American energy, to reverse government intrusion, and to cancel job-killing regulations,” Trump announced in March. While he has vowed “to promote clean air and clear water,” he has almost simultaneously signed an order to unravel the Clean Water Rule.

This rhetoric is hurting the very people it claims to protect: miners. From the Ashes shows the many ways that the industry harms wider public health, from water contamination, to air pollution. It also makes a strong case that the American coal industry is in terminal decline, regardless of possibile interventions from government or carbon capture.

Charities like Bloomberg can only do so much to pick up the pieces. The foundation, which helped fund the film, now not only helps support job training programs in coal communities after the Trump administration pulled their funding, but in recent weeks it also promised $15m to UN efforts to tackle climate change – again to help cover Trump's withdrawal from Paris Agreement. “I'm a bit worried about how many cards we're going to have to keep adding to the end of the film”, joked Antha Williams, a Bloomberg representative at the screening, with gallows humour.

Hope also lies with local governments and mayors. The publication of the mayor’s own environment strategy is coming “soon”. Speaking in panel discussion after the film, his deputy mayor for environment and energy, Shirley Rodrigues, described the move to a cleaner future as "an inevitable transition".

Confronting the troubled legacies of our fossil fuel past will not be easy. "We have our own experiences here of our coal mining communities being devastated by the closure of their mines," said Khan. But clean air begins with clean politics; maintaining old ways at the price of health is not one any government must pay. 

'From The Ashes' will premiere on National Geograhpic in the United Kingdom at 9pm on Tuesday, June 27th.

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

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