The appeal by way of case stated in the “Twitter joke” case (Chambers v DPP) has been allowed. The appeal was heard, for the second time, on 27 June 2012 and judgment was handed down on 27 July 2012 ( EWHC 2157 (QB)).
The background to the case is set out in Gervase de Wilde’s post. Mr Chambers was arrested on January 10 2010 when, after heavy snowfall had affected transport across the country and threatened his plans to fly to Belfast to meet a fellow Twitter user, he posted a tweet (pictured above) which read
“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!”
Mr Chambers was prosecuted for an offence under the Communications Act 2003, s127 (‘the 2003 Act’) which states that a person is guilty of an offence if he
“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;”
Mr Chambers appeared before a District Judge at Doncaster Magistrates’ Court and was convicted of the offence. He received a fine of £384 and costs of £600 were awarded against him.
His appeal to the Crown Court was unsuccessful and he appealed to the Divisional Court by way of case stated. The questions posed, found at the end of the statement of case on Jack of Kent, were:
“1(a) In order to prove that a message is of a “menacing character” within the meaning of Section 127(1)(a) (read according to conventional canons of construction or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998), is the Prosecution required to prove that the person sending the message intended to create a fear in or through the recipient (Sedley L.J., in Collins, supra, having defined a menacing message as “a message that conveys a threat … which seeks to create a fear in or through the recipient that something unpleasant is likely to happen”) or were we correct to conclude that the question of whether a message is “of a menacing character” is an objective question of fact for the Court to determine applying the standards of an open and just society and taking account of the words, context and all relevant circumstances?
1(b) Is the actus reus of the offence (Lord Bingham in Collins supra), “the sending of a message of the proscribed character by the defined means”, as we found, or does the actus reus include a requirement that the person sending the message intended the message to “create a fear in or through the recipient”?
(2) What is the mens rea for an offence of sending a message of a menacing character contrary to Section 127(1)(a)? In particular:
(a) Is Section 127(1)(a) (read according to conventional canons of construction or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998) a crime of specific intent?
(b) Is the Prosecution required to prove as part of the mens rea of the offence that the person sending the message intended to put another person in fear?
(c) If the answer to (b) is no, is it sufficient for the Prosecution to prove that the person sending the message realised that his message may or might be taken as menacing, or must the prosecution prove that he realised that it would be taken as menacing by a person of reasonable firmness aware of all the relevant circumstances?
(3) Did the Court act lawfully (within the meaning of Section 6 of the Human Rights Act 1998) in convicting and sentencing the Appellant as it did? In particular:
(a) Did the Appellant’s act in posting the message engage his right to freedom of expression under Article 10(1) ECHR?
(b) If so, did his conviction and sentence amount to an “interference” with the exercise of that right?
(c) If so, was that interference necessary in a democratic society for one of the reasons listed in Article 10(2)?
(4) In all the circumstances, was the Court correct to conclude that the message sent by the Appellant crossed the threshold of gravity necessary to constitute a message “of a menacing character” so as to amount to a criminal offence within the meaning of Section 127(1)(a) and (3) and was the Court correct to convict the Appellant on the evidence and sentence him as it did?”
The case was originally heard on 8 February 2012 by Gross LJ and Irwin J. They were unable to agree and the case was adjourned to a three judge court. It was reheard by the Lord Chief Justice, Owen and Griffith Williams JJ.
The judgment of the court was given by the Lord Chief Justice. The first substantive point which was considered was whether Twitter was a “public electronic communications network”. The Court had no difficulty in concluding that it was
“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”.
The Court then turned to what it described as “the heard of the case”: the actus reus of the offence under section 127.
The Court noted that
“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” 
It was noted that the offence of which the appellant was convicted “cannot be proved unless the content of the message was of a “menacing character.”" The Court rejected the argument that the message had to be credible as an immediate threat but noted that
“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” .
The Court stressed the need to consider the precise terms of the message and its context, noting that
“the more one reflects on it, the clearer it becomes that this message did not represent a terrorist threat, or indeed any other form of threat. It was posted on “Twitter” for widespread reading, a conversation piece for the appellant’s followers, drawing attention to himself and his predicament. Much more significantly, although it purports to address “you”, meaning those responsible for the airport, it was not sent to anyone at the airport or anyone responsible for airport security, or indeed any form of public security. The grievance addressed by the message is that the airport is closed when the writer wants it to be open. The language and punctuation are inconsistent with the writer intending it to be or to be taken as a serious warning” .
The Court noted the fact that no one who read the message during the first days after it appeared seems to have thought anything of it. In all the circumstances, it 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” .
Although it was not necessary to the decision, the Court noted that, even if the mens rea of the offence was awarness or recognition of 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, if the send of the message
“may have intended the message as a joke, even if a poor joke in bad taste, it is unlikely that the mens rea required before conviction for the offence of sending a message of a menacing character will be established” .
This is an obviously sensible decision in relation to a Tweet which should never have been the subject of the attentions of the criminal law. The Divisional Court simply overturned the factual finding of the Court below that the message was “of a menacing character”. It was, as a result, able to sidestep the various subtle questions raised in the Case Stated.
The decision has, not unsurprisingly, been welcomed across a very broad spectrum of opinion. The Guardian suggests that the decision
“represents a significant shift in the legal system’s treatment of social media sites, signalling that comments should be read in the context of online communications“.
It is, in reality, difficult to discern such a “shift” in the words of the judgment – the approach to interpretation which is applied is one which would be applied to all kinds of “messages” which were alleged to be menacing or threatening.
John Kampfner is closer to the mark when he writes that“common sense has finally prevailed”. Comedian Al Murray describes the case as “an absurdist operetta”. Louise Mensch joins in, writing about the “twits who pursued Paul Chambers”.
The “Daily Mail” joins in the approval for the decision – going slightly beyond the text of the judgment to suggest that the Lord Chief Justice has ruled that “Telling jokes about blowing up an airport is not a crime“.
The judgement, in truth, breaks no new ground. But the public outrage about this case is entirely understandable. There has been a high profile campaign led by Mr Chambers’ lawyer David Allen Green who has written about it extensively in his New Statesman column and who gathered links relevant to the case on his Jack of Kent blog. The case has focused public attention on the proper limits of criminal conduct and, it is to be hoped, will make prosecutors think very carefully in the future before launching such a silly prosecution. However bad the joke this one should have failed the “laugh out loud” test.
There is a simple lesson to be learned: the criminal law should confine itself to conduct which causes or threatens to cause serious social harm. No public purpose is served by the prosecution of Twitter jokers.