The Twitter Joke judgment considered

Lord Judge LCJ

Update 30th July:  At 12.20 pm (30th July) the following was posted on the Crown Prosecution Service News Brief -

"Clarification on decision making in Paul Chambers case

The DPP was not the reviewing lawyer in the case of Paul Chambers, but in June he did instruct the team managing it to consider conceding the appeal. This was considered and progressed, however, at a later stage the DPP was advised that, as a matter of law, conceding the appeal would not be possible. This is because it was not possible because the key finding of fact in the case was a finding of the Crown Court, which only the High Court could overturn. The DPP accepted that advice and reluctantly agreed that the appeal had to proceed."

The High Court took the facts from the case stated (Judgment at para 5).  This is normal practice in case stated appeals since such appeals are concerned with questions of law and the High Court does not usually hear the witnesses etc.  The High Court also noted at para 33 that proper respect had to be shown to such findings of fact but the judges clearly saw the Crown Court's finding - that the tweet was menacing - as flawed since no weight was given to some of the evidence and disproportionate weight to other aspects of the evidence (see discussion in para 33 and conclusion in 34).

Subsequently, it appears that the above statement was removed from the CPS website.

For further background to case stated appeals see Magistrates' Courts Act 1980 s111 .... Senior Courts Act 1981 s28 .... Criminal Procedure Rules Part 64 .... and the case of Paul Oladimeji v DPP [2006] EWHC 1199 (Admin).

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The "Twitter Joke" case - (see previous posts of 27th June and 27th July) - has been hailed as a victory for free speech.  Mr Chambers, a young man of entirely good character,  had his conviction quashed as a result of the decision by the Lord Chief Justice who sat with Owen and Griffith Williams JJ - full judgment - [2012] EWHC 2157 (QB).

Nothing in the judgment will prevent the prosecution of those who make serious threats via electronic media.  However, the judgment is likely to ensure that prosecutions are only brought in such cases.

The "tweet" which Mr Chambers made was held not to be a menacing communication within the meaning of the Communications Act 2003 s.127(1)(a).  A message of a "menacing character" is part of the actus reus of the offence (basically, that which must be done to constitute the offence).

The Act:

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.  (Underlining is mine).

It is worth noting that section 127(2) is a separate offence:

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.

Section 127(1) is clearly aimed at dealing with the more serious conduct.  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.   However, this does not mean that the offence is to be regarded as one of strict liability.

The facts of Mr Chambers' case:

These are clearly set out in the judgment at paragraphs 5 to 18.  What is striking about the facts is that, even after Mr Chambers' tweet was discovered by a Robin Hood Airport employee privately searching Twitter for tweets about the airport, it was not regarded by airport management as a credible threat.  Furthermore, the airport police did not regard it as a credible threat but it seems that South Yorkshire Police and certainly the CPS took a different view of it and considered it to be menacing.  A District Judge (Magistrates' Court) agreed with the CPS and convicted Mr Chambers who then appealed to the Crown Court where the case was reheard before a Judge sitting with two magistrates.  The Crown Court also convicted Mr Chambers.

At paragraph 19 of the judgment a number of legal questions are set out.  However, perhaps guided by the oral advocacy presented to the court, the judges opted to deal just with the core issues necessary to decide the appeal.  At the heart of the case was whether the actions of Mr Chambers constituted the required actus reus.  Discussion of this is at paragraphs 26 to 34.  In para. 34 the Lord Chief Justice said - "We have concluded that, on an objective assessment, the decision of the Crown Court that this "tweet" constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed."  (My emphasis).  The inclusion of the words "on an objective assessment" in this paragraph is important.  I return to this point below.

Before considering the actus reus further, it will be useful to look at the mens rea.

The required mens rea: DPP v Collins 2006

In the context of a "grossly offensive" message, the House of Lords had considered the required mens rea for section 127(1) - DPP v Collins [2006] UKHL 40.  In that case, 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 - (Lord Bingham of Cornhill at paragraphs 10 and 11).

In Mr Chambers' case, the Divisional Court briefly considered the mens rea (or mental element) necessary to establish a conviction.  They did not, strictly speaking, have to do this since the court had already held that no actus reus had been committed and so Mr Chambers was already home and dry.  The Lord Chief Justice referred to DPP v Collins and stated (para 36):

"By contrast with the offences to be found in s.127(1)(b) of the Act and s.1 of the Malicious Communications Act 1988 which require the defendant to act with a specific purpose in mind, and therefore with a specific intent, no express provision is made in s.127(1)(a) for mens rea. It is therefore an offence of basic intent. That intent was examined by the House of Lords in DPP v Collins. While it is true that the examination was directed to grossly offensive messages, it would be quite unrealistic for the mens rea required for the different classes of behaviour prohibited by the same statutory provision to be different in principle, the one from the other, or on the basis of some artificial distinction between the method of communication employed on the particular occasion. In consequence we are unable to accept that it must be proved that, before it can be stigmatised as criminal, the sender of the message must intend to threaten the person to whom it was or was likely to be communicated, or that such a specific purpose is a necessary ingredient of the offence. That would, in effect involve an offence of specific intent which Parliament elected not to create."

The LCJ went on to state - at para. 38:

"The mental element of the offence is satisfied if the offender is proved to have intended that the message should be of a menacing character (the most serious form of the offence) or alternatively, if he is proved to have been aware of or to have recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it."

The discussion about the actus reus:

1.  In the Divisional Court there was some argument relating to whether the message had been sent via a "public electronic communications network" (as is required by section 127).  John Cooper QC argued that  this was a "tweet" found by means of a subsequent search, and so should be treated as no more than "content" created and published on a social media platform rather than a message sent by means of a communications network.  However, the judges decided against this:

"In our judgment, whether one reads the "tweet" at a time when it was read as "content" rather than "message", at the time when it was posted it was indeed "a message" sent by an electronic communications service for the purposes of s.127(1). Accordingly "Twitter" falls within its ambit." (para 25).

2.  Section 127(1) of the Act has simply updated the protection to be provided from the misuse of technology. This once took the form of a telephone system and has now advanced to the present electric communications networks which, notwithstanding that "Twitter" was not invented at the date when the 2003 Act came into force, includes messages of the proscribed description sent by "Twitter."  (para. 27)

3.  The 2003 Act did not create some newly minted interference with the first of President Roosevelt's essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation.  (para 28).

Freedom of Expression is a right under the European Convention on Human Rights Article 10. It appears that, at the first Divisional Court appeal, Article 10 had been extensively argued by Ben Emmerson QC who was then acting for Mr Chambers.  That appeal was inconclusive since the court comprised two judges who were unable to agree.  In the second appeal, John Cooper QC represented Mr Chambers and opted not to argue the case on the basis of human rights.  Instead, the basic and practical English law approach was adopted of looking at the required ingredients of the offence.  (Many lawyers might take note of this.  Human Rights arguments, important as they are, are not always the best way to run a case). 

4.  The court then turned to the meaning of "menacing character" but declined to analyse the numerous other offences based on threats such as blackmail.  The dictionary definition of "menace" was "a thing threatening danger or catastrophe; a dangerous or obnoxious thing or person; a great inconvenience", and that as an intransitive verb, to "menace" was to "utter menaces; be threatening".

Mr Robert Smith QC submitted that no more, and no less, was needed than the application of ordinary language to the context in which any particular message was expressed and to all the relevant circumstances. Mr Cooper suggested that for a message to be of a menacing character it must, on an objective assessment, contain 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.

The court did not think that Mr Cooper's argument penetrated to the heart of the problem.  A message can be menacing even if the threat cannot be (or is unlikely to be) implemented.   At para. 30 the court noted:

"After all a message which cannot or is unlikely to be implemented may nevertheless create a sense of apprehension or fear in the person who receives or reads it. However unless it does so, it is difficult to see how it can sensibly be described as a message of a menacing character."

This appears to suggest that the message must be received by someone who has a sense of apprehension.   If that were the situation, then liability could turn on the chance event of who happened to read the message.  There is also the point, made by Lord Bingham in DPP v Collins, that the offence is complete once the message is sent.  Lord Bingham indicated that actual receipt was not required.  Nevertheless, the actual reactions of any persons who did receive the message would be relevant.

However, in paragraph 30, the court continued:

"So, if the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside this provision, for the very simple reason that the message lacks menace."

This part of paragraph 30 refers not only to those who actually receive the message but to those who may reasonably be expected to read it.  Who would such persons be?  Presumably they would be identifiable from the context.  When using "Twitter" then clearly "followers" would be in the group of such persons but who else?  This aspect of the case is not as clear as it might be though it takes us away from any requirement that someone must actually read the message and imports a more objective test requiring identification of likely readers and the likely effect the message would have on them.

It would seem that this "objective" view is borne out by paragraph 34 - (quoted above) - where the Lord Chief Justice said: ""We have concluded that, on an objective assessment, the decision of the Crown Court that this "tweet" constituted or included a message of a menacing character was not open to it....."

When it comes to considering persons who may reasonably be expected to read something it would also be necessary to consider what personal qualities such persons might have.  This brings one back to some form of test along the lines of "reasonably sensible persons who may reasonably be expected to read it."   Thus, there was merit in the view of Mr Cooper QC suggesting that for a message to be of a menacing character it must, on an objective assessment, contain 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.

5.  At para. 31  the court emphasized that, as is so often the situation in law, context is everything.

"Before concluding that a message is criminal on the basis that it represents a menace, its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent."

The context will include the actual reaction of any actual recipients.  Here, the

The "two gentlemen responsible for the safety of the airport showed no anxiety or urgency in dealing with it. It was treated and addressed as if it was not a credible threat. The airport police took no action. No evidence was provided to suggest that even minimal consequential protective measures were taken at the airport, or that the level of perceived threat was heightened. Indeed, notwithstanding the nature of the "threat", we can detect no urgent response to it. Police action was not exactly hurried. After the investigation, the South Yorkshire Police concluded that the appellant presented no threat. Although this conclusion reflected the outcome of the investigation rather than the immediate reaction to the text of the message, it was in fact entirely consistent with the attitude and approach of those who had seen the message before the investigation began."

The court's emphasis on context is vital.  This should now put to bed any idea that a message can be "menacing per se" - that is, menacing in and of itself.   The phrase "menacing per se" was used by the Crown Court Judge when Mr Chambers was convicted - see Jack of Kent blog - Twitter Joke trial: the case stated by Doncaster Crown Court.
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Comment:

This has been a very interesting case and Mr Chambers' legal team representatives deserve enormous credit for their tenacity.  Mr Chambers has been put through a legal mincer but has emerged with his character intact and is now free to rebuild his life.  The judgment is a shot across the bows of the CPS who really ought not to have brought the case to court in the first place.  The Act is plainly aimed at dealing with serious matters.

It is easy to charge people and bring them before Magistrates' Courts where legal aid is no longer readily available to many defendants.  Those of good character who become defendants may well be intimidated by the court and such people often plead guilty as, in fact, Mr Chambers did at a very early stage.  He was allowed to change his plea later.   The recent emphasis on speed in handling criminal cases will add further pressure to some defendants to get the matter over and done with.

The case shows just how difficult it can be to interpret legislation and it is on such interpretations that the futures of many citizens will depend.  Loss of good character can have massive consequences for the individual.  This is why the reductions in criminal legal aid are particularly objectionable.  Mr Chambers was in one sense fortunate in that money was raised by various celebrities for his defence.  Others might not be so lucky.

I have little doubt that had it been possible for this case to be tried by a jury a not guilty verdict would have been returned very quickly.  However, it is a summary only case and therefore was tried initially in the Magistrates' Court and was allocated to a District Judge (Magistrates' Courts) - District Judge Bennett.  The hearing in the Crown Court was an appeal from the Magistrates' Court.  Such appeals are heard by a Judge sitting with two magistrates.  In the Crown Court Judge Jacqueline Davis presided and decisions on points of law are for the judge to determine.