Sunday, 24 April 2011

An Atheist on Easter Sunday

This is just a personal essay, written one Easter Sunday.

For me, atheism means not a disbelief in any god in particular.

Atheism instead means a disbelief in all gods, just as many disbelieve in fairies or goblins.

This is not to say that I would still disbelieve in gods in the event of good evidence to the contrary; but that is not really different from saying I would also believe in fairies and goblins, should there be good evidence for such magical folk.

In this way, my atheism differs from what I understand to be “agnosticism”.

It is not that I do not know whether gods exist or not.

For me, it is not an open question.

I positively disbelieve in gods, and I have never encountered any good evidence that they exist.

I believe that every god I could ever hear about in human history, and there have probably been thousands, to not exist; that each and every god is nothing more than a human construct; and that just because someone believes in a god does not mean that god exists.

In one curious way, my atheism is not dissimilar to someone else’s monotheism.

I disbelieve in all the gods I could have ever encounter; the monotheist believes the same, but with one exception.

One could be glib and say that plus-or-minus-one is nothing more than a rounding error.

However, there is the more important point that the typical Christian or Muslim invariably disbelieves in gods as readily as a typical atheist, and often does so with less thoughtfulness.

So if I am an atheist, what sort of atheist am I?

I do not think of myself as a militant atheist, but I suppose few actually do. It is the sort of phrase which one applies to other people, and not yourself. I certainly would not want to impose my atheism on someone else, and nor would I go out of my way to argue or debate with a non-atheist. I have known people derive great comfort from their religious views, and I do not wish to be the sort of person who wants to take such comfort away.

However, I derive great comfort from my atheism.

This does not stop various monotheists, usually Christians of one kind or another, wanting to convert me. There are even people who pray for me, which is both nice and rather pointless.

I am at ease with a godless universe and with a detailed understanding of natural and human history which has no need whatsoever for divine planning or intervention. The earnest people who wish to take this away from me may mean well, but they are offering only constraints where my curiosity and sensibilities otherwise would range freely.

To start believing that any part of the universe or any course of human conduct can be explained only by divine agency would constitute a narrowing of my horizon; it would seem artificial and contrived, and I suspect I could not keep it up, or indeed keep a straight face.

My atheism dates back more-or-less to university days, twenty years ago. I do confess to a brief flirtation with Christianity when I was about nineteen, but it lasted only a week or two.

There are two bases to my atheism. The first addresses the claims of “natural religion”; the second is my response to the contentions of “revealed religion”.

In terms of natural religion, I can never get the hang of thinking about the universe with gods in it. Nothing seems to require a godly explanation. For example, evolution by means of natural selection is capable of explaining natural history. Though it is a complex theory, and one which can seem counter-intuitive, development by random mutations and the survival of the fittest is at least capable of being true, given a sufficiently long time-scale.

Arguments from creation and from design, on the other hand, seem to just trigger more questions. It seems to me that there was no need to posit a creator or a designer if there was any merit in evolutionary biology.

Similarly, and as far as I can tell, the existence of the universe, including the solar system and this planet, also does not need reference to any gods.

Such godlessness, of course, does not make the universe and life on earth any less wonderful and beautiful.

Indeed, freed from the requirement that everything has to be explained by reference to what some god allegedly did, one can have the sheer thrill of intellectually trying to work out answers where there are none prescribed.

A universe explained by a god seems rather drab in comparison.

However, my secular view of the universe would count for nothing if “revealed religion” was true.

My understanding is that revealed religion means that there has been some intervention in earthly affairs which demonstrates as a fact the existence of a particular god and endorses the truth of a particular religious form.

As someone who studied history at university, and whose day jobs (as lawyer and journalist) now involve the intense assessment of documentary and other evidence, such a prospect is exciting.

The strident assertions of Dawkins and Sagan would have no efficacy at all if it could be shown that there was good evidence of divine agency; that there had been some evidence which could only be explained by there being a god at work.

Christianity, for example, makes a number of historical claims for their god revealing itself in human affairs. Many of the Christian claims are familiar in modern culture: the virgin birth and nativity of Jesus, the miracle-working and exorcisms of the ministry of Jesus, and the resurrection of Jesus after his execution.

And this is where I have my greatest problem with Christianity.

I cannot see why the bundle of stories and historical texts which provide the basis of Christian belief are inherently more plausible than any other cycle of ancient legends and scripts. Many Christians seem to believe that their religion has an inherent priority over other religions; that one has to accept the historical basis of Christian claims, whilst they deny the historical validity of the claims of other religions.

However, I have never understood why Christianity, which is essentially a Mediterranean-based religion known only to a minority of the world for most of its history, and indeed a more recent religion than some other world religions, has any inherent priority over other religions.

There is no reason why the badly-documented historical claims of Christianity are likely to be any more true than the claims of any other religion.

And, in turn, there is no reason why any other supposedly “revealed” religion is any more true than Christianity.

As far as I am aware, there is no event in either natural or human history which can be explained only by the design or intervention of a god, either in the Christian tradition or otherwise.

Take, for example, the Easter ‘resurrection’ stories in the New Testament. We are told that after his public execution, that there was a public resurrection of Jesus of Nazareth. This would have been an extraordinary event. However, the evidential base is not at all compelling.

The earliest version of Mark stops abruptly with an empty tomb and its discovery by people being instructed to say nothing about it. Acts has Saul/Paul being converted on the road to Damascus after encountering Jesus by means of a ray of light and a voice from heaven.

The later Gospel accounts, written down decades after the supposed event, add more detail, most of it inconsistent between the different Gospels.

Fairly straightforward points, such as who visited the tomb, what was found there, who was told next (if anyone), and who Jesus appeared to and with what effect, are all hopelessly confused. And, for an alleged physical resurrection, the ascension of the physically-resurrected Jesus figure upwards into heaven seems at best implausible.

Of course, the resurrection and ascension are plausible if one has faith. I understand faith to mean a certainty in something being true when there is no evidence otherwise. (Some people even seem to have faith that something is true even if the evidence is actually to the contrary.)

It may well be that some people can look at the evidence, such as it is, and conclude that the resurrection was a historical fact. They are free to do so, and the “who moved the stone” tradition is fondly invoked by many Christians; but there may be a problem in them adopting this approach.

As Paul himself recognised in his first letter to the Corinthians, Christianity ultimately must be a religion of faith. This is even the case in respect of the purported resurrection of Jesus, and Paul’s letter may indeed be the earliest evidence we have of the belief in a resurrected Jesus.

However, many Christians seem to want to know better than Paul, and so wish to say that a belief in the resurrection requires no faith at all.

In my own personal judgment – and I am fully aware of the “who moved the stone” tradition – there is nothing in the Easter story which actually requires a belief in the physical resurrection of Jesus as a historical event.

Indeed, as someone who admires the Gospels both as historical and literary documents, the post-resurrection narratives are disappointing and unconvincing.

It is clear that the Gospel narratives are a consequence of a belief in some form of resurrection of Jesus, rather than the evidential basis of the belief.

And there is no need to deny that the earliest Christians believed in a resurrection of some kind, physical or otherwise; there are religious enthusiasts in every age, most of whom are readily dismissed by Christians and atheists alike.

The fact of religious enthusiasm does not prove any historical fact, other than that enthusiasm exists.

To be a Christian thereby requires a leap of faith, just as it is required of any supporter of any “revealed” religion.

A wise Christian surely knows this, and will value any exposition of what can be shown without faith as an index as to what the effect their faith has on their beliefs.

As such there is actually no real tension between the Christian and the atheist: the former can use the latter as showing what difference their faith has to their view of the universe and human affairs.

However, I would like to invite any Christian (or Muslim or believer in any religious form) to try and see the universe as an atheist does: to have a sense of wonder in respect of both natural phenomena and ancient writings which is not easily satisfied by the conventional answers of others; and to enjoy the sheer rapture of working out things for oneself, with an evidence-based approach following one’s curiosity.

There may well be gods, fairies, and goblins; atheism and scepticism does not mean not admitting the ultimate possibility of any such things.

But you may well find that you do not need to believe in such things to understand and be awed by the universe; and you may also find that you do not need gods to appreciate what great (and awful) things humans can achieve by themselves.

So, if you have never tried it, do give atheism a chance.


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

Tuesday, 19 April 2011

Twitter Joke Trial: the case stated by Doncaster Crown Court

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.)





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 [2006] UKHL 40 on appeal from the Divisional Court [2005] 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 [1973] 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.


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.


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".


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.


(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


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

Sunday, 10 April 2011

Beyond the News of the World apology

What is the significance of today's apology by the News of the World in respect of the voicemail hacking scandal?

In legal terms, it isn't that important.

None of the claimants in the civil actions have agreed to settle their claims on this basis. It also does not cover all the claims outstanding. No apology seems to have been accepted, nor any compensation paid.

In strict terms, the apology is nothing other than a gesture: a tactical manoeuvre in a far wider complex of legal problems which News International (and possibly other publishers) are trying to contain and close down.

That said, it is a clever move.

Some claimants may accept settlement on this basis. If so, their claims are brought to an end and they receive compensation. It may be that such a settlement includes non-disclosure and similar provisions. Claimants who press on, notwithstanding the offer of settlement and the admission of civil liability, will do so at the risk of additional legal costs: English courts tend to penalise with adverse costs awards those parties which go on to trial when the other side has already conceded defeat.

It is also a clever move in terms of public relations: it is part of the common "we put our hands up" and "let's just now draw a line" rhetorical approach often used by the insincere and culpable.

But the apology will not help News International much more than that.

The main legal problem they have is not from the civil claims of individual victims of the phone hacking activity but potential criminal prosecutions against individuals and, possibly, against News International as a corporation. The apology will have no legal or (it seems) practical effect on closing down the re-opened police investigation.

The further problem facing News International is the various parliamentary and press investigations into the irregular relationship it had with the Metropolitan police.

There still appears no good reason why the original police inquiry was narrowed so quickly. The explanation could be knavery or foolery, but there is a public interest in finding out what curtailed the original investigation.

It may well be that we will never find out - that this current crisis is defused before any revelations are made.

One cannot have any doubt that the lawyers for anyone who did act wrongly are doing everything they can to put the problem in a box and tie it up.

The question is whether the parliamentary and press investigations can get to the bottom of the botched police investigation first. Whoever wins that race, today's apology is strictly irrelevant.

And there is the broader problem of how far the phonehacking went beyond News International.

Was it prevalent on an industrial scale?

Were they all at it?

Who knows?

Today's apology does not tell us which other parties were involved in this criminal activity. But it does tell us that the old fiction of one rogue reporter cannot any longer be sustained.

And, in turn, that tells us that however well the "fixers" and "problem solvers" believe they have "dealt with" a problem, as those at News International undoubtedly believed they had done before the current storm, it is possible - sometimes - that parliament, the courts and a free press can sometimes work together to expose unlawful and perhaps corrupt conduct.

Today's apology would simply not have occurred without the combined efforts of MPs, lawyers, and certain journalists; and, perhaps, that is its main significance.


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