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.)

The University Challenge final. Photo: BBC iPlayer
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Why University Challenge is deliberately asking more questions about women

Question setters and contestants on how the show finally began to gender-balance its questions – and whether it’s now harder as a result.

University Challenge has long had a gender problem. When the show first started airing in 1962, some Oxbridge colleges were still refusing to admit women as undergraduates; in the decades since, women have been consistently outnumbered by men, with all-male teams still a regular occurrence. Those women that did appear were all too regularly criticised and objectified in equal measure by audiences: notable contestants like Hannah Rose Woods, Emma Johnson, Samantha Buzzard and Sophie Rudd have experienced intense media scrutiny and criticised the sexism of the show and audiences. In recent years, sexism rows have dogged the show.

How satisfying, then, to see two women carrying their teams in last night’s final: Rosie McKeown for winners St John’s, Cambridge, and Leonie Woodland for runners-up Merton, Oxford. Both secured the majority of points for their teams – McKeown with visible delight, Woodland looking unsure even as she delivered correct answer after correct answer.

But there is another site of sexism on University Challenge, one that earns less column inches: the questions. Drawing on all areas of history, science, language, economics and culture, the questions often concern notable thinkers, artists, scientists, and sportspeople. Of course, our society’s patriarchal hierarchies of achievement have meant that the subjects of these questions are mostly men. General knowledge is, after all, a boys’ club.

Over the course of this 2017-8 series, though, I noticed a shift. More women than ever seemed to be making their way into the questions, at times with deliberate reference to the inherent sexism of their lack of cultural prominence. On 5 February, there was a picture round devoted to female composers, with contestents asked to identify Clara Schumann, Ethel Smyth, Rachel Portman and Bjork from photographs, who, Paxman explained, are all “women that are now listed in the EdExcel A Level music syllabus after the student Jessy McCabe petitioned the exam board in 2015.” Episodes have included bonus rounds on “prominent women” (the writer Lydia Davis, the pilot Lydia Litvyak, and the golfer Lydia Ko), “women born in the 1870s and 80s” (Rosa Luxemburg, Elizabeth Arden and Vanessa Bell), and the female philosophers Mary Midgely, Philippa Foot and Iris Murdoch.

Elsewhere, questions raise a knowing eyebrow at the patriarchal assumptions behind so much of intellectual endeavour. A music round on famous rock bands quoted the music critic Kelefa Sanneh’s definition “rockism”: “the belief that white macho guitar music is superior to all other forms of popular music”. Another, on opera, quoted Catherine Clement’s Opera, Or The Undoing of Women, which explores how traditional opera plots frequently feature “the infinitely repetitive spectacle of a woman who dies”. “Your music bonuses are three such operas,” Paxman said dryly, to audience laughter.

University Challenge’s questions editor Thomas Benson confirms that there has been a deliberate attempt to redress a gender imbalance in the quiz. “About three years ago, a viewer wrote in to point out that a recent edition of the programme had contained very few questions on women,” he explains. “We agreed and decided to do something about it.”

Last night’s final included a picture round on artists with works concerning motherhood (Mary Casatt, Lousie Bourgeois, Leanora Carrington and Frida Kahlo) and a music round on Marin Alsop, the first woman to ever conduct the Last Night of the Proms, as well as sets of bonuses on the American writer Willa Kather and Byzantine historian and princess Anna Komnene.

Former winner Hannah Rose Woods is delighted by the increase in such questions. “I think it’s fantastic!” she tells me. “These things are really important in changing people’s perceptions about women in the past, and the way women’s contributions to science and the arts have often been written out of history. We need to keep challenging the idea of the White Male Canon.”

Last night’s winner Rosie McKeown says that while she didn’t necessarily notice a deliberate attempt to gender balance the questions, she was “very pleased with the quality of those questions that did come up”.

“Although it wasn’t in one of our matches,” she tells me, “I thought the picture round on female composers was especially good for highlighting women’s achievements.”

For all the enthusiasm for these questions, in the studio they’re often met with blank stares. While University Challenge questions are broad and imaginatively posed, there are some reliable revision topics and techniques: from Nobel laureates and the years of their wins to identifying famous paintings and classical music excerpts. McKeown says she has been a religious viewer of the show since she was 11 years old, and admits to watching reruns of the show to prepare. Shift the kinds of answers you might be looking for, and teams may struggle.

“Do we know any female British composers?” Leonie Woodland said weakly, looking at a picture of Ethel Smyth. Trying to come up with a female Muslim Nobel laureate, one contestant desperately suggested Aung San Suu Kyi. Asked to provide a first name linking an American concert pianist with the sister of Lazarus one male contestant still buzzed in with “Daniel”.

“Even if we didn’t always get them right,” McKeown tells me, citing that round on female philosophers, which saw them pass on every question, as an example, “it was great to see so many important female figures represented.”

“I don't think the questions about women necessarily affected our performance, but it’s certainly a very good thing that they were there and I hope that they’ll arouse people’s interest in the women featured and in their achievements.”

Benson believes that it hasn’t had a significant effect on performance. “The great majority of the questions that feature women are no different to any others, in that they sit firmly within the realm of standard academic general knowledge.”

He notes that they often refer to historical and background details, citing sets of bonuses on Canadian novelist Ruth Ozeki and British physicist Hertha Ayrton, which both teams answered correctly in full. “Though Ozeki and Ayrton may not be household names, the questions are definitely answerable and deal with central themes in their work and achievements.”

It’s easy to brush off the significance of a fairly geeky Monday night BBC quiz show, but University Challenge still regularly pulls in three million viewers. In any case, a show like University Challenge has a cultural significance that outweighs its viewing figures. It helps to shape our understanding of which subjects are intellectual or important, which are history’s most notable achievements, and who is worth learning about. To ignore questions of identity is to risk intellectual laziness, relying on tired ideas of canonical figures – or worse, supremacist propaganda, privileging the achievements of white men over all others.

Quite aside from making for less predictable and more enjoyable television, by including questions on the likes of Stevie Smith, Nella Larsen, Gertrude Stein, Myra Hess, Margaret Mead, and Beryl Bainbridge, University Challenge can diversify the mental encyclopaedias of its viewers, be it a tweed-wearing 60-year-old in Leamington Spa or an 11-year-old like Rosie McKeown with her own dreams of one day competing. It has a responsibility to do so.

Anna Leszkiewicz is the New Statesman's deputy culture editor.