Transcript of my #TwitterJokeTrial report for The POD Delusion

Please have a listen to this week's POD Delusion. Justice Denied's main contributor Matt "Flay" Flaherty reports on the Twitter Joke Trial developments that happened Monday the 28th of May. The report begins after an introduction at 8 minutes 40 seconds, and the working transcript is shown below:


I'd been eagerly awaiting the result of the Twitter Joke Trial appeal in February at the High Court, so I felt quite excited and a little sick when Paul Chambers' lawyer David Allen Green announced Monday morning that there was big news coming around noon. It turned out the big news was that the outcome of the appeal was, well, nothing. No result. The two justices who heard the appeal by case stated on the 8th of February were unable to agree after nearly four months of deliberation. To be fair, I doubt it was occupying them the entire time, but still. Talk about a body blow! Nobody was expecting this: an adjournment with an order for a fresh appeal to be heard as soon as possible by a constitution of three new judges. Three: that should ensure a majority opinion. When you think about it, an odd number would have been quite a sensible feature this time around. Appeals by case stated are on points of law only, and the judges are almost always unanimous. There have only been two other instances this century when that hasn't happened.

So it's a do over. All the fund raising that successfully paid for a leading human rights barrister and various expenses has to be done again, because that money is spent. Paul and his fiancee Sarah will be left dangling again for who knows how long. I've been caught up in this case since practically the beginning. I was there sinking in my chair at the Crown Court in Doncaster in November 2010 and again at the High Court in February this year. It's not my life that has been disrupted by a prosecution that never should have gone ahead. I didn't lose two jobs because of a conviction that as many appeals failed to overturn. But I take each setback personally because this is important.

This is about the right to express oneself on the internet using satire and colourful language. To be able to stand up and emphatically declare in fewer than 141 characters "The next person who mentions the mess that Labour left us in is gonna get a brick aimed at his head." Or even, "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!!" to no one in particular. To everyone at once.

Jokes. Figures of speech. Flippant remarks. They may not be funny or even intended to be funny. For what it's worth, I don't think what Paul tweeted in January 2010 (which saw him led away from his office in handcuffs by anti-terror police) was funny. I don't think he was trying to be funny. I just think it's a shame that he didn't exaggerate enough to make it really clear to the morons who pursued him that this was a thing that was never going to happen in a million years. A criminal record can ruin a person's life. The threat of a criminal conviction can cause months of anxiety and distress. Criminal liability should not be doled out with casual disregard.

It doesn't matter that Paul was joking and that he didn't issue a threat or a hoax, because his words had the potential to menace members of the public. Two judges in separate trials decided this was so. The tweet is of an unambiguously menacing character, they said, and so it falls afoul of that section of the Communications Act 2003 that deals with the improper use of a public electronic communications network. And the flimsy guilty intent requirement is satisfied because Paul must obviously have known the words could cause menace. After all, he's not an idiot.

When the case arrived at the High Court, I was dismayed to find that the judges gave no time to arguments against the menacing character enjoined to the offending tweet. This had been stated as fact by the two lower court judges and so was outside the jurisdiction of an appeal by case stated, which only deals with points of law. The judges also suggested to counsel that Paul's tweet has to be examined in its context the moment it was sent, and anything we might later learn is immaterial.

The content and 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, our only case law precedent. But the reasoning that came to light in Chambers v DPP forces us 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 the lower court judges reached their decisions.

This is indeed thorny. Where the appeal had real promise though was with the proportionality argument. The European Convention on Human Rights requires that any interference with a Convention right must satisfy a pressing social need and be proportionate to the legitimate aim pursued. The justices and the DPP counsel acknowledged that the lower courts had failed to properly apply this test. For the appellant, Ben Emmerson QC made the point that where proportionality is concerned, the court ought to be able to look at the wider context of the tweet, i.e. all of the circumstances around it and the true meaning implied. The justices reserved judgement that day.

I left feeling deflated. I didn't like the fact that the case seemed to hinge entirely on proportionality. The best we could hope for was a sort of half victory. But the judges were unable to decide; therefore the lower court judgement stands while a fresh appeal is under way. The appeal mechanism will be the same as before, that of case stated. So presumably the menacing character of Paul's tweet is still accepted fact.

This adjournment offers some interesting considerations. Article 10 of ECHR sets out the right to free expression in its first paragraph. The second sets out the manner in which this right can be interfered with by the State. That reads "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

There's a lot going on in that paragraph, and I'm no lawyer but I can read just as well as the next guy and I'm good at logical reasoning. I have read on UK Human Rights Blog that where interference with Convention rights are concerned "prescribed by law" (sometimes "in accordance with the law") has a particular meaning whereby three conditions must be met:

(1) there must be a specific legal rule or regime which authorises the interference;
(2) the citizen must have adequate access to the law in question (The Sunday Times v United Kingdom (1979) 2 EHRR 245);
(3) the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied (Malone v United Kingdom (1984)7 EHRR 14).

Now, you're free to disagree, but when we have two senior judges spending four months failing to decide on points of law I can't see how the average citizen is able to foresee how that law might be applied. Paul certainly could not have foreseen this prosecution. David from Gwynedd, North Wales and an unnamed teen from Bury St. Edmunds could not have foreseen their prosecutions over riot related speech on Facebook to which they both unfortunately pleaded guilty despite insisting they'd been joking. The former served a four month jail term. Helen and Adam of East Dunbartonshire never imaged they would be arrested and charged over tweets suggesting their planning officers deserved to die horrible deaths. Those charges were dropped several months later with very little explanation. And Azhar Ahmed of Ravensthorpe, West Yorkshire still faces trial for a Facebook status in which he offered the opinion that all soldiers should die and go to hell. A police spokesperson is actually on the record saying "He didn’t make his point very well and that is why he has landed himself in bother." I wish him luck. He's clearly going to need it.

Logically, one might argue that a failure to reach a decision in Chambers v DPP should signal that the law lacks the necessary precision for compatibility with the Convention, which should then demand that the conviction is overturned and the law amended. But that's not how these appeals work. This has become the case that eats its own tail. Will this act of judicial cowardice be the stroke that finally wins the case for Paul Chambers? Sadly, I doubt it will carry any water. Fitting though that would be, the Law is not subordinate to logic. The Law is very much an ass. But after 2 and a half years of being messed about over a silly joke, it would be nice to see Paul get the last laugh.