Saturday, 27 March 2010

The Twitter "Bomb Hoax" - Why The Court Vacated The Guilty Plea

Paul Chambers is the chap who made an ill-conceived joke on Twitter about an airport bomb.

In two previous blogposts, one at Bad Law and the other here, I was able to establish that the Crown Prosecution Service had chosen to prosecute him "in the public interest" not under the bomb hoax offence which Parliament had provided for in the Criminal Law Act 1977, but instead under the little-used and relatively obscure section 127 of the Communications Act 2003.

In my view, the use of this provision, for which there is hardly any case law in general and none at all in respect of "menace", was always likely to lead to an injustice.

Its use in this case was clearly artificial and misconceived.

It also requires proof of intention ("mens rea"), which the CPS seem to have overlooked in their eagerness to give Mr Chambers a criminal conviction for what they appear to have thought was merely a strict liability offence.

Mr Chambers initially pleaded guilty.

Earlier this week, I was able to report that the court had now allowed Paul Chambers to vacate his guilty plea.

I understand this was ultimately because the original solicitor saw my Bad Law post, though I do not know that for certain.

If so, then this is pleasing; however, it would have been far better for this silly prosecution to have not been brought at all.

I now set out below, in full, the decision on vacating the plea by the District Judge. It is, in my view, an elegant and attractive piece of legal reasoning, and it does great credit to the District Judge.

Indeed, District Judges are in my opinion the unsung heroes of the criminal justice system.

I also note in passing that, unless there is the requirement to prove a menacing intention (and so not just strict liability on the basis of the words being themselves menacing), then I am below committing the very same offence as Mr Chambers when I repeat the "joke" in paragraph numbered 1 below.

And any Court officer who emailed or faxed the judgment also committed the same offence...

In the Doncaster Magistrates’ Court

R v Paul John Chambers

1. On the 19th February 2010 Paul Chambers (the defendant) appeared before the Doncaster Magistrates’ Court when he was legally represented and pleaded guilty to the following offence:

On Wednesday 6th January 2010 at Doncaster sent by means of a public electronic communications network a message namely “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!” that was grossly offensive or of an indecent, obscene or menacing character, contrary to section 127(1)(A) and (3) of the Communications Act 2003.

The case was adjourned for a pre sentence report to be prepared. All sentencing options were left open.

2. On the 12th March the defendant appeared but was represented by new solicitors. They indicated the defendant wished to vacate his guilty plea. The case was then adjourned to 15th March when the matter came before me for the application to vacate to be considered.

3. A plea may be changed at anytime up to the moment of sentence but a change of plea is always subject to a discretion that must be exercised judicially and in the interests of justice, not just the interests of the defendant. The procedure for a change of plea in the magistrates’ court is covered by rule 37.9 of the Criminal Procedure Rules 2005. The application has not been made in writing but I have received full details from the defendant’s new solicitors as to the reasons for this application. In summary it is submitted that his previous solicitor had little time to consider the charge. Subsequently that solicitor had some concerns as to whether the correct plea had been entered and referred the case to new solicitors. Furthermore it is said the defendant has a defence to the charge in that it is suggested he did not have the necessary means rea for the offence. I have been referred to his lengthy interviews with the police to support this proposition. I have also been directed to the case of DPP v Collins [2006] UKHL 40. In that case, which was a case of “grossly offensive” conduct under s.127, Lord Bingham touched upon the mens rea of the offence. In paragraph 10 he raised the question:

“In contrast with section 127(2)(a) and its predecessor subsections, which require proof of an unlawful purpose and a degree of knowledge, section 127(1)(a) provides no explicit guidance on the state of mind which must be proved against a defendant to establish an offence against the subsection. What, if anything, must be proved beyond an intention to send the message in question?”

He answered his question in the following paragraph:

“11 It is pertinent to recall Lord Reid’s observations in Sweet v Parsley [1970] AC 132, 148:

"Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.”

"This passage is relevant here, since Parliament cannot have intended to criminalise the conduct of a person using language which is, for reasons unknown to him, grossly offensive to those to whom it relates, or which may even be thought, however wrongly, to represent a polite or acceptable usage. On the other hand, a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing to must have been recognised by the sender. The same will be true where facts known to the sender of a message about an intended recipient render the message peculiarly offensive to that recipient, or likely to be so, whether or not the message in fact reaches the recipient.”

4. Since the case was before me on Monday I have had an opportunity to consider the defendant’s interviews that took place with the police on the 13th January 2010. The essence of his interviews is that he accepts posting the message on the social networking site known as “Twitter” but denies any intention that this should be seen by staff at Robin Hood airport. He did not think anyone would take it seriously and regarded it as nothing more than “silly humour”. As Mr Haigh pointed out the police believed the matter would be denied at court as the anticipated plea entered upon the MG 5 prepared by the police was “not guilty”.

5. Successful applications to vacate pleas in the Magistrates’ court, particularly when a defendant is represented, will be exceptional. However in this case I exercise my discretion to allow the defendant to vacate his plea in the interest of justice. In coming to this view I take account of the fact that this is an unusual charge. The defence had little time to consider the matter and in these days of CJSSS there is great pressure upon everybody, not least those representing defendants, to enter pleas as quickly as possible. I further note it was the defendant’s previous solicitors, who upon reflection, began to have doubts about the original plea. This is not a case of a defendant, having entered a guilty plea, then appreciating the seriousness of the case and consequently having a change of heart. I also note there are valid legal issues raised, particularly those arising out of the of DPP v Collins, which may afford a valid defence. I have paid particular attention to the stance of the defendant in his interviews. In couching my remarks in these terms I express no view one way or the other as to the likely outcome of such legal argument that may follow in any subsequent trial.

6. In allowing the defendant to vacate his plea he will, I have no doubt, been advised that, if convicted, he will get no credit for entering a plea in accordance with s144 Criminal Justice Act 2003.

Jonathan Bennett
District Judge (Magistrates’ Court)
18th March 2010


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Justin Roberts said...

I don't think the joke was even ill-conceived. It was not conceived at all. People make off the cuff remarks like that, without thinking, all the time. Just because it was via Twitter should make no difference. If Sth Yorks Police and the CPS can't distinguish a joke from something more serious they don't really deserve to be in their jobs. I hope this backfires on those responsible!

not a clue said...

That's clearly the case Justin but there's a difference in say shouting "fire!" in your own kitchen and shouting out in a crowded theatre. Twitter is more like a theatre, isn't it?

Justin Roberts said...

@not a clue. To use your analogy, he might have shouted "fire" in a theatre, but he was dressed up as a fireman and dancing around when he did it - obvious enough for a child to determine it was a joke. That's the real difference and why the CPS and Sth Yorks Police have cocked up!

ivan said...

Shouting fire in a theatre, you can reasonably expect the patrons of the theatre to hear you. But if did shout "the theatre is on fire", he didn't actually do so in the theatre itself. He did it in a place where he had no reasonable expectation of the users, and more especially the management, of the airport, noticing it.

This is surely in the same category as my schoolteacher saying "if you don't buck your ideas up I'll put a bomb under your chair". As they regularly did.

Flay said...

Indeed, the judge's views in allowing the vacated plea are encouraging. I would expect that if this goes to trial then the judge will direct a jury to consider whether the defendant intended menace.

Steve said...

It's understandable to have a law stating that people can not utter false statements designed to incite fear (like yelling fire in a theater) but to punish someone under a different law for something they said on Twitter just illustrates the fear-based society we live in. Everyone is scared of everybody around them and we take everything way too seriously because we're afraid of not taking things seriously enough. It's sad...

Shawn said...

While I would throw the bugger in jail simply for being such a dunce I applaud the magistrate's decision to apply the law even when it would be far more tempting to exact revenge for wasting the court and law enforcement's time. Bravo!