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Tuesday, 11 May 2010

Paul Chambers: a Disgraceful and Illiberal Judgment

I set out below the decision of District Judge Jonathan Bennett that Paul Chambers was guilty of the offence of sending a menacing message via a public telecommunications network, contrary to section 127 of the Communications Act 2003.

Regular readers of this blog will know I rarely criticise judges. In two years following the Simon Singh libel case, for example, I never once directly criticised Mr Justice Eady.

However, I believe the judgment below is not only illiberal and incorrect.

I believe it is a disgrace.

But even more worrying is the revelation that the Crown Prosecution Service submitted that the offence needed no intention at all.

This means that any message sent via the internet - tweets, emails, posts, comments, videos, music files - will expose a person to potential criminal liability if the content of the message ever seems to the Crown Prosecution Service to be "of an indecent, obscene or menacing character" regardless of the intention of the person sending it; indeed, regardless of whether the message is ever received.

It is bad enough that a judge makes a very bad decision; but it is very serious indeed that the CPS actually sees Section 127 as not requiring any evidence of intention.

The CPS position on Section 127 is simply intolerable in a free society.


I now set out the judgment, which has been copy typed from image files kindly provided by the wonderful @CrazyColours.


R v Paul Chambers

1. This is an unusual case not least because all the facts are agreed. On January 6th this year Paul Chambers (the defendant) posted a message on his social networking site known as “Twitter”. The message was “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!” This was in response to a news feed that he had just received that the airport was closed due to the weather conditions prevailing at that time. Subsequently this “tweet”, which was posted on the public timeline and thus was in theory available to anyone to view, was seen by Mr Duffield, the airport duty manager at Robin Hood airport. He saw it on January 11th and immediately notified security at the airport.

Subsequently the defendant was arrested and interviewed under caution at Doncaster police station on 13th January. There were two lengthy interviews. The defendant accepted he had posted the message into the public domain of “Twitter” but maintained he had never intended the message to be received by the airport or for them to take it seriously. He was subsequently charged with 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 127(1)(A) and (3) of the Communications Act 2003".


After a somewhat circuitous route, that need not concern me now, he pleaded not guilty. I heard today oral evidence from Mr Duffield and the defendant. All the other evidence was read in the form of agreed statements.


2. As in any criminal case the prosecution must prove that the defendant is guilty. The defendant does not have to prove his innocence. In a criminal trial the burden of proving the defendant’s guilt is on the prosecution.

How does the prosecution succeed in proving the defendant’s guilt? The answer is – by making me sure of it. Nothing less than that will do. If after considering all the evidence I am sure that the defendant is guilty, I must return a verdict of ‘Guilty’. If I am not sure, my verdict must be ‘Not Guilty’.


3. I have heard that the defendant is a man of good character. Of course, good character cannot by itself provide a defence to a criminal charge, but it is evidence which I should take into account in his favour in the following ways:

In the first place, the defendant has given evidence, and as with any man of good character it supports his credibility. This means it is a factor which I should take into account when deciding whether to believe his evidence.

In the second place, the fact that he is of good character may mean that he is less likely than otherwise might be the case to commit this crime now.


4. I turn now to the elements of the offence. The prosecution have to prove

- the sending of a message by public communications network.

Here the parties are agreed that a message was sent using the “Twitter” social networking site.

- that it was of a menacing character.

I have considered the word "menacing". The OED says menacing means of “a threatening quality”. The defence case, as put forward by Mr Haigh, is that I must look at the context of this remark. It cannot be viewed in isolation. The defendant, in particular, told me sought to send interesting “tweets”. They were generally friendly, the language can vary but he often uses hyperbole. He referred me to some examples of the “tweets” where both bad language and ridiculous suggestions were made. Furthermore the defence suggest it is a pointless proposition – what would be the point of blowing up an airport that isn’t open (see paragraph 5 of the defence skeleton argument).

Against this I have to consider the final part of the “tweet” – “otherwise I’m blowing the airport sky high”. The context is we live in a society where there are huge security concerns particularly in relation to airports and air travel. I do not need to repeat the very real incidents there have been in the UK in recent years let alone worldwide. With that background I can have no doubt that the remark posted by the defendant is menacing. His intention is of course different matter to which I now turn.

I now have to consider whether the prosecution have to demonstrate a particular state of mind to satisfy me the offence is made out. It is more than just an intention to send a message to another. [The prosecutor] in his skeleton argument seeks to persuade me that mens rea is not required for the offence beyond a simple intention to send the message (see paragraph 7 of the prosecution skeleton argument).

I have been referred to the case of DPP v Collins [2006] UKHL. This is a House of Lords case. In that case, which referred to “grossly offensive” conduct under s. 127, Lord Bingham touched upon the state of mind or mens rea of the offence. In paragraph 30 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 sent the message in question?”

He answered his question in the following paragraph:

""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 so 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."


Lord Carswell agreed. He stated "I respectfully agree with the conclusion ...[of] Lord Bingham of Cornhill ... that it must be proved that the respondent intended his words to be offensive to those to whom they related or be aware that they may be taken to be so”. He also agreed that it can make no difference to criminal liability whether a message is ever actually received or whether the persons who do receive it are offended by it.

It is not sufficient for the prosecution to say this case is obiter dicta because the ratio of the case concerned the definition of “grossly offensive”. It is dealing with the very same sub-section. I find the case binding upon me. I therefore conclude that the prosecution must show some mens rea to satisfy me, to the requisite standard of proof, for me to find this case is proved.


5. The final issue for me to decide therefore is whether this part of the case is made out. The defendant has maintained in lengthy interviews and also in giving evidence before me today that he had no such intention. He points out the slim likelihood that anyone just on the “Twitter” site would ever see his posting.

However, I do not have to accept what the defendant tells me about his state of mind at face value. I also note the defendant is an experienced, and clearly very heavy user, of “Twitter”. Furthermore he has travelled by air, although he had not used Robin Hood airport previously. I found strange his evidence in relation to airport threats not seeming to relate to him and appearing to be in another world. Of particular significance is the fact that this “tweet” was posted to the public timeline, unlike most of his “tweets” in the time frame around this particular posting. This message would have been of particular significance to the lady known as “crazy colours” in Northern Ireland to whom the defendant was going to see on his air journey. He chose to post it in the public domain where in theory it was open for anyone to see, as indeed did Mr Duffield.


6. I am therefore satisfied, so that I am sure, that the defendant sent the message via “Twitter” and it was of a menacing nature in the context of the times in which we live. Furthermore I am satisfied the defendant was, at the very least, aware that this was of a menacing nature and I find him guilty of the offence.


Jonathan Bennett
District Judge (Magistrates Court)
Doncaster

10th May 2010




COMMENTS MODERATION

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50 comments:

The Heresiarch said...

I notice the DJ says nothing whatever about how Duffield came to see the Tweet. Yet this is surely a highly relevant - indeed crucial - point.

Abaddon the scrivener said...

But at least the magistrate decided mens rea was required ("the prosecution must show some mens rea") even though he then seems to have ignored that

Schroedinger99 said...

Now if Paul Chambers had pursued a career in premium rate telephone fraud instead of accountancy he would never have been prosecuted under the 2003 Communications Act.

[Note to the CPS: If you are reading this, I (unlike the regulators "PhonepayPlus") don't really condone fraud. This is an example of satire - a type of joke.]

@marckelly said...

It seems perverse that he can satisfy himself that the tweet was menacing simply by reference to 'the times in which we live'. The people paid to worry about these things weren't in the least bit concerned. Who did he think might have found the tweet menacing if they did not?

Surely by failing to hold up even a notional figure against whose reaction we might judge the menacing nature of the message he has misdirected himself as to the standard to be applied.

There was plainly no intention to be menacing, the message in fact wasn't menacing and nobody was menaced.

Donald said...

Please read section 32. I think that Twitter should be outwith the scope of this act because it is neither a communications network, nor a communications service. It functions more like a bulletin board where people submit messages and others fetch messages. If anything, Twitter is a content service.

@donaldhunter

Grania said...

I can't see how a comment can be regarded as a threat when it is clear there was no intent for it to be a threat. Even the airport security knew there was no actual threat here. So did the police.

Is the judge saying that this constitutes a threat because he says it is? Because I don't see any other reason given.

WokStation said...

@Abbadon
I noticed that. The judge clearly describes how it's crucial to a conviction and then totally fails to show there was any.

"6. I am therefore satisfied, so that I am sure, that the defendant sent the message via “Twitter” and it was of a menacing nature in the context of the times in which we live. Furthermore I am satisfied the defendant was, at the very least, aware that this was of a menacing nature and I find him guilty of the offence."

Where's the statement of intent?

UK Expat said...

Seems to me that the relevant Section of the Act mentioned is the problem, since it is phrased such as to be wide open to abuse.

So Twitter, as a "public electronic communications network", must not be used to send messages that are

- grossly offensive
- indecent
- obscene
- menacing
- annoying
- inconveniencing
- causing needless anxiety

They forgot the religious angle but I guess that's covered by "causing needless anxiety".

Looks as though the above was framed by the same people that put together the UK's libel laws – accident waiting to happen.

twaza (@wassabeee on twitter) said...

How can anyone living in these times not recognize JeremyClarkson-speak when they hear it?

Such people must feel menaced most of the time.

@adambanksdotcom said...

It seems to have been crucial to DJ's conclusion re mens rea that defendant chose to tweet the offending remark publicly rather than privately:

'Of particular significance is the fact that this “tweet” was posted to the public timeline, unlike most of his “tweets” in the time frame around this particular posting.'

Not sure what this means. AFAIK all tweets are in public timeline unless your account is protected. You don't choose public or non public per tweet. Does Allen or anyone else know what this refers to?

Even if meaningful, this point would seem egregiously weak. Had defendant wanted the communication to be menacing he could have @'d to an account connected to the airport, or emailed. Communication was clearly a frustrated outburst, not a targeted threat.

There is, of course, no evidence that any person took it as a serious threat or felt menaced by it. That this appears not to have carried any weight for the defence is astonishing, and if this truly fits the intention of the legislation it's strange law indeed.

I don't see how DJ can consider himself qualified to judge mens rea in the act of tweeting without understanding, in much more depth than is evident here, the nature of Twitter and its very novel balance of private and public communication.

Nor can it be right to assume those who drafted the act anticipated the existence of such a medium or the mental states that would pertain to its use (re both sender and receiver). There is no discussion of whether the act (cf Donald's point) or the section reasonably applies.

To take into account some vague sense of "the times in which we live" but not the hard fact that the medium in which the communication was sent has very recently come into existence, some six years after the legislation, is manifestly perverse.

I'm also flabbergasted that judgement has been handed down without a single reference to the fundamental principle of freedom of speech (whether in common law or via HRA 1998) as a factor to be weighed against the criminalisation of speech acts. Is DJ entirely unaware of the issue or does he not consider it his place to tackle it?

If the latter, this case was heard in the wrong forum and any appeal must go higher.

antheald said...

I tweeted earlier after seeing the last page of the judgement on @TwJokeTrialFund's avatar, that it seems clear that the judge still hadn't really understood how twitter works.

He writes: "Of particular significance is the fact that this “tweet” was posted to the public timeline, unlike most of his “tweets” in the time frame around this particular posting. This message would have been of particular significance to the lady known as “crazy colours” in Northern Ireland to whom the defendant was going to see on his air journey. He chose to post it in the public domain where in theory it was open for anyone to see, as indeed did Mr Duffield."

But an '@crazycolours' tweet is just as much in the public domain is one without. And given the 140 character limit, when you're engaged in a bout of twitter discourse it's very common to drop the '@' once you know that whoever you're conversing with is 'tuned in' to your stream.

Given that the judge says this is "of particular significance" when it isn't true, it seems (to my very non-legal mind) that that might form part of any appeal.

Zeno said...

After a lengthy point 4, Bennett's judgement just seems to peter out. As others have said, where's the rest of his reasoning?

Appeal, surely?

Anonymous said...

I know nothing about the law, but what I do know is this. If the Police or anyone else for that matter thought this was a menacing message, then why did they wait 5 days to arrest him?

Carla said...

"This means that any message sent via the internet - tweets, emails, posts, comments, videos, music files - will expose a person to potential criminal liability if the content of the message ever seems to the Crown Prosecution Service to be "of an indecent, obscene or menacing character" regardless of the intention of the person sending it; indeed, regardless of whether the message was ever received."
Sounds suspiciously like thought police to me.

Dan said...

I confess I find the CPS position on Section 127, well, kind of menacing....

phbradley said...

The issue of whether there is mens rea beyond intend to send (well duh) is quite frankly irrelevant. If it's subjective, then Paul is innocent - there is no evidence he intended to be menace anybody. The communication wasn't addressed, in any way, shape or form, to a target that could possibly be menaced by this. I realise that there is a 'postal rule' of sorts - the communication need not be received - but it surely has to be AIMED AT/intended for a target, in a subjective world?

Now, if it's not subjective, but objective - that is, so long as it has been a menace for someone, it is considered 'menacing' by the law - then the prosecution would face the total impossibility of bringing somebody before the court that would say he felt menaced. The evidence shows that the threat was dismissed out of hand. At most, the 'finder', who reported it, could credibly say he was concerned. But should he say he felt it threatened him, the court ought to fall over laughing!

To make this a crime of strict liability, and victimless, at that, is not only irrational and illiberal - it's a gross miscarriage of justice.

I would certainly feel confident about an appeal. I'm facing GDL (law conversion) exams at the moment, but even so, I have more time than spare cash - can I volunteer my help?

Zeno said...

phbradley said:

"The communication wasn't addressed, in any way, shape or form, to a target that could possibly be menaced by this."

Well, it did have the name of the airport in the tweet and I assume the airport duty manager found the tweet (I assume he wasn't following Chambers!) because he had a search set up for 'Robin Hood Airport'. Not just 'Robin Hood' because that would be likely to give too many spurious tweets; it would have to be the full 'Robin Hood Airport'.

However, I'm sure Chambers never thought about that - as far as he was concerned, he was tweeting to his followers.

rjh01 said...

One question. How can you work out the person's intent? A person could make the most explicit threat, yet when asked say it was just a joke.

Iain Coleman said...

Disgraceful indeed, and a bizarre judgement.

I am resident in Scotland: do I need to fear the English CPS with respect to my own tweets, or can I live in hope that the Procurator Fiscal is more reasonable?

Well Actually said...

One also has to wonder how this ruling squares with human rights protections regarding freedom of speech.

Karlos said...

There was a so-called comedienne and social commentator here in Australia who had a few too many Sherries at a TV awards ceremony recently and got on the Tweet who would, under that section, now be facing a lengthy incarceration.

TopoGigiiO said...

So if Jonathan Swift were alive and tweeting today, he might be in big trouble too?

Steve Jones said...

Quite apart from the intent issue, the airport itself didn't think this was a credible threat. How, therefore, could it be considered threatening? Even the most superficial study of this clearly shows it was a joke and not a threat.

Hopefully this will get sorted out on an appeal. As it is, who knows who will be the next person arbitrarily charged for one of the several classes of communication that might be deemed to fall under this act.

I rather assume that the drafters of this act had in mind those who were intentionally making threats, or appearing to make threats. The CPS and district judge in this matter are numpties. This is one of those judgments and decisions that beggars belief.

Daniel Pope said...

The judge never made mention of the fact that it is a joke, except to say that "he had never intended the message to be received by the airport or for them to take it seriously", which does not admit the fact that it was a joke.

It seems to me that both the menace and mens rea are tempered by the fact that it's a joke - people reading it should perceive it as a joke (especially given the nature of Twitter that acts to promote insightful or humourous tweets - and this was obviously not the former) and Chambers sent it with the intention that it be perceived as a joke.

Anna said...

He wrote a message that could be interpreted as offensive or threatening.
He broadcast it in a manner that could be read by the relevant airport authorities, regardless of how or why that message got to them.

You know what meets the same criteria? Writing "your mum" on a piece of paper and casting it into the sea in a bottle.

The average youtube video has far worse on it than Chambers' tweet. This is a bizarre, even frightening judgment.

Alastair Duncan said...

Milan Kundera's novel The Joke springs to mind. I wonder if the judge has read it.

http://en.wikipedia.org/wiki/The_Joke_%28novel%29

Rich said...

It occurs to me that, taking section 127 and the CPS interpretation of it at face value, some of the output of the press could well fall foul of the same offence? 127 talks about sending "a message or other matter". Columns by Jan Moir anyone?

Harry said...

The foremost human right these days appears to be the Right To Be Offended -- by whatever nonsense one chooses, and then run screaming to Mummy in the form of the police or judiciary to come and discipline the offender.

Alex Gough said...

Could the airport not have figured out his intent by asking him if he was serious? Perhaps by using the same twitter service on which they saw his 'menacing' tweet?

Keith Lard said...

I'm not saying this to wind you up - not least because I agree with you that this was an outrageous prosecution (for which the DPP should be hauled over hot coals) and conviction - but I fear you are letting your anger cloud your usually commendable forensic skills.

For example, you opine this is an "incorrect" judgment but fail to say why you believe this. What error(s) of fact and/or law, precisely, do you believe the judge to have made?

You have tweeted that the message in question was a "private" message. You clearly understand the Internet and Twitter rather better than the DJ, so why do you believe that a tweet on the public timeline is "private"?

You rail against the law considering that a statement "may be 'of an indecent, obscene or menacing character' regardless of the intention of the person sending it", yet that is precisely the case in many other instances. Can't unintentionally racist comments, for example, still be perceived by victims and the law as racist?

I stress again that I am with you in your opposition to this risible prosecution and conviction; I simply feel your critical reasoning skills are being clouded a little right now by your fury.

Simon Bradshaw said...

Do we know if Mr Chambers is contemplating an appeal? Given that the facts are not in dispute and that there appears to be an issue of interpretation of law of public importance, I would have thought that the appropriate course would be an Appeal by Case Stated to the High Court.

(Yes, he could appeal to the Crown Court, but a rehearing of the case would be of limited value as nobody seems to dispute what happened, just what the law says about it. And it would be good to get the opinion of a more senior court on this matter.)

Flay said...

"Of particular significance is the fact that this “tweet” was posted to the public timeline, unlike most of his “tweets” in the time frame around this particular posting. This message would have been of particular significance to the lady known as “crazy colours” in Northern Ireland to whom the defendant was going to see on his air journey. He chose to post it in the public domain where in theory it was open for anyone to see, as indeed did Mr Duffield."

And there's your appeal. This unreconstructed imbecile of a judge has made a factual error in his summation. Twitter feeds are either all or nothing public, apart from direct messages which can only be sent to a single person. Paul's tweets after his arrest were all locked. Prior to his arrest they were all open. Bennett has absolutely failed to inform himself of the mechanisms involved. Idiot.

Justin Roberts said...

Is there an appeal fund? I'd gladly contribute...

Rik said...

I notice the CPS are on twitter: http://twitter.com/cpsuk

And all they use it for is spamming job vacancies. I see this as an annoying use of a public electronic communications network. Can we charge them under Section 127?

guide_Friday said...

I don't have a legal background, but there's been no/little mention of the public interest as a defence.

I know in other areas cases have been thrown out despite the fact someone has technically broken the law (ie mercy killings).

What is the public benefit of prosecuting someone who did not intend such a threat to reach the target it did, who was not even considering a violent action, who was not malicious, someone making an off the cuff remark?

Will it stop future incidents - NO
Will it protect the airport - NO
Does the punishment fit the 'crime'- NO
Does it make the law look like an Ass - YES
Has this been a waste of money - YES

If helping a relative dying of cancer to end their life is not worth prosecuting, why is giving a criminal record and fine to a bad joke OK?

I'm sure its frightening enough to find two coppers standing at the front door arresting you, and possibly cautioning you for a comment you can't recall- let alone this bunkum on top.

Terence Eden said...

Regarding the "Public Timeline" comment, I have to agree with the judge.

Paul could have sent a DM to CrazyColours - the tweet wouldn't have been public.

Paul could have protected his updates. Only his 600 closest friends would have seen the tweet and - presumably - realised it was a joke.

As for not directing it at the airport - if I set up a website which made grossly offensive accusations about you - but I *didn't* send it to you, is that an offence? It hasn't been sent - but it has been published.

The judgement is still mind-bogglingly daft, but the reasoning about the public nature of the tweet isn't.

Lloyd Jenkins said...

Guidefriday:

Are you asking for a court to set aside primary legislation 'in the public interest'? That's a breadth of constitutional review that's unheard of in the western world.

'Public interest' is normally decided before prosecution, and if I'm not mistaken, "mercy killing" isn't protected by it. As far as I'm aware the most protection offered is non-prosecution when taking a relative to Switzerland.

In all, the legislation seems to be the problem here rather than the judgment, which seems pretty nicely reasoned.

Tevo said...

Not sure why a lot of ppl are focusing on the "intent" element...the legislation makes it pretty clear that the recipient is the person who must perceive a threat to have been made, regardless of the intent of the sender. I think there's a lot more ground to be gained by pursuing the angle of Twitter's rather unique approach to what can be considered in the "public" or "private" domain. Obviously, it's all pretty academic: I can point you in the direction of any number of religious fanatic websites where genuine, non-ironic threats are made on a daily, or more likely, hourly, basis.

Stee Jones said...

@Tevo

The reason why intent matters is that for most serious cases it is the difference between being to blame and being responsible.

For instance, if I accidentally trip somebody up, they fall over, and break their arm then they may have a claim for me for damages, but it is not a crime. That's a civil matter. However, if I deliberately trip somebody up and the same thing happens then that is most definitely a crime and falls under the criminal law.

Now there is a half-way house between and an accident and a deliberate crime and that is where somebody behaves recklessly. For instance, if you cause a death through reckless behaviour it will be treated as manslaughter. If you intended it then that would be murder. Both are crimes, but the degree of culpability is different.

There is another class of crimes which are "strict liability" offenses. There a crime is committed, even if there is no intent or even reckless behaviour. These are (mostly) minor offenses and don't get generally you a criminal record (e.g. minor speeding).

To have an offense where you can get a criminal record yet don't need top show at least reckless behaviour is concerning.

If somebody does unintentionally cause an airport to be closed and this causes a financial loss, then there might be a case for a civil liability for compensation, but that's a different matter. This is why intent matters - it goes to the very heart of natural justice.

Lloyd Jenkins said...

Stee

Isn't sufficient intention in the judgement? In terms of the act, he a) wrote a message that he knew or ought to have know was menacing and b) deliberately put it into the public domain. I don't know much about criminal law, but that would suffice for intention in the 'intentional torts'.

You seem to presume that intention is central to all crime regardless of the quite serious crimes that are not intentional (gun possession, for example); and conflate the tort of negligence with all civil action, many of which involve intention to varying degrees (battery, knowing assistance, etc).

A lawyer (but not one who knows anything about this offence) said...

Isn't the problem with the judgment the conclusion that the message was "menacing".

I assume that the question of whether it was "menacing" or not is to be judged objectively, rather than on the basis of the sender's intention or the recipient's feelings.

Read objectively and as a whole, the message is not menacing, because it is clearly not meant to be taken seriously. A joke is not menacing.

This is not a point about the sender's subjective intention, but about the way in which the message should objectively be understood. If the message itself, read as a whole, is clearly a joke then it cannot possibly be menacing.

A very disturbing prosecution, and a very disturbing judgment.

flay said...

Someone earlier mentioned certain published pieces by the likes of Jan Moir. I made this point when I wrote a letter of complaint to the CPS back in March. You can find it here:

http://flay.jellybee.co.uk/2010/03/cps-v-paul-j-chambers.html

I also argued that the BBC would have committed an offence in 2005 when it broadcast Jerry Springer the Opera. I'd love to hear your thoughts on that.

Tom Evans said...

http://www.youtube.com/watch?v=BsISfQAXE60

Breaking:
Sophie Ellis-Bextor to be visited by police over lyrics in song.

ajohnson said...

It is astonishing that the tweet could be considered menancing beyond reasonable doubt.

There is a question of what type of potential recipient should be used to judge the menancing character of the message but is dificult to see any reasonable recipient seeing it as a credible threat. Even the professionally paranoid airport security did not see it in this way. If it is not credible then how can it be menancing?

The judges reference to the context of the times is disturbing because objectively the threat from terrorist attack is exceptionally low. I grew up when terrorist attackes resulting in multiple deaths or serious injuries were common place in England. They are now, happily, extremely rare. What is at a high level is scare based policical messages about terrorism and newspaper scare stories. The criteria used to convict has therefore been influenced by politics and newspaper stories not by objective evidence and that is very worrying.

phisheep said...

It seems to me that the judge's main error fell in determining that the message was of a menacing character based on the last few words.

The test in the statute is whether 'the message' is of a menacing character. Not 'part of the message', not 'the last few words'. It is clear from the House of Lords that context is all - and 140 characters is not a whole lot of context to take into account.

By selective quotation the judge has made a persuasive paragraph in his judgment that would not be persuasive at all had he quoted the entire tweet there.

It is not, for example, menacing at all (merely emphatic, to stress a point) to suggest in an analytic comment on this blog post, even without quotation marks, that this particular judge needs a rocket up his backside.

Madam Miaow said...

So the terrorists won?

Martin Budden said...

I think they won some time ago.

In the US, a 14 year old boy in a special needs calls has been charged with making "terroristic threats" (a felony charge in the US) for drawing a stick figure of himself pointing a gun at his teacher. Clearly he needs to be reprimanded, but this should be done within the school system, hot under terrorist legislation.

http://www.myfoxatlanta.com/dpp/news/14-year-old-autistic-boy-charged-051210

Marjorie said...

WokStation & Rjh01

intent or mens rea can be inferred - usually it is along the lines of "Would a reasonable operson in D's situation have known that what they did was likely to cuase x" - so if you put cyanide in someone's tea, you cannot then argue that you did not intend to hurt them, as any reasonable person would know that poisoningthem them would cause serious harm.
However, if you put honey in their tea becasue you've run out of sugar, not knowing they have a rare but potentially fatal honey allergy, you do not not have any intent to harmm them, as not only did you now mean to do them any arm, no reasonable person in your shoes would or could have known that what they did would caue harm.

It is similar to the idea (in law relating to negligence and civil wrongs) about whether the outcome of your actions is reasonably forseeable.

In this case, I think the mens rea of the offence - the intent - would be made out if the Judge was satisfied either that Mr Chambers ACTUALLY intended his words to bemenacing to the airport, or if a reasonable, objective person would see them that way, in which case it can be inferred that he knew, or ought to have known , that they would appear menacing.

Since this is a criminal case, the Judge had to have been satisfied of that "beyond a reasonable doubt" - I think this is where the Judge erred in fact and law.

In fact, it is clear that people were NOT menanced - and since the secirity at the airport, the police and the 600 people who were following Paul on Twitter must be assumed to be "reaspnable people", none of whom appear to have thought the message was offensive or menacing, it seems to me that the Judge was wrong to conclude that it was proven beyond reasonable doubt that the message was manacing.

I think he can also be said to have erred in fact in that he took into account the 'fact' of the context of the "times we live in" (although when have there not been terrorist threats of one kind or another?) but failed to take into account the context of the medium in which the message was sent and the way in which it is used, and is understood by it's users.

Tom Evans said...

There are four main types of mens rea in English Law, which are in order of level of intent: specific intent, recklessness, negligence, and strict liability.

What you've described above Marjorie is negligence: whether the reasonable person would realise something.

In DPP v Collins Lord Bingham seems to say at para 11 that actual specific intent to be grossly offensive is necessary. This is an entirely subjective test.

However, the rest of the judgment in that case seems to deviate from this, as it's not at all clear that Collins did intend his message to be grossly offensive and Lord Bingham goes back to referring to how decent people would view it. His conviction was then upheld on that basis.

With respect to Lord Bingham, I find that a bit confusing.

Ben Aldin said...

It is interesting to juxtapose this case with the CPS behaviour in the Ian Tomlinson case.

In the Twitter message case the CPS have done everything they can to punish a totally harmless man for a harmless joke. In Tomlinson the CPS did everything it could to let an unprovoked serious assault by a police officer go unpunished.