Tweet in haste, repent at leisure

Robin Hood Airport by Zaphod

This is Robin Hood Airport, near Doncaster, South Yorkshire.  It looks like a clean, modern airport.  It certainly does not look like an airport that any sane, ordinary person would want to blow up.  However, what if this airport was your gateway to fly somewhere to meet up with your partner? What if this airport were, say, snowed up or closed because of a volcanic ash cloud? Is it possible that you might get a little frustrated? If you were a user of a social media network, might you not vent your frustration in a blog/post/tweet/message suggesting that you might like to flatten it? Of course.  That would only be human.

What if I told you that someone  did exactly that?  What if I told you that he was then prosecuted, found guilty and fined £385 and ordered to pay costs of £600 with a victim surcharge of £15 (totalling a round £1,000 or about US$1,500)?  If you’re amazed, then you are not alone.

The facts of the case in R v Paul John Chambers were not in dispute at the Doncaster Magistrates’ Court on 10 May 2010.  District Judge Jonathan Bennett described how on 6 January 2010 Paul Chambers tweeted the following to his 600 or so followers at the time:

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!

That would have been the end of the story, had not off-duty manager Shaun Duffield used Twitter’s search facility to look up “Robin Hood Airport” on 11 January 2010 and discover the offending tweet.  He duly reported it to security at the Airport, where Steven Armson, head of security, graded the threat level of the message as “non credible”.  However, Steven felt obliged to pass it on to police Special Branch.  At no time does it appear that the Airport considered the tweet to pose an actual threat or did the tweet impact in any way upon the operation of the Airport.

Clearly some police time was then taken to investigate the tweet, as on 13 January 2010 Paul was arrested and interviewed under caution at Doncaster police station.  He was subject to two lengthy interviews. Criminal lawyers would then have expected Paul to be charged, if the Crown Prosecution Service (CPS) considered it appropriate, under the criminal offence particularly passed by Parliament to deal with bomb hoaxes and the subsequent waste of police time.  This is section 51 of the Criminal Law Act 1977.  Section 51(2) states:

A person who communicates any information which he knows or believes to be false to another person with the intention of inducing in him or any other person a false belief that a bomb or other thing liable to explode or ignite is present in any place or location whatever is guilty of an offence.

Why did the CPS not prosecute under this tailor-made provision?  This is a question that many commentators have already addressed.  We refer interested readers to the Jack of Kent blog, where David Allen Green discusses this case.  Here we discuss what happened next, the prosecution by the CPS under the Communications Act 2003.

The CPS prosecuted Paul using section 127 of the Communications Act 2003.  This states:

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.

In particular, the CPS alleged that Paul’s tweet had the necessary “menacing character” in order for the offence to be made out.  Prosecution under this provision is highly unusual.  There are no reported cases of this part of the offence being the subject of a prosecution.  Even more remarkably, section 127(1) has a long history.  It is the re-enactment of section 43(1) of the Telecommunications Act 1984, which can be traced back through a number of other statutes to section 10(2) of the Post Office (Amendment) Act 1935.  We can find no record of any of the predecessors of section 127(1) being used to prosecute the sender of a message alleged to have a menacing character.

There is a case that involves someone sending a message that was alleged to be “grossly offensive”: DPP v Collins [2006] UKHL 40.  This case was brought to the attention of District Judge Bennett.  It involved a person sending telephone messages over a two year period to his MP about immigration, referring in the messages repeatedly to “wogs”, “pakis”, black bastards” and “niggers”.  Lawyers will immediately spot that there must have been a problem with the interpretation of section 127, given that it was appealed all the way to the House of Lords.  In the House of Lords judgement, Lord Bingham said

“… 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.” (paragraph 11)

Lord Carswell also concluded that:

“… the messages would be regarded as grossly offensive by reasonable persons in general, judged by the standards of an open and just multiracial society.  The terms used were opprobrious and insulting, and not accidentally so. I am satisfied that reasonable citizens, not only members of the ethnic minorities referred to by the terms, would find them grossly offensive.” (paragraph 18)

When the District Judge applied the House of Lords’ ruling in Collins to the facts before him, he considered that a similar intention had to be found in connection with the sending of a message of a menacing character.  However, he then decided that although it was clear that Paul had no intention of making a real bomb threat so as to send a menacing message, the message was “of a menacing nature in the context of the times in which we live” and that Paul “was, at the very least, aware that this was of a menacing nature.”  We are at a loss to explain this view.

Adapting the passages from the House of Lords’ judgement in Collins, it could be said that a person could only be found guilty of sending a message of a menacing character where:

– the message is couched in terms showing an intention to menace those to whom the message relates or giving rise to the inference that a risk of menacing must have been recognised by the sender; and

– the message would be regarded as menacing by reasonable persons in general, judged by the standards of an open and tolerant society, where reasonable citizens, not only those to whom the alleged menace was directed, would find them menacing.

In the context of sending a Twitter message, we do not consider that this has been made out.

Lord Bingham, in determining what intention a defendant must have in order to be guilty of a section 127 offence (in legal jargon, the mens rea), applied the observations of Lord Reid in the case Sweet v Parsley [1970] AC 132, which state that where there is no clear indication as to mens rea in the words of an Act, the courts must, in order to give effect to the will of Parliament, read in words appropriate to require mens rea.

We reviewed what publicly available sources of Hansard that are available to see what Parliament might have said about clause 10(2) of the Post Office (Amendment) Bill, later to become that section in the 1935 Act.  Whilst it appears the definitive passage may be in the Official Report (Standing Committee B), 5 March 1935; col 14, which is not available, it is clear in the Second Reading in the House of Lords, or at least implied, that the measure was intended to catch direct, real-time, communications where a message had an indecent or menacing character.  By “direct” we mean that the sender at least intended the message to be received by the relevant recipient over the communications system, even though it is clear that it is the sending of the message that is the offence.  The provision was originally drafted to give protection to Post Office staff, particularly female telephonists subject to improper or obscene telephone calls.  It appears the clause was subsequently amended to give the public at large the same protection.

Section 10(2) of the Post Office (Amendment) Act states:

If any person-

(a)  sends any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character; or

(b)  sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience, or needless anxiety to any other person; or

(c)  persistently makes telephone calls without reasonable cause and for any such purposes as aforesaid;

he shall be liable upon summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment.

Lord Reid also noted in his judgement in Sweet v Parsley [1970] AC 132:

… it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.”

Given that in 1935 there were basically only two public communications systems, one a real-time system (telephone), the other not (telegraph), there is the basis for an argument that the original intent of section 10(2)(a) has been corrupted during the number of re-enactments of this provision.  It can be argued, in a Sweet v Parsley most favourable interpretation sense, that the mischief Parliament intended to address in section 10(2)(a) was unlawful messages sent by direct, real-time communications.  If non-real-time communications had been intended to be included, then the section would have referred to telephone and telegraph, as it does in section 10(2)(b).  Indirect communications were not within the scope of this provision at all. To cite a 1935 analogy to Twitter, would Parliament debating the 1935 Bill have accepted that the posting of a telegram on a public house notice board would be within the scope of clause 10(2)(a).  We do not think so.

Section 127 of the Communications Act 2003 loses any distinction between direct, real-time and non-real-time or indirect communications as a result of amendments to the term “telephone” made incidentally during re-enactments of the 1935 provision.  All appears to have been fine up until the Post Office Act 1969, when section 78(a) first uses the term “public telecommunications system” instead of the word “telephone” in section 66(a) of the Post Office Act 1953. There is no definition of “public telecommunications system” in the 1969 Act, and this term survived to section 43(1)(a) of the Telecommunications Act 1984.  Only in the 2003 Act does the term “public electronic communications network” appear.

We consider that the application of section 127(1)(a) to cover messages sent non-real-time and indirectly to a recipient with no subjective or, in our opinion, objective intention to menace, is a step too far.  This is completely removed from the intention of the original provision in section 10(2)(a) of the 1935 Act, which we argue was only intended to legislate for menacing messages sent over a direct, real-time, public communications network.  We note that DPP v Collins also involved voicemail messages, which under our analysis are not real-time, but this was not a material point

Sadly, the secondary consequences of being found guilty of the section 127 offence have been severe for Paul.  He is reported to have been sacked from his job as a trainee management accountant.  As he now has a criminal record, he will have to rely on the good sense of the Chartered Institute of Management Accountants to find that he is a fit and proper person to be a chartered management accountant, despite this criminal record.

As for the fine and costs, these have generously been underwritten by Stephen Fry, Jonathan Ross and many others on Twitter.  A fund is being set up to give Paul the means to appeal – details are available by looking up @TwJokeTrialFund.  It is thought that he will appeal.

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