Wednesday, 27 June 2012

The Twitter Joke Case

When enacting legislation, Parliament does not usually seek to define ordinary words of the English language.  Where Parliament wishes a word or phrase to have a special meaning, there will usually be an interpretation section.  Unfortunately, where a particular word is crucial to criminal liability, this can lead to difficulties as is well-illustrated by the long-running  "Twitter Joke" case.  The second appeal to the High Court in this case was heard on 27th June.   The facts of the case occurred on 6th January 2010. 

Previous proceedings:

The case was heard initially in the Magistrates' Court where a District Judge (Magistrates' Courts) found Mr Paul Chambers guilty of the offence under the Communications Act 2003 section 127(1) - sending a  "menacing" communication via a public electronic communications network (PECN).  Mr Chambers appealed against his conviction to the Crown Court and, this time, was found guilty by a judge sitting with two magistrates.  An appeal from the Magistrates' Court to the Crown Court is a re-hearing of the case.    The next step was an appeal - "known as Appeal by Case Stated" - to a Divisional Court of the Queen's Bench Division.  This form of appeal is concerned only with questions of law such as the interpretation of Acts of Parliament.  On this type of appeal, the Divisional Court will accept any findings of fact made by the lower court - (in this case, the Crown Court).  The appeal was heard by two judges who failed to agree. Hence the need for this second appeal which was heard by three judges including the Lord Chief Justice.

The legislation:

s.127 is headed Improper use of public electronic communications network and s.127(1) states:

(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) Subsections (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)).

The term "public electronic communications network" is defined in section 151 - “ .. an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public." 

It is interesting to compare section 127(1) - under which Mr Chambers was charged - with section 127(2).  Section 127(2) is clearly concerned with less serious forms of communication since the words used are "annoyance, inconvenience or needless anxiety" whereas the words in section 127(1) are "grossly offensive or of an indecent, obscene or menacing character."

A further difference between 127(2) and 127(1) is that 127(2) is concerned with the defendant's purpose in sending the message.  "Purpose" requires that the defendant had an aim (or intent) to achieve a certain thing.  In section 127(1) there is no indication as to what mental state must be proved on the part of the defendant.

DPP v Collins 2006:

This is a case where the House of Lords considered section 127(1).  The case arose in the context of a "grossly offensive" message as opposed to one of menacing character.  Nevertheless, the observations of the House of Lords on section 127(1) are important.

DPP v Collins [2006] UKHL 40

The mental state to be proved.  A submission was made by counsel for the DPP 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.  This submission was accepted by the House of Lords.

Purpose of the legislation.  Lord Bingham, having considered the legislation prior to the 2003 Act, stated - "The purpose of the legislation which culminates in section 127(1)(a) was to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society."

Interestingly, section 127(1) does not appear to be limited to services provided and funded by the public.  this seems to follow from the interpretation section (section 151) which defines public electronic communications network.  Thus, the wording of the section appears to be wide enough to include social media such as Twitter and Facebook.

There is no discussion in DPP v Collins of section 151.

The offence in section 127(1) was complete when the message was sent.  The object of section 127(1)(a) and its predecessor sections is not to protect people against receipt of unsolicited messages which they may find seriously objectionable.  The proscribed act (or actus reus) is the sending of a message of the proscribed character by the defined means. The offence is complete when the message is sent. Thus it can make no difference that the message is never received, for example because a recorded message is erased before anyone listens to it. Nor can the criminality of a defendant's conduct depend on whether a message is received by A, who for any reason is deeply offended, or B, who is not. On such an approach criminal liability would turn on an unforeseeable contingency.

Grossly offensive - a question of fact for the trial court.  It is for the trial court to determine as a question of fact whether a message is grossly offensive.  In making this determination the standards of an open and just multi-racial society are to be applied and the words must be judged taking account of their context and all relevant circumstances.  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.

Menacing communications:

What is a "menacing" communication?  it appears that there is no decided case on the meaning of "menacing" under either the 2003 Act or its legislative predecessors.

The word menacing must be taken to mean more than the words used in section 127(2) - "annoyance, inconvenience or needless anxiety".  Dictionaries define "menacing" as threatening harm.  Arguably, some form of threshold test is needed so as to ensure that section 127(1) is applied only to more serious comments.  There is no requirement for there to be any recipient of a message.  This would seem to rule out any form of test based on the impact of the message on any particular recipient.  Some form of objective test is required.

The law of blackmail offers a possibility which could be adapted to communications and this was argued in the second appeal before the Divisional Court.  The offence of blackmail is defined in the Theft Act 1968 s.21 where the word "menaces" appears though the word is not defined.  Decided cases on the point indicate that "menaces" amount to threats (though not necessarily of violence)- Thorne v Motor Trade Association [1937] AC 797 (Lord Wright at 817).  In R v Clear [1968] 1 QB 670, Sellers LJ stated that the threat must be of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand.

A detailed look at the Twitter-Joke case appears in the New Statesman - David Allen Green.  Working by analogy with the blackmail case law, Mr Chambers' legal representatives hope to have persuaded the judges that the following should apply:
Actus reus (the act which needs to be proved)
  1. a person sends a message or other matter;
  2. by means of a public electronic communications network;
  3. which is a threat of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive; and
Mens rea (the intention which needs to be proved)
  1. the person sending the message or other matter intends to threaten the person to whom the message or other matter is intended to or is likely to be conveyed.
In the light of DPP v Collins it is an interesting question whether the mens rea could be narrowed to just intention to threaten.  DPP v Collins would suggest a mens rea more along the lines of - the defendant must intend his words to threaten those to whom they relate, or he must be be aware that they may be taken to be so.

This is an interesting and important case in relation to the use of social electronic media such as Twitter, Facebook etc.  Hopefully, the outcome of the appeal will be that Magistrates' Courts (and those responsible for making charging decisions) will have better guidance as to the type of communication which may properly be considered to be menacing.

For the law student, this case offers a good example of statutory interpretation including the need to read the legislation as a whole and to be aware of the history of the legislation.  It is also a good example of how a legal argument can be constructed by analogy to other areas of the criminal law.

1 comment:

  1. You can be caught for sending offensive and menacing communications? My God.