There was a very significant development last week in the case of Paul Chambers, whose ill-conceived joke on Twitter about blowing up an airport resulted in a criminal investigation, an arrest, a charge, and a decision to prosecute by the Crown Prosecution Service.
Mr Chambers has now switched his plea to Not Guilty, thus forcing the CPS to prove that he has committed an offence.
By way of background, you may recall Mr Chambers pleaded Guilty at Doncaster Magistrates Court last month.
You may also recall that in posts on my Bad Law column and also here on Jack of Kent, I was able to establish that Mr Chambers was being prosecuted for an offence for which he was not arrested, as the CPS had decided (rightly) that there was insufficient evidence for the specific bomb hoax offence under the Criminal Law Act 1977.
Instead, the CPS took, in my view, the misconceived decision to prosecute under section 127 of the Communications Act 2003:
"A person is guilty of an offence if he...sends by means of a public electronic communications network a message or other matter that is...of [a]...menacing character."
I think this was misconceived for three reasons.
First, the whole process reeked of the CPS deciding that a prosecution was in the public interest and then looking around for an offence - any offence - under which to prosecute. I even wonder if it was to prevent some embarrassment.
Second, the section 127 offence in respect of "menace" (it can also be used for grossly offensive, indecent, or obscene messages) is rarely used; indeed, there is no reported case law. Even the CPS's own guidance on section 127 recommends that the 1977 Act is to be preferred for supposed bomb hoaxes. And problems can easily occur when an unfamiliar offence is prosecuted.
Third, the section 127 offence still clearly required evidence of an intention to menace; this could be inferred from the House of Lords 2006 case of Collins in respect of offensive messages.
So I wrote in Bad Law:
"Presumably the “menacing” element of section 127(1) would be treated in a similar way [to Collins]....the offence surely still required Paul Chambers to have intended the message to be menacing to whom it related or be aware that it may be taken to be so."
Accordingly, I warned an injustice was occurring.
I now understand that, partly because of my blogposts, a sequence of events led to the case taking a new and more encouraging turn.
Last week, after a couple of adjournments, an application was made for the "Guilty" plea to be vacated. Such applications are exceptional.
The district judge accepted the application. This is even more exceptional.
I understand that the reason was for the court to be able to re-consider the required intention. It would seem that those involved in the original prosecution had assumed the offence was strict liability and proceeded on that basis.
But the district judge now wants to hear argument as to the required intention for the offence to be committed.
In my view, following Collins, there is a clear requirement for the prosecution to prove intention of menace.
If so, then it would appear to me that the CPS are perhaps now in a difficult position.
According to the BBC report, the CPS said at the first trial:
"[Mr Chambers] admitted posting the message into the public domain but never intended the message to be received by the airport or for them to take it seriously."
And, in a response to a question in my Bad Law column, the CPS press office stated:
“A more serious charge under section 51 Criminal Law Act 1977 was considered but was not felt to be appropriate as there was no evidence that he intended to induce in the recipient a false belief there really was a bomb.”
Either of these statements - in my view - would tend to go against any attempt by the CPS to now show sufficient intention of menace for the section 127 offence to be prosecuted.
However, one can not be certain; and it is entirely a matter for the court.
We shall find out in May what happens when legal argument is due to be heard.
It may be that the court holds it is indeed a strict liability offence; or that it holds that the prosecution has shown sufficient intention on the part of Mr Chambers.
One can never predict what a judge will do.
As for the vacation of the guilty plea, it is of course nice to feel that any blogpost has some practical effect.
I hope the vacation of the plea works out and that, in the event of a conviction, Mr Chambers is not worse off than if he had maintained his plea of guilty.
However, it would have been far nicer if the South Yorkshire Police and the CPS had not, in my opinion, over-reacted to a (bad) joke on Twitter, which itself caused no direct inconvenience.
Of course, bomb hoaxes should not be taken lightly; that is the reason why Parliament legislated for a specific offence.
But once it was clear that there could not be a successful prosecution under the 1977 Act, the case should have simply stopped there.
It surely would have been in the public interest.
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