“Twitter joke” appeal: interview with John Cooper QC and David Allen Green

by Carl Gardner on June 27, 2012

Following today’s second appeal hearing in the “Twitter joke trial” case, I spoke to Paul Chambers’s solicitor, David Allen Green of Preiskel & Co., and to his barrister John Cooper QC.

During the interview you’ll hear John Cooper suggest you might want to have the relevant legislation, section 127 of the Communications Act 2003, as you listen. So here is the text of section 127:

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) 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)).

{ 9 comments… read them below or add one }

1 Stephen June 27, 2012 at 16:24

Excellent coverage via Twitter and excellent podcast. It’s great that it is now possible to follow cases in real time from a remote location.

2 shodanalexm June 27, 2012 at 16:41

Very helpful podcast. Thanks.

3 Graham Arnold June 27, 2012 at 22:04

Thankyou. Fingers crossed that common sense prevails and this Pythonesque situation is resolved correctly.

4 Matt Flaherty June 28, 2012 at 14:03

Yes, very good indeed. Filled in some of the gaps in what I took away from the court room. I’d completely missed the point about the obiter remarks for example.

5 Mark June 28, 2012 at 14:45

Was this appeal on points of law, as it seems the David and John went back to issues like how ‘menace’ is understood, and the importance of context to a message, what constitutes content and message on today’s internet, and what is the legal test for ‘menace’? I thought these issues were not readmissable at this appeal stage?

Also, was I right in thinking that there was some back-tracking on the issue of ‘proportionality’? Was this because there was no-one there to argue for that this time?

I really hope all goes well for Paul.

I’d be a bit concerned that the arguments are pulled again into this groove about ‘humour’ should be excepted from the law, because at previous stages, the infamous elderly couple were wheeled out as potential individuals who would be threatened. You know, the couple with no sense of humour and no sense of modern reality, who likewise might imagine that they might be electrocuted by a computer mouse. The same couple who might imagine that this would be the first tiem in history when an airport would be blown up deliberately because they failed to clear the snow to the satisfaction of an irrate customer.

Likewise, the threat must carry some level of credibility. If it falls into the category of ‘no credibility’, then there is no room to argue for degrees of being menaced. In that sense, I think you were right to look at what example ‘menace’ should mean in a legal sense.

The test here should be what reasonable ordinary people who use the internet regularly and also use Twitter regularly would make of this tweet.

Interesting too that ‘menace’ in this message actually breaks down to frustration (‘crap’), ‘cynicism’ (get your shit together), exaggerated threat (blowing the airport sky high), and feigned power (or else!). Are each of these elements that were supposed to contribute to the so-called menace to be made illegal, individually and separately, or altogether as a package? Exactly what part of Paul’s expression is being considered ‘illegal’, one wonders.

I still think that it’s a bit of a mistake to make a bald denial of any menace. The message was manipulating the tools of menace for comedic effect. In that sense, the message and the content operated at different levels, and taking the content literally would be like taking a TV script as a literal communication of the script writer.

6 Simon Carne July 5, 2012 at 11:19

Like many others, I would like to see the appeal succeed, but I am intrigued (not in a good way) by the arguments which appeal to lines from Shakespeare and Betjeman.

Shakespeare did not advocate (or threaten) the killing of lawyers. A character in one his plays did. The line was either fictional or historical. It wasn’t a contemporaneous call to action. Like shouting “Fire” in a theatre knowing it to be untrue, there is a crucial difference between a member of the audience shouting it and an actor shouting it in the course of the play.

The Betjeman argument is less weak, but only a little less. Betjeman didn’t threaten to bomb Slough. Writing in 1937, he called on “friendly bombs” to land there. If, three years later in 1940, a poet had written “Come angry bombers and aim for Slough”, would we expect wartime Britain to have seen it as a harmless bit of fun? Would the residents of Slough have done so? Would public donations have paid the poet’s legal defence fees?

7 Stephen July 5, 2012 at 11:48

@ Simon

Good points: Shakespeare and Betjeman not comparable to Paul’s tweet.

Paul’s tweet did take the form of a threat. The issue, as far as I can ascertain, is whether it was menacing. The test is whether a reasonable observer (a passenger on the proverbial Clapham Omnibus, perhaps?) would perceive menace in the threat.

8 Matt Flaherty July 6, 2012 at 11:07

I would say to Simon and Stephen that yes, on the surface it would seem that Betjeman and Shakespeare are not relevant. But if you delve deeper, you may see that Paul’s tweet is just as much a work of fiction and designed to be taken as such. Like many works of fiction it is based on personal experience. Paul is not a member of the audience. He is an actor on the stage. Every twitter user is his own channel and “listeners” need to tune in to “hear” it.

When Orson Welles broadcast his War of the Worlds radio drama in 1938, many listeners believed that it was a real news broadcast and there was a panic. This was against the backdrop of World War II, one of the most dangerous periods in modern history. As extreme as this reaction was, it would have been an even more ridiculous overreaction to prosecute Welles or the radio station for the panic that ensued. This was a real situation in which large numbers of real people were actually in grave fear of the end of the world. Nobody was punished. Compare.

9 Simon Carne July 9, 2012 at 07:34

Matt’s example of the Orson Welles broadcast is a much better analogy than either Shakespeare or Betjeman – precisely because listeners to the radio broadcast could have thought that it was a real news report. If the Chambers defence team had used that example, instead of Shakespeare or Betjeman, I wouldn’t have written my comment above.

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