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Today’s “Twitter joke” appeal hearing

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.

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  1. 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.

    I think that this has to be the crux of the matter, and I’m a bit disappointed that Ben didn’t take this as a point of question. For example, the lower court found as a fact that the tweet was menacing, when in fact, I think it could be said that they found the tweet contained an element of ‘menace’, which is surely not the same thing. Indeed, context is everything. Humour can and does manipulate different kinds of ‘menace’ and this is what actually makes them effective as jokes – 10 seconds of watching Tom and Jerry illustrates this quite well. Surely the interest from the comedy community highlights this point.

    My other quibble at this point is that the arguments about context were not properly fleshed out. The prosecution ‘added’ context to the tweet that was not there originally, and in fact, were not there in fact. The idea first is that the airport saw the ‘menace’ in the tweet, but didn’t see it as menacing. Therefore, they passed it on…all the way up to the CPS. It seems everyone has been able to make this distinction in deciding on the objectivity of ‘menace’. The CPS suggested viewers of the communication who were not party to Paul’s regular tweets and humour. That in itself takes the Tweets out of the context of a ‘social networking’ site. Today, of course, Twitter has expanded in terms of corporate or public communications, but at the time, it was still in relative infancy. Third, while the CPS have added significant ‘context’ to the communication that was not originally there, they have also ‘removed’ the original context. They have taken the message as a standalone message, they have not considered it in regard to Paul’s actual circumstances or his history of tweeting hyperbole, all of which would certainly have revealed that ‘menace’ did not mean ‘menacing’.

    Also, the tweet itself entirely hinges on a ‘threat’, the threat being, ‘get your shit together so that I can travel. This context in itself reveals the tweet to be a joke, with no other outside context, as does the ‘sky high’ element, as does the very first ‘Shit!’. Indeed, many jokes begin this way, ‘have a guess what; you’ll never believe this; Gordon Blimey!’ The list really is endless. It has all the form of a joke, whether it’s a good joke or a bad joke. This is surely relevant given the interest from the comedy community – who make their living from making ‘public jokes’. What if their ‘jokes’ to their audience were searched for on Google, would they be liable for that. This can never be allowed to be the case. I’m surprised that not more has been made of this ‘defence of humour’. If anything, even Irwin seems to be hung up on the ‘well it’s obviously menacing’, without giving any more thought to it. On the contrary, it’s obviously not menacing, though it obviously has an element of menace in it.

    I am very pessimistic about the outcome. The element of proportionality could easily fall into the mistake of deciding that public institutions need to be protected from these kinds of ‘facetious threats’. Well, it’s true if airport staff are going to be trawling social networking sites during their working hours or even at home. Depressing stuff.

  2. I suspect the mens rea aspect never got off the ground because, on my understanding, there only has to be intent to send – not intent to menace.

    As for the proportionality point, isn’t the test whether the prosecution was a proportionate response to a legitimate aim? Surely the legitimate aim is indeed the rights of others not to have the airwaves as it were used for ill-advised “jokes” about blowing airports “sky high”.

    I know many saw the tweet as a joke. Is “joking” a defence in law to s127?

    If Parliament crafted s127 in the way that it did, one presumes it did so on the basis of the Article 10.2 qualifications.

    Someone tweeted that the Bench asked whether Mr Emmerson thought Mr Chambers has the right to yell “fire”?

    If he yells “fire” and then adds, “joking!” would that make any difference?

    I don’t think so.

    Look, we’re all warned about even joking about bombs in airports because the people who provide airport security tend to have a sense of humour fail about it. I’ve heard similar verbal “jokes” in airports and, I have to say, my own good nature quickly evaporated.

    For someone to take that a step further and tweet it is beyond my comprehension.

    I have no idea whether the LJs are with me on this or not and await their decision with interest.

  3. do we have a view on how the sweet v parsley point applies here on requiring intention to be a part of the appropriate mens rea unless the act specifically states the contrary?
    ie does the s127(1) offence require intention or does the express requirement of 127(2) for intention and its absence from 127(1) imply that parliament had considered the point and intentionally left 127(1) without such requirement.
    was it a finding of the courts below that he had any such intention?

  4. I worry that it is foolish of the defence to focus too much on intent.
    If the court focuses on the intent of chambers it might consider his earlier private message to crazycolours

    “@CrazyColours I was thinking that if it does then I’ve decided to resort to terrorism”

    which might conceivably make it worse, as it points to a deliberate intention to post a ‘terrorising’ message. Of course that in itself, the defnce would argue, was a joke, and not to be taken seriously etc. But why go there?

  5. Simply,

    I think Sweet v Parsley was about knowledge, wasn’t it? She didn’t even know drugs were being used in her house, but the court decided knowledge was needed.

    Here I think the equivalent is knowingly sending a message. I don’t think anyone would dispute that that’s required, but equally Paul Chambers admits he knew he was sending a message – it’s his intention in doing so and the character of the message that are in issue.

  6. Is there a confusion over ‘sending a message’? Paul Chambers knew he was sending a message to @CrazyColours which would be seen by his friends but surely he wasn’t sending a message to anyone else – even if others could access the message. Was that point (about Twitter) appreciated by the courts?

  7. John Cartmell – I am told it makes no difference whether you send the message TO anyone or not. I am on trial next month over a tweet in which I stated my opinion about a council after months of their incompetence (that I hoped they would die horribly) and even though I didn’t send it to them and they didnt follow me, it makes no difference because it was out there in the public arena. The fact that they specifically looked through my tweets to find it is apparently ok.
    Hopefully when it comes to court they will see this for what it is, but it’s been hanging over me since July, cost me a fortune and been super-stressful.
    My partner is in the same position for writing a similar tweet.

  8. .. Paul Chambers knew he was sending a message to @CrazyColours ..

    I think you’ve answered this yourself, haven’t you, John? If Paul Chambers sent a message to anyone, then he sent a message – that’s that. I don’t think it matters (in respect of that element of the offence) to whom or how many people he sent it.

    There was a remaining point, though, which was whether, in the context of to whom and to how many it was sent, the message was menacing in character. The judges certainly understood that argument and did seem to appreciate the relevance of how Twitter works as far as that was concerned, though as I wrote it does seem they feel constrained by the finding of fact by the court below that the message was “menacing per se”.

  9. I don’t get this if this conviction stands, effectively a new crime had been created, without the sanction of Parliament, and without advertising the fact to anyone. Is that how we discover something is illegal, we take an innocent bystander making a joke, re-invent a law that makes it a crime and then advertise the fact to the rest of the world?, after the poor chump had had his life ruined.

  10. Much of the general commentary seems focussed on “fuddy-duddyness” of judges and the legal system. This is to rail against tradition.

    A far more significant issue is that the tweet in question was graded as “non-credible” by the airport security manager in the first instance.

    Even though someone directly connected to the security issue on the ground saw the tweet for what it was, they had no option under mandatory procedures. They were obliged to report it (upwards) despite being sure that it was a thing of nothing.

    This happened again when the police were handed it. They saw no problem, but were obliged to notify the next level.

    Each level dismissed it as nonsense but was obliged to notify upwards.
    It was an exercise in ass-covering.

    This continued until the report reached a level in the hierarchy that had no easy ass-covering ability.
    CPS could well have decided not to prosecute. However, they could not make that decision and then cover themselves by notifying ‘somebody’. The only they could cover themselves from the Terrorism bogeyman was to initiate the prosecution process.
    None of this fuss would have happened if Paul had known his place in the order of things. God be with the days when the peasants were happy just to be allowed to live.

    1. Un-fuddy-duddy the judiciary
    – Don’t be silly

    2. Change procedures so that judgement calls at the coal face are trusted.
    – Are you crazy? We’re talking Terrorism here. Trust no one. 9/11 and all that.

    3. Create an “Ultimate Notification Office” and forget to staff it.
    – In the case in question, this would allow the CPS to dismiss the report as silly, but to cover themselves by notifying the UNO.
    Real problems would be dealt with by real people on the ground. Anything reaching the UNO without real action at lower levels never deserved attention in the first place. It finds its true home in the dusty disk drives of UNO.

    Introducing real-world sanity to the bench is all very laudable as a long-term project.
    In the meantime, we need to ensure that this sort of case never gets in front of them.

  11. I am intrigued by the arguments over intent.

    Suppose, hypothetically, that someone believed airport security was lax and set out to prove it by issuing a series of tweets which were designed to be menacing in character (eg bomb threats), coupled with little clues as to how the threats might be extinguished (eg locations where bombs are said to be) … and then sat back waiting to observe that the locations are not searched. But, against all his expectations, they are searched.

    In this hypothesis, there is no intent to plant a bomb and no intent even to cause the airport to be in fear of a bomb. The intent is to prove that that the airports had no fear. But the intent is frustrated by the fact that fear is created.

    There are other laws which deal with acts of terror, planning acts of terror or extortion by way of creating fear of an act of terror. This law (s127 of CA 2003) is about messaging. Makes sense (doesn’t it?) that the law is interpreted as addressing the affect of the content on the recipient, not the intent of the author.

    Proportionality seems much the most impressive argument in this case. I’m not surprised the court gave it most attention.

  12. Simon

    In DPP v. Collins, Lord Bingham pointed out in section 9 that there were cases in which an intrinsically menacing text would not fall foul of the law, because: “In its context, such a message threatens nobody and can offend nobody. Here, as elsewhere, context is everything.” He also pointed out in the same section that “it is the message, not its content, which is the basic ingredient of the statutory offence.” This seems to have been totally overlooked.

    I cannot believe that the whole issue revolves only on issues of proportionality, when intepretation of the Act has already strayed so far from the Opinions of the Lords of Appeal of 2006.

  13. @(Simon Carne)

    Let’s take this idea one step further. Suppose a person who works on the grounds at Heathrow uses his phone to send a message to twitter. He thinks he types “I just finished planting some bulbs next to the new runway at Terminal 5” but the auto-correct changes “bulbs” to “bombs”. Lets say that it is an undisputed fact that this is what has happened. Is there an offence made out? It seems to me that according to your reasoning and that of the DPP there would be.

  14. Matt Flaherty makes an interesting point, but I think Kris (comment No 4 above) gives us the answer: “I suspect the mens rea aspect never got off the ground because, on my understanding, there only has to be intent to send – not intent to menace.”

    Applying that to Matt’s example, there was no intent to send a message which included the word “bomb(s)” – the intent was to communicate “bulbs” – and lack of that part of the intent would be a defence.

  15. @(Simon Carne)

    I see. That’s an interesting distinction. But I can’t help feeling we are splitting hairs. One might argue that Paul did not intend to send a message that would be interpreted by anyone as a genuine threat. He gave evidence that he considered it a throw away remark and he would not made it had he thought it would cause confusion. The reason the tweet works as a joke (albeit a weak one) is that the threat is a ridiculous overreaction and one that is not possibly actionable by anyone. Blowing an airport sky high? Simply not possible. His crime it seems is not in exaggerating enough. Had he said something like “I’m going to destroy the airport with my Uranium Pu-36 space modulator” then there would have been no doubt.

  16. I find the idea that intent is satisifed if there is intent to send a message but no intent to send a menancing message bizarre. It is not an offence to send a message so how can the intent to send a non-menancing message signify anything?

    The thing I find terrifying is that a message which is transparently not menancing and for which there is excellant evidence no-one found menancing allows someone to be convicted of sending a menancing message. Applied across the full range of the law what offences could I be in danger of being convicted of with no idea I was committing them?

  17. @(Alan Johnson)

    You won’t know until it happens, and like Paul you are rudely dragged from your office. Then because you feel sure you’ve done nothing wrong, you won’t ask for a lawyer, especially if you can’t afford one but don’t qualify for legal aid.

  18. @ Matt

    – “The reason the tweet works as a joke (albeit a weak one) is that the threat is a ridiculous overreaction and one that is not possibly actionable by anyone.”

    Nick Cohen makes the useful remark in the Guardian that no airports have ever been bombed because they didn’t clear up the snow. Those are the relevant ‘times in which we live’. In assessing a threat, the motive must carry some credibility. The motive here carries absolutely no credibility. That’s why it’s obviously a joke. I’m not sure I’ve seen this aspect made so blatantly clear until I read Nick’s comment.

    But it seems that we are well past arguing this part of the case, and that is quite worrying. Personally, I don’t understand this distinction between arguing the ‘facts of the case’ and ‘arguing points of law’. I thought that the two were so completely tied up in each other that you cannot arbitrarily seperate one from the other. That ‘the message was menacing’ is accepted as a fact of the case seems flatly wrong. Surely it is the case that the law in question simply states that once it is decided that a message is menacing, then it is de facto a crime, regardless of intent, regardless of whether the message was sent. In some cases, you can see why this would need to be so. Someone can easily send a message that is laced with menace, deny any intent to cause offence or deny having sent it directly to the person who received it. In terms of calling a telephone number and ranting down the end of the phone, you can see how this law is intended to deter such nuisance. So the only thing that guarantees any sense of proportionality is deciding whether the message (not message content) is menacing in the minds of ordinary sensible people (Lords of Appeal, 2006).

    Neither do I understand how this law differentiates on ‘degrees’ of menace. It is menacing in strict terms to threaten to ‘tickle you to death’, but the intention to kill or even do serious injury to must surely be recognised as almost non-existent? Does this law even allow for different degrees of menace? Where is the line drawn? Can I threaten to lick your face after eating Marmite? Cover you in postage stamps and post you to Afghanistan? Make you listen to Radio 4 for 72 hours non-stop?

    So many things about this trial just don’t make sense.

  19. “That ‘the message was menacing’ is accepted as a fact of the case seems flatly wrong.”
    That’s being kind. Perverse and Bonkers would be another way of putting it.

    Was any *evidence* of menace produced?
    Did any witness stand up to say that they had felt menaced by the tweet?
    There appears to have been evidence to the effect that the tweet was not menacing. The airport security manager deemed it to be “non-credible”. The police appear to have felt the same way until the CPS obliged them to make an arrest.

    The thing ended up in court.
    The function of the court is not to find truth or justice.
    The function of the court is to arbitrate between two opposing positions in the adversarial system.

    The prosecution would argue to the very best of their ability to find the worst possible interpretation of events. That’s their function in the adversarial system.

    It seems that the judge listened to an opinion and turned that opinion into a fact.
    He decided that the opinion of the prosecution overrode the evidence of the airport security manager. The manager was the person directly responsible for the security of the airport. If anyone would feel threatened by a tweet, it should have been him. He is an expert witness in the area of threats to an airport.
    The CPS are not expert in this area. Their inexpert opinion prevailed over expert opinion.

    “So many things about this trial just don’t make sense.”

  20. What should happen next?

    Clearly, the airport security manager should be dismissed on the grounds of gross incompetence. The judge found as “fact” that the tweet was menacing.

    It is absolutely terrifying that the security of our airports would be entrusted to anyone who can not recognise a fact when it’s staring them in the face.

  21. @ST

    The judge found the tweet to be menacing on the argument put forward by the CPS, the infamous ‘old couple surfing the net for information on Robin Hood Airport prior to a flight’ who would be seemingly ‘menaced’. It’s a dangerous place this Internet, it seems. And those ‘old people’ are probably the same ones as those sitting in on the Bench in the courhouse knowing nothing about Twitter or Facebook.

    Several people have already been convicted under this Law during the riots for posting ‘incitements to riot’ on Facebook and elsewhere. Fact is, the CPS will use this as a stick to whip the public over their rather informal and sometimes idiotic use of open social media networks.

    If Parliament wants to make this kind of thing illegal, let them debate it. But the CPS think they alone can decide on the limits of free speech in Britain.

  22. Are there no politicians interested in this debate? I haven’t heard a single one comment. Or is that normal while the court cases are pending? Surely this is an issue for Parliament?

  23. @Mark

    I don’t see how the old couple could feel menaced.

    Assume that the tweet would rank anywhere high in a search for Robin Hood Airport.
    “Crap! Robin Hood airport is closed. You’ve got a week to get your shit together, otherwise I’m blowing the airport sky high!”

    The airport is closed. There is no point in going there. No flights. It’s closed.
    The airport will be blown sky high in a week’s time, *but only if it’s still closed*.
    But.. if it’s still closed, there is no point in going there. No flights.

    I suppose that I must admit that it is possible that the old couple derive enjoyment in battling through snowdrifts in order to be able to sit around in closed airports. If that is so, then the tweet, if they actually stumbled across it, might have menaced them.
    However, it seems that the CPS advanced the argument that they would do this search ‘prior to a flight’.
    It could be of course that the old couple were so out of touch that they might not be aware that the fact of the airport being closed would mean that there would be no flights.

    Had the old couple found this tweet in the course of a search for information on Robin Hood Airport, it would have actually been of benefit to them.
    They would first have viewed perhaps thousands of more highly ranked results for the airport without realising that the airport was closed. Uppermost in these would have been the airport website.
    Many websites are badly designed. It is possible that the airport’s own website might fail to convey a clear warning that the airport was closed.
    It might be possible that the old couple would continue to plough through perhaps thousands of badly presented websites in an effort to find somewhere that gave them a complete rundown on the flight situation in 140 characters or less.

  24. @ST

    That explanation of why the ‘old couple’ shouldn’t be menaced but in fact informed is a bit long-winded, ST. Also, it doesn’t deal with the core of the message: Someone threatened to blow up the airport, regardless of the circumstances. The fact that Paul didn’t purposely write ‘only joking’ seems to have been what’s led to some to argue that the message was menacing. No proper qualification on the threat.

    It’s clearly meant as a joke. But jokes can backfire, and many times they do. The question is, can people make jokes on Twitter. Thus far the answer seems to be no, if in making that joke you imply a threat without qualifying it, no matter how unlikely that threat appears, even on paper.

    I mean, if that is what this all boils down to, it’s an absolute disgrace and travesty of a justice system that is supposed to see through that kind of nonsense. It will only illustrate the paranoia that has crept in and the sense that ‘protecting the public’ now seems to extend to protecting them from jokes on Twitter. Do people really need this protection, which is supported solely by nosey surveillance into the communications on Twitter.

    I’m sure I would not be the first to say that the rulings in this case to date have put the ‘twit’ into ‘Twitter’.

  25. I am concerned that the appeal has become one purely on points of law.

    I have no problem with the idea that we have a law prohibiting menancing messages. I am completely comfortable that this shoudl apply to all messages and we absolutely should not have specific laws for different messaging media.

    It seems absolutely right that in order to be convicted someone must have:

    What is shocking in this case is that the sending of a message which is clearly not menancing either to the intended recipients or to those who might be expected to be most easily subject to menance has resulte din a confiction.

  26. Sorry – not sure what happened I accidently posted a comment while writing it. Please ignore.

  27. I am concerned that the appeal has become one purely on points of law. I have no problem that there is a law prohibiting menancing messages. I am completely comfortable that this should apply to all messages and we should not have specific laws for different messaging media.

    It seems right that in order to be convicted of this offence someone must have:
    1. Sent a menacing message
    2. Intended to send a menacing message.

    What continues to shock is that there is a conviction despite the fact that neither element seems to have been present. The determination of what is menacing seems completely peverse and runs counter to the evidence that no one at all felt menaced. The interpretation of intent seems even more bizarre how can you satisfy the need to have an intent to commit a crime by having an intent to perform an act which is not a crime?

    I feel genuinely frightened by this. I am constantly taking decisions relating to risk and safety in my work and I do so following as far as I am able international consensus standards but nothing anybody could do would stand up to a minute to the sort of malign mis-interpretation of intent which is demonstrated in this case. What if I created a piece of equipment that caused a serious injury despite following all of the applicable safety standards, despite following the internationally approved risk management prcoess and despite in house verification and independant assesment of safety? On the basis of the case so far I could be judged to have had the intent of placing dangerous equipment on the market because I had the intent to place safe equipment on the market! I see no way to avoid this risk if the judgement stands and given I design medical equipment there is no way to avoid some level of risk.

    What is rotten in this case is the judegments about what is menacing and the judgement about what consstitues intent. This is what needs to be challenged.

  28. @(Alan Johnson)

    You’re not the former Home Secretary by any chance? 😉 You’re fear is not entirely justified. It’s not that there was an intention to send a message which has been determined objectively menacing. The lower courts applied the test described in DPP v Collins as whether the “message is couched in terms liable to cause gross offence to those to
    whom it relates”.

    As for mens rea, the threshold is very low.

    “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.”

    Both of these are in the opinion of Lord Bingham of Cornhill, and this case law has been found to apply equally to questions of menace. The latter has gotten us into a lot of trouble in this case because it also has meant that it doesn’t matter if a message is received by no one, only that it was sent. It has been suggested that the menacing character of Paul’s tweet is a fact of the case because it has been unambiguously declared clearly menacing by two judges of the lower courts. I disagree in that the judges did not apply the correct context when making that determination. I’ve written a bit about this here (please forgive the URL):

  29. It is actually paragraph 8 of Lord Bingham’s opinion (not 11 above) that sets out quite clearly that a message need not be received in order to make out the offence.

    “Secondly, it is plain from the terms of section 127(1)(a), as of its
    predecessor sections, that the proscribed act, the actus reus of the
    offence, 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, with respect, 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. The respondent did not seek to support this approach.”

    This (and the low mens rea threshold) may be fine in one-to-one type communications where the sender at least has in mind a recipient, as this is what we might call a targeted communication, but in broadcast style communication this is not at all appropriate. And it is the fact that it matters not whether a message is received by anyone that has allowed the courts to disregard all the evidence which suggests that nobody was menaced.

  30. “And it is the fact that it matters not whether a message is received by anyone that has allowed the courts to disregard all the evidence which suggests that nobody was menaced.”

    Famous question, first posed by George (Bishop) Berkeley in 1710:
    If a tree falls in a forest and no one is around to hear it, does it make a sound?

    Two hundred years later, we finally have the answer:
    It does make a sound. This is because an infamous old couple in a distant town might have been thinking about taking a walk in the woods. If they had heard the sound, they might have felt menaced. It stands therefore that the falling tree must have made a sound.

  31. @(Sling Trebuchet)

    That’s good. 🙂 Although it’s not entirely accurate. I invite you to read the post that I provided a link to in comment 30. The manner in which the message was delivered is also taken into account. So a message that was intended to be a private conversation between two people, both of whom understand the context, would could not be considered menacing if it happened to be intercepted by another person who did not understand. A posting to the public timeline of twitter is to anyone and everyone. The DPP argued that we can only look at the context at the time the message was sent when determining its menacing character because the purpose of the law is to protect people from menace and that’s the only context available at the time.

    The justices were partial to that. So a message will be deemed menacing if its content and the manner in which it is delivered give rise to this, unless the message is self-evidently not intended to be taken seriously. Paul’s message was not intended to be taken seriously, but the clues are mostly cultural and subtle. A jury would know that the message is not menacing without really having to understand why, but judges will agonise over this.

  32. @matt

    The DPP argued that we can only look at the context at the time the message was sent…. The justices were partial to that

    The judges might have been partial, but I cannot say that I am. WHAT does it mean? Is that another way of saying ‘only look at the message’? Because if that is true, that means looking at it with NO context. And then, all of a sudden when we try to decide if it’s menacing ‘in itself’, then we cannot but help inventing some kind of context, hence the old couple. The idea that ‘time’ somehow gives us an easy way to narrow down or select context is extremely dubious, surely. How can it?

    I cannot understand why this would not be challenged. How about not the context at the time it was sent (into the empty ether of the internet, completely devoid of any context), and talk about the context in which it was sent. Surely that is more relevant. It’s been said by several people now that taking away and adding context can really screw with meaning.

    As mentioned, ‘I love you’ can carries no implicit menace, the opposite in fact, but the message can be menacing if it’s a stalker. Likewise, ‘I’ll tickle you to death’ is quite literally a threat to kill, but no-one, absolutely no-one understands it as such. In other words ‘context is everything’. Context at the point of sending? – what on earth is that, and how do we decide it?

  33. So a message that was intended to be a private conversation between two people, both of whom understand the context, would could not be considered menacing if it happened to be intercepted by another person who did not understand.

    The issue here is that Twitter and other forms of Social Networking fall in between the two, between a private conversation among friends and something that is at the same time visible to the public. Only in recent years has Twitter become a ‘public announcement vehicle’, but then only for corporate accounts. All personal accounts are understood conversations ‘among friends’, though those networks can be wide and tenuous. In fact, it’s humour that often holds it together as a ‘social media’. Ironic, eh! The thing that identifies this as ‘social’ messaging is also the thing that is getting Paul into trouble because it’s being presented as a kind of ‘public statement’.

    This new technology cannot be policed with old laws. It requires Parliament to draft new laws, not bending old one’s to fit a purpose they were never intended for. When all is said and done, the only similarity between the telephone and the internet is that both can make use of the telephone line. There, the comparison really stops.

  34. @mark

    Ben Emmerson QC did challenge this view and it remains to be seen whether the justices take any notice of that. But his argument was mainly that we need to look at the wider context when deciding on proportionality.

    “Context at the point of sending? – what on earth is that, and how do we decide it?”

    The lower court judges accepted the CPS argument that the context is essentially the times in which we are living and the constant high level of terrorist threat, particularly in relation to air travel. This is simply wrong. That is not a context for anything. It is a constant that applies to all things existing in the times in which we live (if it is even to be believed). No one is menaced by this message. We’re not all going around soiling ourselves in fear of being blown up by radicals. Authorities seem to suggest that we should be.

    In seeking to protect an imaginary person from possible menace, the law is actually posing a danger to liberty for the public at large. The ease with which this type of offence can be made out without the offender even realising it should hopefully carry some considerable weight in the balancing act. If it all comes down to proportionality, as it seems to with the current law, then we need assurances that proportionality will be a factor in decisions to prosecute as it damn well always should be.

  35. It seems to me that Paul’s conviction and possible failed appeal could center around the vagaries of language. The idea that ‘content’ of a message is somehow ‘only in the words’ is a blatant falsehood. ‘Implicatures’ are one obvious example that completely refute that. Likewise, what does the ‘manner of delivery’ have to do with anything? We are not talking about a comedian’s delivery, so I suppose something that is ‘sent’, i.e. ‘delivered’ electronically, though in this case, the delivery is into the public domain. So from the Judges, we have ‘content’, and ‘sent’. Where is ‘the message’, and where is ‘the context’? These latter two were both crucial to the reading of DPP vs. Collins. They appear lost, to me, based on your summary Matt.

  36. “The DPP argued that we can only look at the context at the time the message was sent when determining its menacing character because the purpose of the law is to protect people from menace and that’s the only context available at the time.”
    The context is Twitter.
    The airport employee who discovered the tweet in question found it via a search for mentions of Robin Hood Airport. A tweet is only directly in the view of followers of the tweeter, or their followers in turn should they retweet. Any other viewing can only be via a search
    Any reasonable person with the competence to do such searches would be competent to do additional searches.
    Click on the name of the Tweeter and Twitter presents their profile together with a number of their recent tweets. There is a link to “More tweets” by the person.
    Enter the name into the Twitter search box and tweets to and from that person will be displayed.
    The context is not just that one tweet. The context is everything ever tweeted by and to that person and any mention of them.
    The entire context is immediately and readily available to anyone via a few mouse-clicks. These methods are not arcane. They are major features of the service. It is to be expected that anyone capable of creating a Twitter account and searching Twitter for mention of an airport would be capable of such mouse-clicks.

    I did read that linked article thank you 🙂
    One part that pressed a button for me was ”
    “given that RHA duty manager Duffield testified that he could not be sure at the time that it was intended as a joke”

    A: I judged it to be non-credible – a joke
    B: Could you say with absolute certainty that it was a joke?
    A: Well, my judgement was ….
    B: You allow people to board aircraft. Can you be absolutely sure that none of them are going to carry out some act of terrorism on the aircraft?
    A: My judgement is that the odds are that they will not.
    B: You allow people to board aircraft when it is possible that they might be intending to carry out a terrorist act? This is unacceptable.

  37. @ Sling Trebuchet

    I’d like to test your reasoning. Suppose a person were to tweet on his/her timeline: “Today I’m going to send out lots of menancing tweets, but they’re all just jokes” and then he/she sends out a series of tweets which (on the face of it) menace other people/places, naming them with their twitter @names (so they turn up in “mentions”) and/or hashtags (so they turn up in searches).

    Is it your position that this behaviour is to be exhonerated, because those who are mentioned or hastagged are obliged to do a seach on the sender’s timeline to find out whether there are tweets indicating a denial of intent? How far back up the timeline do you say the target is obliged to search in order to establish the lack of intent? What about the twitter user who has asked for mentions to be texted to their mobile phone (so they see the menacing tweet), but has no access to a twitter webpage whilst away from their PC (so they can’t immediately check out the sender’s timeline)?

    This is a complex case, but one thing is clear. The law should not impose a duty on the *target* of the (apparently) menacing tweet to carry out an investigation before they are entitled to feel menaced!

  38. I agree Simon

    The kind of context that ST points at might be relevant in a kind of sociological sense, but I don’t think it’s the ‘context’ that needs to be considered in this kind of case.

    The most obvious context is who posted the tweet, who was it ‘aimed at’, what were it’s contents, what was the message, and what motivated him to write it?

    The first is straightforward. The second is slightly less clear, in that ‘tweets’ are generally made to followers. However, in reality, they are likely to be one’s closest friends, although unlike Facebook, anyone can choose to be your follower. As such, Twitter entails a ‘public domain’ element.

    What motivated him to write it? From the Tweet itself we know that something is happening in a week and a bit, we know the airport is now closed because of snow, and we know the tweeter is pissed about that.

    To me it’s not clear whether the wider context is easily accessible, that he is about to visit his girlfriend for the first time.

    The content are the words and their meanings. These include a threat to blow the airport up, but also several markers of hyperbole, i.e. ‘crap’, ‘get your shit together’, and ‘sky high’.

    Why did Paul tweet this and seeing as it appears to be a bomb threat, what would be the motive, because unless you see a credible motive (terrorist wannabee), then it’s unlikely you’ll think it’s a credible threat. The motive for ‘blowing up the airport’? To get the airport to clear the snow. Credible? Only to a Martian!

    All of these things are available to the reader upon reading the text.

    Could it be taken the wrong way, i.e. to be menacing? Yes, at a very big stretch. There is clearly ‘menace’, even perhaps deliberate exaggeration of menace ‘get your shit together’. But interpreting this as truly menacing would also open the way to interpret a whole host of harmless communications also into criminal offences.

    Don’t ever threaten to ‘tickle someone to death’ on Twitter! It might get you into big trouble!

  39. My personal concern is that I am in a situation where a tweet was written (not to a person, but they searched specifically for it). It was not menacing, no hint of action, simply an expression of feeling. Given that there was no expectation they would read it, there was no intent to ‘menace’. However, although evidence suggests the people who hunted for it were NOT menaced, they have sufficient reason to want revenge on me that three of them are prepared to say they WERE menaced. Is them saying they felt menaced enough to make a tweet ‘menacing’? I would have thought not, but the law has shown itself to be such an ass over Paul’s case that I can’t be sure.

  40. @Simon

    I would have to understand your question better before I could reply properly.
    Suppose this person had tweeted one of:
    (1) “@SlingTrebuchet Crap! If you don’t get your shit together within a week, I’m going to blow you sky-high!!”
    (2) “I’m going to kill @SlingTrebuchet”
    (3) “SlingTrebuchet Crap! If you don’t get your shit together within a week, I’m going to blow you sky-high!!”
    (4) “I’m going to kill Sling Trebuchet”
    (5) and (6) would be as (3) and (4) but with a # before the name

    (1) and (2) would not show in my timeline – presuming that I don’t Follow them – but would be visible to me if I took the trouble to check Mentions
    (3) to (6) would only be visible to me if I took the trouble to search for my name, with and without the space.

    Would I feel threatened?
    My immediate reaction would be “Who is this idiot?”

    I would then check out their profile, tweets and mentions. This would not be done in trepidation. It would be done as a little diversion. I would fully expect to find an idiot.
    I would find that the person had announced the intention to send tweets that seemed threatening, but were actually a joke.
    I would judge that a format like (2) would fit that bill.
    I would judge that a format like (1) was a definite “Could do better”

    I would find that the person had been sending similar tweets to a number of random strangers
    What would I do?
    I would click the Twitter button that blocks them and reports them for Spam. Let Twitter sort out the idiot.
    End of.

    In the case of the tweet arriving via SMS, I would simply do the above at my convenience.
    Certainly in the case of (1), I would have a week in which to do this had I even the slightest feeling that there was any reality to it.

    This is NOT a complex case.
    It is a very simple incident made artificially complex by the triggering of an inflexible and unimaginative set of procedures.
    The party who designed those mandatorybureaucratic procedures is at least as culpable as the idiot who tweeted.
    Doubly culpable is anyone in the chain of events arising from the tweet and who had the option to cry halt , but did not.

    It’s farce. Pure and simple. It’s systematic failure.

  41. @ST

    Yes, but how you choose to respond and how the law would interpret such events were you to make a complaint are very different things. This alone would almost certainly fall foul of the law:

    Sling Trebuche wrote: “I’m going to kill Sling Trebuche”

    In fact, I’m rather nervous reproducing it here. 🙂

    The Lords Appeal considered what an ordinary law abiding citizen who was not an imbecile would consider to be menacing, i.e. common sense.

    The problem for Paul is the difference between literal meaning and actual meaning.

    I doubt that a case could be built on you expressing a feeling, unless the feeling expressed an action. “I feel like doing violence to A”, for example. That could be taken to be threatening.

    It’s getting to be all rather tricky.

  42. @Mark

    “The Lords Appeal considered what an ordinary law abiding citizen who was not an imbecile would consider to be menacing, i.e. common sense.”

    I can not believe that such a person could consider the tweet in question to be menacing. Only an imbecile would believe that there was even the slighted genuine treat to blow anything up.

    The problem is that the system failed. It failed because of imbecilic design and/or operation.
    Once the system decided that there was a criminal offence involved, the real problems started.
    Organisations and systems close ranks to protect themselves.

    The original judge was either an imbecile, or he decided that avoidance of embarrassment to the CPS was a factor that outweighed common sense.
    Once that first judge made his decision, the stakes went way up.

    The reason for all the apparent complexity in the case is that if Paul is have the appeal succeed, the next court up will have to find a way of explaining away the actions of the chain up to then. “The CPS and the first judge are imbeciles” would not be a palatable decision, even if common sense tells us that this is the case. It would be bad form.
    The best option for the self-defensive system is to raise a fog of complexity. The more complex the better. That leaves things open to overturn the decision based on some arguments that nobody really understands, or to confirm the decision on the same basis. At this stage, simplicity and common sense is the mortal enemy. Superficial plausibility for any decision is the goal.

  43. @TB

    I can not believe that such a person could consider the tweet in question to be menacing.

    I’m not so sure it’s so straightforward. It depends on how you ask it. If you ask ‘is it menacing’ and it’s interpreted as ‘does it have menace in it’, the answer is yes. But the fine distinction comes in realising it does have menace, but it’s not menacing.

    Yes, once the CPS decided they were going to prosecute under this Communication Law, they introduced a whole new application of the existing legislation.

    The original judge was either an imbecile, or he decided that avoidance of embarrassment to the CPS was a factor that outweighed common sense. Once that first judge made his decision, the stakes went way up.

    I think the basic problem is thinking: menace+message= menacing message. But really, it’s the interpretation of the context that has been arse about face. Blame the DPP for putting that argument forward. They were looking to get a prosecution whatever, and it really looks bad.

  44. I think a bit of a misunderstanding has developed here. Mark’s comment in which he stated “The Lords Appeal considered what an ordinary law abiding citizen who was not an imbecile would consider to be menacing, i.e. common sense.” was referring to the Lords who sat in judgement over DPP v Collins. There has not yet been a decision on this appeal. DPP v Collins was sensible enough on the facts of that case, but it’s somewhat inadequate here.

  45. Mark – my tweet was that I hoped all of the XX Council planning committee would all die horrible deaths.

    I have no way of making that happen, and was not suggesting I would attempt to make it happen. Just a feeling I had after months of extreme provocation. I didn’t send it to them but they were obviously monitoring me on twitter because I had been campaigning against them. Indeed their statements to the police indicate that they were reading my tweets (but without ‘following’ openly).

    I guess we’ll find out in six weeks whether a case can be made, when it is due (again) in court.

  46. @Helen

    my tweet was that I hoped all of the XX Council planning committee would all die horrible deaths.

    It brought a smile to my face, if that’s any consolation! 🙂

    What kind of world is it going to be if that kind of normality in personal expression is going to be hounded out of internet existence through excessive, heavy handed litigation?

    The whole point of twitter is that you can share our feelings, opinions etc. with any Joe or Jane.

    This is how Twitter advertises itself:

    An information network

    Twitter is a real-time information network that connects you to the latest stories, ideas, opinions and news about what you find interesting. Simply find the accounts you find most compelling and follow the conversations.You don’t have to build a web page to surf the web, and you don’t have to tweet to enjoy Twitter. Whether you tweet 100 times a day or never, you still have access to the voices and information surrounding all that interests you. You can contribute, or just listen in and retrieve up-to-the-second information.

    That’s the point, if you are going to ‘listen in on’ conversations, then you might not always hear something you like.

    Public officials should serve the public, not spend their time trawling Twitter to find out whether their adoring public are in permanent enthral over their boundless wisdom!

    Good luck, Helen. Like most people, I expect, there seems no way of knowing whether you have fallen foul of a new kind of Orwellianism!

  47. Thanks Mark. I’ve now spoken to six different lawyers (including DA Green) who think this is utter nonsense. My own lawyer agrees with you that if you go snooping, and you find something you don’t like – tough! Let’s hope the sheriff sees it the same way.

  48. It might be said that the employee of Robin Hood Airport was ‘snooping’ and overheard something they didn’t like.

    It’s not clear what actual charge Helen is up on.
    “Threatening communication” would seem completely ridiculous.
    “Grossly offensive” might seem an option.

    However, in the appeal mentioned above, a view was taken that heated telephone calls that used racist terms could not be classed as *grossly* offensive in the circumstances.
    From what you say Helen, there might be strong parallels between the background of that case and yours.

    And now, from the ludicrous menace department:

    Anyone who reads this comment will die a horrible death within a week. You know – just like watching a certain video in that movie ‘The Ring’.

    This comment can not realistically have death-dealing properties – not even if your are an infamous old couple. I repeat – not even if your are an infamous old couple.
    It is not impossible that everyone who reads this comment will actually die a horrible death within a week. This would be improbable, but not impossible. Simple coincidence.

    What if I tweeted that menacing text?
    In the 140 character limit, there would not be sufficient space for a disclaimer.
    I could fit in a ‘smiley’ like 🙂
    But – would an infamous old couple interpret that as a sign that the tweet was a joke? Would they not interpret it as me laughing and smiling at the thought of their impending horrible death? Muhahahaha!

    What if the words just *wished* that readers would die a horrible death, rather than saying that they would die?
    Some might find that “offensive”.
    I think that any ordinary sensible person would simply find it “silly” if I had uttered it out of the blue. They would see it as “letting off steam” if I had uttered it in the course of some heated interaction.

    Some people will find offence in the slightest thing.
    The best response to someone saying “I didn’t come here to be insulted.” is “Oh, where do you normally go to be insulted?”

  49. The charge is the same one as Paul – S127 of the CA.

    To be honest I’ve had worse (sent to me specifically) on twitter than anything I’ve written!

    But they will say they were terribly menaced by it because they want to punish me and shut me up. Even though further examination (by me) showed them chuckling about it on twitter. The Sun doorstepped me and then the council tweeted a gloating link to ‘having made it into the national press’. Charming.

  50. In Paul’s case it seems that nobody actually complained of feeling menaced. The airport security manager deemed it non-credible.
    In your case it might be argued that although someone actually complained, their chuckling/gloating indicates that their complaint was vexatious / waste of police time / waste of court time.

    A problem might be that the prosecution will argue that regardless of the lack of any evidence of actual menace, that the tweet is menacing in itself. I should have thought that they would rather try to talk it up as being grossly offensive.
    A vague hope of ill befalling someone doesn’t seem particularly menacing. It’s on a par with the Chinese “May you live in interesting times”.

    If it succeeded in passing as “grossly offensive” rather than “menacing”, that would open up a huge can of worms.
    Either way, the bar would have been lowered significantly.
    (That’s actually an unintentional pun.)

  51. Here’s an interesting Twitter similar-ish case from the other side of the pond:

    In summary.
    Someone tweets a wish to engage in sadomasochistic activities with Michelle Bachmann (R-MN).
    “After learning about a particularly vulgar tweet that involved Bachmann in August, a grand jury subpoenaed Twitter for the man’s identity. Twitter alerted the user — identified by Lamberth only as Mr. X — to the subpoena, and he filed a motion in the District’s federal court to quash it. ”

    Judge said he doubted the man would ever be indicted because there needs to be a “true threat” against Bachmann for a crime to have been committed.

    “There appears to be nothing serious whatsoever about Mr. X’s Twitter page,” the judge noted, “except perhaps the severity of mental depravity that would lead a person to produce such posts.”

  52. @ST & @Helen

    Interesting case, ST. I recently also came across a legal opinion at Lawinfo about a US case where someone had ‘wished the horrible death’ of someone, and was reminded of Helen’s situation. The legal advice was emphatic in stating that it is perfectly legal to ‘wish someone to die painfully’.


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