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  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  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.
District Judge (Magistrates Court)
10th May 2010
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