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Sunday, 26 September 2010

The Appeal of Paul Chambers


The first part of the appeal of Paul Chambers was heard by Doncaster Crown Court on Friday 24 September 2010.

It had been hoped that a decision could have been made on the day, but that turned out not to be possible, and so the case will be concluded on a day yet to be decided.

This blogpost includes a fair and accurate account of what was heard in court on Friday.

However, I do need to declare an interest. I am now formally one of Paul's legal representatives. And, as a solicitor, I am an "officer of the court" owing duties to the court in an ongoing case. For these reasons I am therefore not in a position to blog about this case as if I were - say - just sitting in the public gallery or on the press bench.


Chronology

Based on both the evidence heard at court and statements in the public domain, the following sequence of events in this case can now be established.


6th January 2010
Paul uses the Twitter website to create and send a message to his followers:

“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!!”


11th January 2010
The tweet is found in a search of the Twitter website by the Airport Duty Manager (ADM).

The court heard on Friday that the ADM did not and does not have a Twitter account and was searching Twitter for Robin Hood Airport (RHA) on Twitter whilst off duty. The reason for this search was not security-related but because he had heard that RHA had a Twitter account and he wanted to see what it looked like. He was thereby not searching for threats nor expecting to see one.

When Paul's tweet came up as a search result, the ADM did not know whether it was a joke or not. And in his short witness statement he twice mentions the word "jest". In any case, it was not for the ADM to assess the risk, if any, of what he had found and so he alerted his more senior colleague who was responsible for making such an assessment. He copies the tweet into an email and sends it to the Station Manager (SM).

The SM reviews the tweet and grades it as a "non-credible threat". However, it is passed on to the Special Branch stationed at the airport.

In his evidence before the court, the ADM confirms that the tweet did not have any operational impact on RHA.


13 January 2010 (afternoon)
Some two days after the tweet is referred to the police at the airport, the police at Doncaster Police station are informed (presumably by the Special Branch stationed at the airport). Paul's barrister Stephen Ferguson emphasised in court this two day delay as evidencing the complete lack of menace felt by those first dealing with the matter.

Two officers from Doncaster Police station attend Paul's workplace and arrest him "on suspicion of making a bomb threat against Robin Hood Airport" (that is under the 1977 bomb hoax offence). His telephone, keys, and a Tesco Club Card are seized.

Paul is taken to Doncaster police station for questioning.

Later that afternoon, police make their first printout of Paul's tweets for the relevant period. It is not clear whether the print-off use UK or US timings, and no print-offs are made of other Twitter accounts which would contextualise the exchanges relevant to Paul's original tweet.

Paul is then interviewed by two Detective Constables (but not those who arrested him). It appears these are specialised police officers. Paul is questioned for over two hours (with a break). Paul consistently denies any wrongful intent and repeatedly explains that the tweet was merely a joke.

The police appear to accept Paul's account. The police case file states:

"There is no evidence at this stage that this is anything other than a foolish comment posted on Twitter as a joke for only his close friends to see."

For some reason, the CPS did not disclose this file note at the original trial and it was only disclosed to the defence for the appeal on 23rd August 2010.


So, as Stephen Ferguson told Doncaster Crown Court, it appears that the person who found the tweet did not know whether it was a joke or not but was duty bound to refer it to the person whose job it was to evaluate it; the person who evaluated it rated it as not having any credibility but passed it on to airport police as he did with all such evaluated material; there is a delay of two days; and then police on investigation of the matter, and after interviewing Paul, said they had no evidence that it was anything other than a joke meant for only his close friends to see.

After his police interview, Paul is released on bail to attend Doncaster Police Station on 11th February 2010.

In a later statement, the police's press office explain why and how the matter is transferred to the CPS (however, please note these press office statements were not mentioned in court, and not part of the defence or prosecution, but are public domain statements set out in my article here):

“The Force take such misuse of these sites seriously and will take robust action to deal with those who choose to use them in such a way as to cause unnecessary alarm and distress to members of the public.


“There was huge public and media interest in this case. Whilst the investigation and collation of evidence was straightforward, due to the wide-spread interest in the use of Twitter in this way, the case was referred to CPS to make the decision on disposal. Based on this “public interest test” it was not appropriate for police to make this decision.

“The CPS themselves could have decided on a caution, but based on the evidence and the public interest they decided to charge in this case, a decision that the police feel is appropriate.”



So at some date before 11th February 2010 the CPS decide to charge Paul Chambers under section 127 of the Communications Act 2003 (and not the bomb hoax offence for which Paul was originally arrested). In statements again provided for my article here (again this is not evidence in the appeal, but public domain statements), the CPS press office stated:

“While Mr Chambers may have meant this as a joke, the airport could not risk treating it as such. The threat had to be taken seriously by the airport authorities, who contacted the police. It caused unnecessary disruption because of a menacing communication.


“The police and the CPS, in the current climate, take any hoaxes very seriously. In the wake of the 7/7 bombings in London, for example, there were a number of bomb hoax cases around the country which resulted in prosecutions under various acts, mainly the Criminal Law Act or the Public Order Act.

“Section 127 of the Communications Act 2003 was considered to be the correct charge in the particular circumstances of the case. Under 127(1) an offence is committed where suspect sends by means of a public electronic telecommunications system a message or other matter that is “grossly offensive, or of an indecent obscene or menacing character”. A message can be any of these (rather than having to be all of them) and the message in this case was clearly of a menacing character.

“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.”



11th February 2010
Paul attends Doncaster Police Station, where he is charged with an offence under section 127 of the Communications Act 2003. He is then bailed to attend Doncaster Magistrates' Court on 19th February 2010.


19th February 2010
Paul pleads guilty after the CPS (wrongly) tell the court and the defence that section 127 is a strict liability offence. The case is adjourned for sentencing.


2nd March 2010
I publish my Lawyer article here criticising the decision to use the section 127 offence. In particular, I am highly critical of the CPS decision to try and prosecute the section 127 offence as a "strict liability" offence, not requiring proof of wrongful intention. (My day job is as a media and communications act lawyer and so I was luckily able to spot from the press reports that the CPS had used the section 127 offence and this immediately troubled me.)

As consequence of my article, Paul seeks to change his plea from guilty to not guilty. He can do this as he had not at this point been sentenced.


12th March 2010
Paul instructs new solicitors, and the court is told that he is now seeking to vacate his plea. The case is adjourned.


15th March 2010
The Magistrates' Court accepts Paul's application to vacate his plea (see here and here).


10th May 2010
The case is reheard. The CPS again try to prosecute the case as not requiring proof of intent, but submit there would be sufficient proof of intent in any case.

Paul is found guilty by the District Judge. The judgment is here and the sentencing decision is here.

Paul then decides to appeal and invites me to co-ordinate his defence. I ask Stephen Ferguson, one of the UK's most sought-after defence barristers, if he would be willing to help. Stephen and I then start working on the defence, along with with Paul's criminal solicitor Richard Haigh.


23rd August 2010
The CPS disclose to the defence the police assessment of the evidence.


24th September 2010
The appeal begins at Doncaster Crown Court before a circuit judge and two lay magistrates. The CPS concede that section 127 is not a strict liability offence and that they do need to show wrongful intention.

After the prosecution case concludes, Stephen Ferguson makes a "half time submission" that the CPS has not made out a case for the defence to answer.

The case is then adjourned for the court to consider the defence application. Because the bench includes two lay (that is, not full-time professional) magistrates, the date on which the case will resume may not be until October/November.


The defence case

The basis of the defence case has three parts: that the message was not of a menacing character (ie, there is no "actus reus" in legal jargon), that it was not sent with the intention of communicating a message with a menacing character (ie, no "mens rea"), and that it was not a message anyway covered by section 127 of the Communications Act 2003.


Actus Reus

The defence submitted that, regardless of intent, that the message was simply not of a menacing character.

It was not menacing on its own terms: it was self-evidently facetious and hyperbolic; it was not addressed or sent to RHA; it used exclamation marks and was in jokey, parody language. Indeed, on its own terms, it was no more threatening than Sir John Betjeman's famous line calling for the bombing of Slough.

This lack of menacing character is confirmed as one looks at all the surrounding circumstances: it was sent only to the 600 or so followers who had chosen to receive tweets of this nature; it was in the context of tweet exchanges about Paul seeking to visit a new girlfriend and so was in course of a bantering exchange of which the followers would be aware; and there is no evidence that any of Paul's followers interpreted it as having any menacing character.

Furthermore, even the ADM who found the tweet accepted that it could have just been a jest; the SM rated it as having no credibility as a threat; and the police accepted it was a joke meant only for friends.

So regardless of intent, the defence submitted that the prosecution has not shown that the tweet had the "menacing character" to begin with.


Mens Rea

The defence also submitted that Paul did not have any intent to send a menacing message.

In his police interviews he consistently explained it was intended only for his followers. His tweet named the airport which had closed as a result of snow, but it was not directed at the airport nor was there any reason to believe the airport or any other person would regard his tweet as anything other than a joke.

The CPS seem to accept that it was not directed at the airport.

If so, the remaining issue as to mens rea is whether the risk that someone would be menaced “must have been recognised by the sender” (the relevant legal test).

It was submitted by the defence that the extensive interviews (two separate interviews lasting an hour and eleven minutes in total) clearly demonstrate that Paul had no foresight whatsoever of any such risk.

Here, the defence state that Paul began his police interview with a lengthy voluntary statement without any intervention from his solicitor in which he stated:

“…now not for one second did I, you know it was meant as a joke…. within the context of my Tweet it was actually kind of humour, I mean looking back it’s daft now, but that’s you know my kind of dry humour… I didn’t realise, not for one second did I think that anyone would even look at it… it’s just a jokey comment made off the back of the frustration that the flight’s been grounded… like I say not for one second did I ever think that Robin Hood Airport themselves would ever be looking and ever take it seriously because that is, that was not the intention at all…”

Paul made similar comments throughout the two interviews. It was submitted by the defence that it is quite plain that the appellant made the comment as a joke and did not think for a moment that anyone would be menaced by it. It is important here to note that the legal test is that the risk “must have been recognised by the sender”, not should have been recognised.

It is a subjective test, and it is submitted that the test is not met by the evidence in this case.


Section 127

Finally, on a technical point, the defence submit that the message was not one sent by means of a public electronic communications network in view of the definition of "public electronic communications network" used by the House of Lords.


The next step

When the hearing is resumed, it is likely that the court will give its decision on the defence "half time" application to strike out the case.

If that application is unsuccessful, the defence will then present its case, including calling Paul to be examined. Paul would then be cross-examined by the prosecution. The hearing should not last more than another day, though any judgment might then be reserved.


COMMENTS MODERATION

As this is a live case, it may well be that I will not publish comments which I see as inappropriate at this stage.

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

13 comments:

loudmouthman said...

A Side Question here if I may: If it is not the duty of a member of the public to asses security risks. Why then are we admonished on our journeys to report them ?

Schroedinger99 said...

To those who follow my tweets/blog/comments/forum-submissions I realize that I must be beginning to sound like stuck record, but I'm assuming that this latest (excellent) post by David will receive some new attention.

I have been taking an (purely lay) interest in the 2003 Communications Act for some years. The Act is very wide ranging, but a key feature of the Act is that it provides powers to Ofcom (and thus to their delegates in this matter "PhonepayPlus") in the efforts of these bodies to police all kinds of fraud using and misuse of telecommunications technology.

Now the curious thing is that not only have the powers granted to the police and the two above-mentioned regulators by this Act never been used to persecute anyone engaged in premium rate based fraud, PhonepayPlus (in particular) have repeatedly cited this act as the reason they cannot take action against those engaged in premium rate fraud. (see http://badreason99.blogspot.com/2010/05/paul-chambers-phonepayplus-and-perverse.html)

Unsolicited reverse charge SMS is by far the biggest source of complaints to PP+, but PP+ insist that this practice is NOT illegal under the 2003 Act.

This begs an (ok slightly facetious but) interesting question: If Paul had teamed up with a "service provider" and sent his "message" directly to Robin Hood Airport as an unsolicited reverse charge text (SMS) - instead of as a tweet - would the legal authorities have pounced? If they had pounced, would they not have found themselves in an ever so slightly embarrassing position? ...... Wouldn't this have been a bit like when Al Capone was prosecuted for income tax evasion?

DrBob said...

Great post, thanks.

I'd query one point though.
You say "it was sent only to the 600 or so followers who had chosen to receive tweets of this nature".

On the face of it, this doesn't really tally with the nature of Twitter (maybe I've missed something). An important aspect of Twitter is the openness of the Twitter public timeline. Unless I protect my tweets, the default behaviour for them is that they are publicly available (which is why the ADM could happen across them)

While Paul's tweet appears to me, from the evidence I've seen on the Internet, to be obviously in jest, I think it would be unreasonable for anyone to walk away with the view that what you tweet only goes to your followers. I wonder whether regular tweeters maybe lose sight of that aspect of the Twitter dynamic.

Twitter is better regarded as microblogging rather than microemail. Less like chatting with a bunch of your mates at home, more like shouting to them across a bar filled with strangers.

As I'm not a legal-eagle I've no idea whether ignorance of the behaviour of a particular piece of social media software would be a defence - it seems to me that this case doesn't need it to acquit he accused.

Protected, direct and '@' messages add various shades of privacy and intent to messages.

I'm hoping that the law would treat a basic/default tweet in the same way as a blog posting (simply on the basis of consistency). I'm not sure what the law is there but I'd hope that if someone (e.g.) incited racial hatred there, they would be open to prosecution.

DrBob

ObiterJ said...

I find it worrying that the CPS persisted for so long with their view that s.127 does not require mens rea.

It is also worrying that the Crown Court did not deal with the half-time submission on the day. The wheels of justice turn far too slowly these days. By the time this case is concluded almost a year will have passed.

I consider the whole prosecution to be an abuse of process - setting out to make an example of someone. Here we have a man of good character who was arrested after a considerable delay. He is then arrested and questioned for 2 hours. That alone ought to be enough.

Altogether a very worrying case.

Bruce said...

Hi there,
I noticed the following article on BBC today. Sounds to me like they need a primer in this case - the first line says that Paul Chambers threatened to blow up the airport.
As I understand it, everyone agrees that he didn't actually really _threaten_ anything (i.e. a threat has got to have an element of credibility to it, and has got to be directed at someone who cares)
http://www.bbc.co.uk/news/uk-england-south-yorkshire-11408239

Mike from Ottawa said...

Perhaps the CPS can be charged with wasting police time. :-)

Roy Badami said...

I'm interested to know how the proper mens rea test is determined, when it's not explicitly specified in legislation.

By way of example, I'm curious about the case of the young woman who was prosecuted some years ago for resting her feet on the seats of a railway carriage.

The relevant legislation is byelaw 6(8) of the Railway Byelaws:

"No person shall molest or wilfully interfere with the comfort or convenience of any person on the railway."

In the event she pleaded guilty and was given an absolute discharge. But what is the mens rea test for this byelaw? In the absense of clear intent to cause damage or inconvenience, has any offence actually been committed?

http://news.bbc.co.uk/1/hi/england/merseyside/6977871.stm

-roy

Dave said...

It occurs to me that it is most unlikely that the case notes have not been transmitted at some point 'via a public electronic communications network' such as email by the CPS. A FOIA request would force them to disclose whether they have at any point emailed the offending Twitter joke themselves; under strict liability, they will be equally guilty, so it will be equally in the public interest to prosecute their own legal team.

One would hope that the judge hasn't emailed the papers home to work on over the weekend, or he's going to have to be tried as well.

Kimpatsu said...

@ObiterJ:
This is an example of the First law of Holes. Having decided that they had to "get" Paul Chambers, they then went fishing for a statute that might have some relevance, and no cannot back down without admitting that they were wrong to pursue an innocent man in the first place, as this would necessarily mean that the CPS does from time to time pursue innocent people, which is contrary to the public image they desire to present that they only ever charge guilty people, and to them, a charge is identical to evidence of guilt. IOW, the whole house of cards will come tumbling down if they withdraw now, and so, despite being in an ever deeper hole, they have to keep digging. I'll also bet you that when Paul is eventually acquitted, there will be a CPS spokesperson on the steps of the courthouse saying that they are "disappointed in the result, but we did what we thought was right", and that it's important they send a message to anyone considering bombing RHA--thereby evading the real issue.
What odds will you give me on this sequence of events?

Mark said...

Nice review - JoK. I think when it comes to the matter of knowing it to be menacing, then it's very tricky ground. As a joke, it required Paul to pretend to be threatening, hence the 'get your shit together'; it was a joke of the 'characterisation' type. This type of joke is just as much a joke, and the joke elements are all there to reinforce it. A plain threat runs along the lines 'I am going to bomb Robin Hood Airport unless they keep it open'.

So, I would say that 'intent to menace' is a tricky one, because it's tied up in the nature of the joke, and strip the joke of its context and cartoon padding, and the essence or device is basically a threat, or what I have called 'waving a banana around as if it was a gun'.

But arguing with judges about the intricacies of humour is no easy matter, I'm sure. I think it has to be admitted there was menace in the words, but that in the context of the joke, the menace was rendered harmless, in the same way that Tom and Jerry usually ends with Tom in a minced heap. Bombs have been part of vocabulary of jokes and joke characterisations for decades, probably centuries, as have transport delays.

JP said...

This is probably the reason the CPS is doing this:http://zabanana.blogspot.com/2010/09/why-is-twitterjoketrial-important.html

JP said...

If you look at the BBC article http://www.bbc.co.uk/news/uk-england-south-yorkshire-11408239 you'll see how one sided and histerical the article is.
Sad really.

Warren said...

When is Paul next in please David? Neither the court or the local press are forthcoming.
Thanks