I was live-tweeting today from the High Court hearing of Paul Chambers’s appeal in the “Twitter joke” case – an important case not just because of the way it represents the law’s arguably problematic collision with social media but because of the freedom of expression issues is raises. The hearing was interesting from a purely legal point of view, too.
Chambers was convicted by a District Judge at Doncaster Magistrates’ Court on the basis of this tweet,
Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!
of an offence under section 127 of the Communications Act 2003, sending a message of a menacing character by means of a public electronic communications network.
He’d already had one unsuccessful appeal, to the Crown Court; this was an appeal from that decision, and purely on points of law – what’s know as an appeal by way of “case stated”. His solicitor is [disclosure] my friend David Allen Green of Preiskel & Co, who instructed Ben Emmerson QC and Sarah Przybylska.
Ben Emmerson began by making clear there were three limbs to his argument. First, human rights considerations – freedom of expression under the Article 10 Convention right – coloured the entire case so that either the court had to interpret section 127 in an especially heightened way, for instance applying a high standard when applying the concept of “menace”; or else the court could simply see the entire prosecution as a disproportionate interference with free speech. He also wanted to argue that a message could only be “menacing” if it was in some sense intended as a threat, either (and this was the second part of the argument) simply because nothing can ever in fact be called menacing unless so intended – this was the argument relating to the actus reus or objective, physical element of the section 127 offence; or (thirdly) because section 127 must be read as requiring some intent on the part of the defendant (this was the argument relating to the mens rea or mental element of the offence).
It soon became clear that Emmerson faced an uphill struggle trying to persuade the judges of his second and third arguments. Lord Justice Gross and Mr Justice Irwin seemed clear that the question whether a message was menacing was to be approached objectively – taking account of the context at the time the message was sent, but not dependent on an intention to threaten. So unpersuaded did the judges seem that Emmerson never really developed the mens rea aspect of his submissions – the point seemed to me lost simply on the basis of the actus reus point. To be fair to the judges it is, arguably, the same point in essence made in two slightly different ways. And throughout, Gross LJ seemed anxious to take the case reasonably shortly – he clearly thought a couple of hours was all that was needed.
Where Ben Emmerson made more ground was on his proportionality argument – that freedom of expression means that the court must consider the entire context, including the fact that those responsible for security at Robin Hood airport did not see the tweet as representing a “credible” threat, and decide whether the prosecution was a proportionate response to the tweet. The judges seemed unattracted to the argument that section 127 should be read in a special “heightened” way under section 3 of the Human Rights Act 1998, but the overall argument that they needed to give effect to section 127 in a rights-compatible way by considering proportionality was one they seemed to accept – indeed it was accepted by the prosecution.
Counsel for the DPP (who I think was Robert Smith QC) argued that the prosecution was justified not only in the interests of national security but because of the rights of others – the right of users of Twitter and of Robin Hood airport not to be subjected to tweets like this. That seemed to me the weakest point in the prosecution argument: my sense is that the real background (there was no actual national security threat of course) means they felt they had to add weight to their Article 10 defence by bringing the rights of others in. But this seems an artificial argument – it’s not clear anyone was even likely to have been alarmed by the tweet. It was argued for the DPP that there was a real assessment of the tweet by the security officers responsible and that there’s a need to deter irresponsible tweets, but that, really, was the entire basis of the Crown’s proportionality “defence”.
Two technical but important points were raised in addition.
First, the judges asked counsel whether they had jurisdiction to vary Paul Chambers’s sentence (assuming they decide not to acquit him). The Crown argued strongly that they did not, since a “case stated” appeal relates only to questions of the pure law of section 127. As I understood his submissions Ben Emmerson argued that the issues of law put before the court included sentence, and that they had to consider the proportionality of the sentence as well as of the prosecution and conviction. I thought it interesting that the judges didn’t seem to pursue this point as far as they might have in the hearing.
Second, Irwin J put it to counsel that the Crown Court had found as a fact that the tweet was menacing – so that the court on appeal could not (unless it thought the lower court had misdirected itself as to the meaning of “menacing”) disturb that finding. That I don’t think was disputed by Ben Emmerson.
Gross LJ said judgment would be reserved – we can expect it to be handed down in the next couple of weeks.
What seemed clear in court today was that all Paul Chambers’s arguments except proportionality fell on pretty stony ground. Neither Gross LJ nor Irwin J seemed persuaded at all that the concept of menace in section 127 is anything more than an objective one, on which the Crown Court had made reasonable findings of fact. They seemed very resistant to the argument that section 3 of the Human Rights Act requires them to read the statute in a different way.
The proportionality argument, though – that it was disproportionate and therefore under section 6 of the Human Rights Act (which wasn’t expressly mentioned, interestingly, though it was implicit in the background throughout) unlawful for the CPS to prosecute and for the courts to convict Paul Chambers for this tweet – seemed to me to find more purchase with the court. At one point Gross LJ showed some impatience when he thought Ben Emmerson was arguing that no joke could ever be proportionately criminalised – he called that submission
a touch superficial.
But the idea that it might in this case have been disproportionate to prosecute this particular tweet was taken more seriously by the judges, and this proportionality issue is in my view the key to their ultimate ruling.
My prediction? It can only ever be an instinctive feeling but perhaps a legal pundit has to make one. Although many of the arguments deployed for Paul Chambers got nowhere today, it’s easy to overlook how clearly accepted it was on all sides that the judges must apply a proportionality test – and how relatively weak the Crown was in justifying the prosecution in those terms.
On proportionality, my sense is that it really could go either way. Paul Chambers is unlikely to win his appeal on any other point – but on that one, he just might.