Below is a copy - with some links added - of the "case stated" by Doncaster Crown Court in respect of the appeal by Paul Chambers to the High Court. This sets out the facts and law which the Crown Court believes are relevant to the conviction and the appeal. At the end of the case stated are the questions which the Crown Court wants the High Court to answer.
The document is issued by the Crown Court, but is informed by legal representations by the defence and the CPS. (Please note that I am solicitor for Paul Chambers in this appeal.)
IN THE CROWN COURT AT DONCASTER
R E G I N A
APPEAL BY CASE STATED
1. This is an appeal by Case Stated under section 28 of the Senior Courts Act and Rule 64.6 of the Criminal Procedure Rules (S.I. 60 of 2010). The Crown Court extended the time limit to the 10th March 2011 pursuant to Rule 64.7 of the Criminal Procedure Rules 2005 (S.I. 2005 No 384)
2. On 10th May 2010, the Appellant was convicted by District Judge Bennett sitting at Doncaster Magistrates' Court of a single offence of sending, by means of a public electronic communications network, a message of a menacing character, contrary to sub-sections 127(1)(a) and (3) of the Communications Act 2003 ("the 2003 Act"). The Appellant was sentenced to a fine of £385 and ordered to pay a victim surcharge of £15 and £600 costs.
3. An appeal was heard on 24th September and 11th November 2010, before HHJ Davies and two lay magistrates sitting at Doncaster Crown Court.
4. At the close of the Prosecution case on 24th September 2010, the Appellant's counsel made a submission of no case to answer. The Crown Court reserved judgment and the appeal was adjourned until 11th November 2010. HHJ Davies then handed down a written judgment on the submission, concluding that there was a case to answer.
5. The Appellant gave evidence and was cross-examined. The Crown Court heard closing submissions then retired. Later that day, the Crown Court upheld the conviction and the fine. The Appellant was also ordered to pay a victim surcharge of £15 and £2,600 costs (including the £600 costs in respect of the Magistrates' Court hearing).
6. Section 127 of the Communications Act 2003 provides:
Improper use of public electronic communications network
(1) A person is guilty of an offence if he –
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he –
(a) sends by means of a public electronic communications network a message that he knows to be false;
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(4) Sub-sections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).
7. There is no reported case in respect of prosecution for the offence of sending by means of a public electronic communications network a message or other material of a menacing character.
8. Guidance in relation to the scope of Section 127(1) was provided by the House of Lords in the case of DPP v Collins  UKHL 40 on appeal from the Divisional Court  EWHC 1308 (Admin). In Collins, the conviction was in respect of sending by means of a public electronic communications network a message which was “grossly offensive.”
9. However, Sedley L.J. at paragraph 10 of the judgment of the Divisional Court, provided the following obiter definition of "menacing":-
A menacing message, fairly plainly, is a message which conveys a threat – in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen. Here the intended or likely effect on the recipient must ordinarily be a central factor in deciding whether the charge is made out.
10. His Lordship also stated, at paragraph 9, that "Here, as elsewhere, context is everything" and that the objective of the legislation was to protect people against unsolicited messages of the kind prohibited by Section 127(1). He said in paragraph 11 of his judgment:
If (as I will assume) these are the respective meanings of menacing, obscene and indecent messages in the communications legislation, the category of grossly offensive messages can be seen to lie somewhere near the centre of the spectrum. What is offensive has to be judged (very much as the justices, by considering the reaction of reasonable people, judged it) by the standards of an open and just multi-racial society. So too, therefore, what is grossly offensive, an ordinary English phrase with no special legal content which on first principles (see Brutus v Cozens  AC 854) it is for the justices to apply to the facts as they find them. Whether a telephone message falls into this category has to depend not only on its content but on the circumstances in which the message has been sent and, at least as background, on Parliament's objective in making the sending of certain messages a crime.
11. In the House of Lords, Lord Bingham expanded that general proposition as to context by referring to changing standards of society in his conclusions at paragraph 9:
The parties agreed with the rulings of the Divisional Court that it is for the Justices to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances. I would agree also. Usages and sensitivities may change over time. Language otherwise insulting may be used in an unpejorative, even affectionate, way or may be adopted as a badge of honour ("Old Contemptibles"). There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.
12. Lord Bingham also set out, at paragraph 11, the mens rea required for the offence of sending a grossly offensive message:
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.
In defining mens rea, Lord Bingham, at paragraph 11, accepts the submission of Crown counsel that "the defendant must intend his words to be grossly offensive to those to whom they relate or be aware that they may be taken to be so".
At paragraph 8, Lord Bingham set out the actus reus of the offence as the "sending of a message of the proscribed character by the defined means".
Guidance was given by Lord Bingham as to the compatibility of Section 127(1)(a) with Article 10 of the European Convention at paragraph 14: "The restriction (of freedom of expression) is clearly prescribed by statute. It is directed to a legitimate objective preventing the use of a public electronic communication network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end."
13. The Appellant was 26 at the time of the matter for which he was convicted and was of hitherto good character. He is well educated and there is no evidence that he is anything other than of sound mind.
14. The Appellant held a responsible job as an administration and finance supervisor. He had been in constant employment since completing his education. In recent times, the Appellant has undertaken tasks with a greater degree of responsibility and he told the Crown Court that he would not knowingly risk his job. However, in consequence of the arrest and then conviction by the Magistrates' Court, the Appellant was suspended and eventually dismissed.
15. The Appellant was, and is, a registered user of the "Twitter" social networking platform, which is owned and operated by Twitter Inc., an American corporation. Typically, a registered user accesses "Twitter" by means of the internet.
16. Each registered user has to adopt a unique user name. The Appellant used his own name for this purpose, and was registered as "@PaulJChambers". He also used his own photograph as his account picture.
17. “Twitter” enables its users to post messages (of no more than 140 characters) on the “Twitter” internet site. These messages are called "tweets", and they can be opinions, facts, descriptions of what the user was doing, or can contain any other information the user may wish. Users of “Twitter” can be "followed" by other “Twitter” users who find that user interesting or informative. “Twitter” users often enter into conversations or dialogues with other users.
18. Depending on how a user posts their “tweets”, others can see the “tweets”. A "public timeline" of a user shows the most recent “tweets” posted (25 or thereabouts) by a user. The followers of a “Twitter” user will see messages of that user unless they are addressed to another “Twitter” user, in which case the message will then only be seen by the user posting the “tweet”, the user to whom the “tweet” is addressed and their mutual followers. Most “tweets” remain visible to the user and his/her followers for a short period of time before being replaced by more recently posted “tweets”.
19. It is possible for non-users to access these "timelines" and read the messages should they visit the “Twitter” site. It is also possible for a limited period of time for non-users to use the search facility of “Twitter” to find “tweets” that contain certain search terms.
20. The Appellant met “Crazy Colours” on line and communicated with her on “Twitter”. “Crazy Colours” is the “Twitter” username of a female user living in Northern Ireland (and she has been referred to by this pseudonym throughout the court proceedings). They then met in person, and he was planning to see her again. It was obviously a relationship then in its early stages. It became an important relationship and he was living with her at the time of the appeal to the Crown Court. The Appellant was due to fly to Belfast from Doncaster Robin Hood Airport to meet “Crazy Colours” on the 15th January 2010.
21. On 6th January 2010, the Appellant and “Crazy Colours” were having a dialogue or conversation on “Twitter”.
22. As part of this dialogue or conversation, the Appellant posted two messages which were to be referred to at the Crown Court appeal. These messages were "@CrazyColours I was thinking that if it does then I've decided to resort to terrorism" and "@CrazyColours. That's the plan! I'm sure the pilots would be expecting me to demand a more exotic location than NI". These messages are not the subject of the conviction and did not form part of the charge. They were not put before the Magistrates' Court, although they were produced by the Prosecution at the Crown Court. No “tweets” sent by “Crazy Colours” at this time were produced by the Crown at the Crown Court and no evidence was put before the Crown Court as to the context of these two “tweets”.
Both these messages were addressed to "Crazy Colours".
23. Later, on 6th January 2010, Doncaster Robin Hood Airport was reported as being closed due to adverse weather conditions. The Appellant became aware of the closure through an alert on “Twitter”. In response to hearing of this closure of the airport, the Appellant posted the following “tweet”:-
Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I am blowing the airport sky high!
In evidence, the Appellant denied that there was any link between the messages set out in paragraph 22 and the message, the subject of the charge which was sent two hours later. When asked why he made reference to terrorism in his private messages, he said, "I never thought about it".
In evidence, the Appellant denied that he had posted the message, which was the subject of charge, onto the public timeline so as to ensure that it received general attention, rather than directing it to "Crazy Colours" as his other messages had been.
24. This “tweet” is the subject of the charge and conviction.
25. The Appellant stated that he had been frustrated by the potential cancellation of, or interference with, his plan to visit Belfast to see “Crazy Colours”, and he stated that his followers would have been aware of the importance to him of his relationship and would appreciate his exasperation. The Appellant stated, in police interview and under cross-examination, that he had intended the “tweet” as a joke and that it was not intended to be menacing. The Appellant said he did not see any risk at all that it would be so regarded. He said that, if he had, he would have not posted it. His counsel referred to the “tweet” as a “hyperbolic statement of exasperation.” The Appellant, when asked in interview if he was aware that some people might get a bit jumpy said, “Yeah. Hmm mmm.”
26. No evidence was put before the Magistrates’ or Crown Court that any of the Appellant's followers (or any other person who may have seen the “tweet” posted on the Appellant's timeline) found it to be of a menacing character or in any way alarming.
27. However, this “tweet” was found by Mr Duffield, the duty manager for Robin Hood Airport, whilst he was off duty on 11th January 2010. Mr Duffield did not see it on the Appellant's timeline. Mr Duffield was at home searching “Twitter” for “tweets” containing references to Robin Hood Airport. Mr Duffield's evidence before the Crown Court was that he was responsible for security at the airport. He said that the security level was, at that time, graded as “substantial”, which is the third highest level of a possible five. Mr Duffield said, in cross-examination, that he did not know whether the “tweet” he had found on his search was a joke or not.
28. Mr Duffield referred the “tweet” to his manager, Mr Armson. It was the responsibility of Mr Armson to grade any perceived threat as either “credible” or “non-credible”. A “credible” threat is referred to the Ministry of Defence, but it is airport procedure that even a “non-credible” threat must be reported to the airport police. Mr Armson assessed the Appellant's “tweet” and graded it as “non-credible” as it featured the Appellant's name, and he noted that the Appellant was due to fly in the near future. However, in accordance with airport procedure, he passed the “tweet” to the airport police who also took no action other than referring the matter to South Yorkshire Police.
Mr Duffield qualified this by saying that he did not know, that it could have been a “credible” threat and that even jokes could cause major disruption and had to be investigated.
Mr Armson, Airport Manager, stated that all threats are treated as serious.
29. On 13th January 2010, the Appellant, who was then at his workplace, was arrested for a suspected bomb hoax, under the Criminal Law Act 1977 and he was interviewed under caution. He repeatedly stated that he had meant the “tweet” as a joke and did not have any wrongful intent. D.C. Lighton, one of the investigating officers, recorded the following comment on the South Yorkshire Police Crime Management System on 10th February 2010, four weeks after the defendant’s arrest and interview:-
Male detained re making threats to Doncaster Robin Hood Airport. The male in question has been bailed and his phone/computer has been seized – there is no evidence at this stage to suggest that this is anything other than a foolish comment posted on “Twitter” as a joke for only his close friends to see.
30. However, the police sought the advice of the Crown Prosecution Service, and, as a result of their advice, the Appellant was charged with an offence under Section 127(1)(a) and (3) of the 2003 Act.
THE GROUNDS OF APPEAL AT THE CROWN COURT
31. The Appellant appealed to the Crown Court by a Notice of Appeal dated 18th May 2010, which listed the grounds of appeal as:
a. the message was not menacing within the meaning of the statute;
b. the Appellant lacked the necessary mens rea; and
c. the message was not sent by a public electronic communications network.
FINDING OF THE CROWN COURT AS TO ACTUS REUS
32. The Crown Court held that whether the message was of a menacing character in its terms is a question of fact for the Court.
33. In the judgment rejecting the submission that there was no case to answer, the Court stated that it was “satisfied to the appropriate standard that the words contained in the message speak for themselves; there is no ambiguity. This case is in stark contrast to the example of the "Old Contemptibles" given by the House of Lords. The message was sent at a time when the security risk was substantial and when all threats of whatever level were reported to the police for investigation, as was the case here”.
34. In dismissing the appeal, the Crown Court stated that it was “satisfied, on the evidence, that the message in question is menacing in its content and obviously so. It is difficult to imagine anything more clear. It fits the Oxford English Dictionary definition and the observations of Lord Justice Sedley, to which we have earlier referred. It is, in our judgment, menacing per se”.
35. The Crown Court held that the offence does not require the message to be seen (and there was no evidence before the Court that anyone other than Mr Duffield saw this particular message). The Court stated that it took the view that an ordinary person seeing the “tweet” would see it in that way and be alarmed. The airport staff did see it and were sufficiently concerned to report it.
36. The Crown Court also held, when rejecting the submission of no case to answer, that no question of Article 10 rights can arise here as the right is qualified when "necessary ... in the interests of national security, territorial integrity or public safety".
FINDINGS OF THE CROWN COURT AS TO MENS REA
37. In rejecting the submission that there was no case to answer, the Crown Court held that there was evidence which was capable of proving the necessary mens rea. This was a message which was on a website which the public was freely able to access. It was accessible not just to the airport staff but also, potentially, to prospective passengers who might well have been alarmed by what they saw. An experienced security officer, by reason of his job, may be better able to form an opinion about the nature of any threat and the level of risk than members of the public, but the Court could not overlook the fact that this was a message posted on a site to which all members of the public had access. The Court held that the responses of the Appellant in interview, which were self-serving, were irrelevant to this issue. There was evidence that, at the very least, the Appellant must have been aware that this message may so be taken, as he had earlier that day posted two seemingly related messages to “Crazy Colours”.
38. In its reasons for dismissing the appeal, the Crown Court held that the required mens rea for this offence is that the person sending the message must have intended the message to be menacing, or be aware that it might be taken to be so. The Appellant was 26, well educated and in a responsible job and there was no evidence that he was anything other than of sound mind. The Court found the Appellant to be an unimpressive witness and found it impossible to accept that anyone living in this country, in the current climate of terrorist threats, particularly at airports, would not be aware of the consequences of his actions in making such a statement. Furthermore, the Court was satisfied that he, as an experienced user of “Twitter”, made a deliberate decision to post this message on the public timeline of “Twitter” on the very day he sent seemingly related messages to “Crazy Colours” and within two hours of posting them. The Court did not accept his evidence that he was unaware of television news and newspaper reports at the material time. The Court was satisfied that the Prosecution had proved the necessary mens rea and that the Appellant was, at the very least, aware that his message was of a menacing character.
THE QUESTIONS FOR THE HIGH COURT
(1) In order to prove that a message is "of a menacing character" within the meaning of Section 127(1)(a) (read according to conventional canons of construction or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998) is the prosecution required to prove, as part of the actus reus of the offence, that the person sending the message intended, "to create a fear in or through the recipient" (per Sedley LJ in Collins supra) or, were we correct to conclude that the question whether a message is "of a menacing character" is an objective question of fact for the Court to determine?
1(a) In order to prove that a message is of a "menacing character" within the meaning of Section 127(1)(a) (read according to conventional canons of construction or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998), is the Prosecution required to prove that the person sending the message intended to create a fear in or through the recipient (Sedley L.J., in Collins, supra, having defined a menacing message as "a message that conveys a threat ... which seeks to create a fear in or through the recipient that something unpleasant is likely to happen”) or were we correct to conclude that the question of whether a message is "of a menacing character" is an objective question of fact for the Court to determine applying the standards of an open and just society and taking account of the words, context and all relevant circumstances?
1(b) Is the actus reus of the offence (Lord Bingham in Collins supra), "the sending of a message of the proscribed character by the defined means", as we found, or does the actus reus include a requirement that the person sending the message intended the message to "create a fear in or through the recipient"?
(2) What is the mens rea for an offence of sending a message of a menacing character contrary to Section 127(1)(a)? In particular:
(a) Is Section 127(1)(a) (read according to conventional canons of construction or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998) a crime of specific intent?
(b) Is the Prosecution required to prove as part of the mens rea of the offence that the person sending the message intended to put another person in fear?
(c) If the answer to (b) is no, is it sufficient for the Prosecution to prove that the person sending the message realised that his message may or might be taken as menacing, or must the prosecution prove that he realised that it would be taken as menacing by a person of reasonable firmness aware of all the relevant circumstances?
(3) Did the Court act lawfully (within the meaning of Section 6 of the Human Rights Act 1998) in convicting and sentencing the Appellant as it did? In particular:
(a) Did the Appellant’s act in posting the message engage his right to freedom of expression under Article 10(1) ECHR?
(b) If so, did his conviction and sentence amount to an "interference" with the exercise of that right?
(c) If so, was that interference necessary in a democratic society for one of the reasons listed in Article 10(2)?
(4) In all the circumstances, was the Court correct to conclude that the message sent by the Appellant crossed the threshold of gravity necessary to constitute a message "of a menacing character" so as to amount to a criminal offence within the meaning of Section 127(1)(a) and (3) and was the Court correct to convict the Appellant on the evidence and sentence him as it did?
3rd March 2011
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