#TwitterJokeTrial - It's all about proportionality (unfortunately)

If you only read one blog post about the Twitter Joke Trial appeal in the High Court on Thursday the 8th of February 2012, read this one by practising lawyer Carl Garder at his blog Head of Legal. (Waves goodbye). But seriously, do read that post. It was described by Paul Chambers' solicitor David Allen Green as a "must read" and it saves me having to dive into what would otherwise be exhaustive detail here (The comments are also great). Instead I will just reinforce some of the key points by which I was particularly taken on the day.

It was a fascinating day in court. Both sides argued very skilfully. I was disappointed that the justices seemed to have satisfied themselves that the court has no jurisdiction to rule on the character of Paul's tweet. It was stated by two judges in two separate trials to be unambiguously menacing in content and in context. Because this is not a point of law (goes the argument) then this is a fact of the case and beyond reproof. I disagree of course, but then who am I? Just an ordinary person. I would argue that it IS a point of law because both the district judge and the Crown Court judge looked at the wrong context. They looked at something which cannot reasonably be regarded as a context for any communication. See this other post for more on that (go on, it's worth your time). This line of argument gets us nowhere with the justices though, as they are happy to accept the menacing character of Paul's tweet given that RHA duty manager Duffield testified that he could not be sure at the time that it was intended as a joke, also that airport security took it seriously. This ignores the fact that these people felt and stated that it was their duty to take any potential threat seriously, even a non-credible one.

The importance of context came up quite a lot in Thursday's appeal. I was dismayed when the justices began to suggest to counsel that Paul's tweet has to be looked at in the context it had the moment it was sent rather than any context we could ascribe to it with further knowledge. This is because a person stumbling upon that errant tweet will not at that moment be aware of the wider circumstances surrounding it and is therefore at risk of being menaced. This legal position opens up a huge can of worms as I'm sure you can imagine, so I'll leave it with you. What I'd like to note though is that this argument sends us down a new path of reasoning, which the justices did explore with counsel. The context of the communication and all the circumstances around it determine whether or not it is of a menacing character. The Lords made that clear in DPP v Collins. But in our new reasoning we are forced to ignore the circumstances around the tweet because the recipient may not be aware of them and so might be menaced unintentionally. This weakens mens rea considerably and it also means that any communication can be regarded as menacing if the content and the manner in which it is delivered give that impression and unless it is clear from the content of the message that it is not intended to be taken seriously. It now becomes easier to see how judge Bennett and HHJ Davies arrived at their conclusions.

This is quite a thorny patch we find ourselves in. The justices need to be faithful to Parliament's intention to protect members of the public from being exposed to messages that are of a menacing character and so must give little or no regard to the de facto meaning and intention of the message. We would argue that Paul's tweet is self-evidently not to be taken seriously (and therefore not of a menacing character) for a number of reasons. Unfortunately most of the clues are not a part of the content of the message, but are subconscious subtleties in its construction. The interjection at the beginning is the first clue to its jokey nature and the absurd "threat" and exaggerated ultimatum are further clues, as is the use of a double exclamation at the end. For more on the linguistic implications of the tweet, please see this other post (just do it, alright? It ain't gonna kill ya. You've read this far). Rational analysis of the surface content of the tweet does little to dispel the whiff of menace. The syntactical clues are cultural and subtle. They flow from the author and affect the reader in an illogical right-brained way. I'm sure a jury (without the need to understand why) would agree within minutes that Paul's tweet was not menacing, but unfortunately a pair of justices would tie themselves in knots over this. I don't think they will give this much attention and to be fair, the arguments by counsel along these lines were anything but novel.

It seems the only way this case may be decided favourably is through the application of the proportionality test which Strasbourg jurisprudence requires in cases that interfere with Article 10 rights. The justices must do the job that the lower courts completely failed to do and balance Paul's right to free speech against national security and the rights of others not to be exposed to menace. In doing so they will hopefully keep in the foreground the ease with which this type of offence can be unintentionally made out. I hope that the justices will see that in its efforts to protect the public from unwanted menace, the CPS and the courts have done nothing useful in this regard but have instead endangered and chilled us. If it is accepted that Paul did not intend to cause menace and that the actual likelihood and impact of any menace would be quite small, then it would be a disproportionate response to prosecute and convict him, even though an offence may be made out. This would be a victory for Paul Chambers but would be an unsatisfactory half measure for the rest of us. It would mean that to speak as Paul did would be to incur criminal liability and that it is the business of the courts to decide case-by-case whether it is proportional to convict. It would influence the CPS decision making process during the evidential stage of their Full Code Test, but this is not enough. This law clearly needs to be changed. I have more to say, but this is getting quite long now. I welcome any comments.