Friday, June 29, 2012

#TwitterJokeTrial - A glimpse of the finish line

Paul Chambers completed his first marathon in May 2012 and I'm sure he could hardly believe it when the finish line came into view. Now with any luck the longest run of his life may be nearly over.

I attended the 7th court hearing of Paul Chambers' so-called Twitter Joke Trial case on Wednesday, the 27th of June at the Royal Courts of Justice. The atmosphere of this hearing was quite different to that of the inconclusive appeal in February, the result of which was that the two judges on the panel were unable to agree. Wednesday's hearing was before a constitution of three judges, the central of which was no lesser personage than the Lord Chief Justice, Lord Judge, who is the top criminal judge in England and Wales. I'm told that upon learning that LCJ would preside, Paul's solicitor David Allen Green elected to change the approach. The arguments would focus on matters of criminal law and play down the human rights approach taken in February.

It was a real privilege to be installed in the impressive Victorian court room #4, which is LCJ's designated court, and to witness a judge of such standing. Lord Judge picked this case for himself in recognition that it is vital to the credibility of English justice that the outcome is decided carefully and sensibly. The Lord Chief Justice conducted the hearing with a courteous and cordial demeanour. At the start of the hearing he asked whether Mr Chambers was present because "I'd like to have a look at him." Gross LJ did not bother with such pleasantries in February.


All three judges on Wednesday were receptive and clearly doing their utmost to understand precisely what it was they were dealing with. The other two judges were Mr Justice Owen and Mr Justice Griffith Williams. John Cooper QC, for the appellant, did an admirable job of propounding the 10 major arguments in the 25 page skeleton submission. Although the panel decided that it was not necessary to allow the Article 19 organisation to join the proceedings as an intervenor, Cooper was permitted to refer to their submission. The main points laid out in the skeleton argument are as follows:

  1. Doncaster Crown Court did not apply the correct legal test for "menacing".
  2. Section 127 of the Communications Act (and its predecessors) were never intended to deal with communications to the world at large.
  3. Menacing character requires a higher threshold in order to be consistent with the other offences in the same listing.
  4. Not all threats are menaces. A menace is more serious than a mere threat.
  5. The test for menacing character is that an ordinary person would be menaced.
  6. The person sending the message must intend to threaten the person to whom the message is sent.
  7. The mens rea requires specific intent rather than basic intent.
  8. It is an objective test whether the message is menacing.
  9. Article 10 (European Convention on Human Rights - Free Expression) rights are engaged in this case.
  10. The social media platform Twitter, in the context of this case, is a content service rather than an electronic communications network and so falls outside the ambit of the statute.
I hope that Carl Gardner will not mind if I use his live tweeting of the hearing to complement my own notes and memory. I'll shift into the present tense. The arguments jump around a bit and I may have them out of order so it's hard to put them under specific headings, but on the first point Cooper argues that the Oxford English Dictionary definition of menacing referred to by the Crown Court does not provide sufficient clarity. He directs the judges to various authorities that better define "menace". This is a completely new line of argument to the case. Together David Allen Green and John Cooper hit upon the law regarding blackmail as a means of defining menace. The Larceny Act 1916 made it an offence to make unwarranted demands "with menaces"

In seeking to raise the threshold for menacing, Cooper relies heavily on a 1968 case R v Clear, in which Sellers LJ makes the following statement:
Words or conduct which would not intimidate or influence anyone to respond to the demand would not be menaces ... but threats and conduct of such a nature and such an extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwilling to the demand would be sufficient for a jury's consideration. [R v Clear [1968] 1 QB 670 at 679 to 680, 52 Cr App R 58 at 69]
Cooper uses this to argue that in order for a threat to be menacing, it must be a credible one. In other words there must be good reason to believe that the threat will be carried out. This is crucial, as all throughout the handling of the situation at Robin Hood Airport Paul's tweet was classed a non-credible threat. Cooper suggests that the threshold for menacing character is out of balance with the other types of offence in section 127.1 (grossly offensive, indecent, obscene) and also that it is out of balance with section 127.2 which makes it an offence to make use of a public electronic communications network in a variety of ways "for the purpose of causing annoyance, inconvenience or needless anxiety to another". This implies specific intent.

Cooper then goes on to make the controversial argument that intent is required in order for a message to have menacing character. In so doing he cites Sedley LJ in Collins [2005] EWHC 1308 and transposes the meaning to accommodate the different nature of the offence. Sedley in translation asserted that a message must seek to create a fear in the recipient. LCJ is troubled by this argument as the approach taken by Sedley differed from that of Bingham in DPP v Collins in the Lords 2006. Bingham is the authority. Sedley's remarks in the lower court were obiter dicta, meaning that his words are not binding in law. Cooper argues that as there is so little ratio (reasons for a decision) on menacing character, obiter is important.

On to mens rea (or the necessary guilty intent), Cooper suggests that the mens rea for grossly offensive is different to that of menacing, as a menace is a credible threat and so the sender of the message must have intended to threaten the recipient. Owen J asks how to objectively distinguish a menace from a threat. Cooper answers that it is hard to nail down, being very much reliant on the facts, but "I know it when I see it." This sounds like a reference to Justice Potter Stewart in the 1968 US Supreme Court case Jacobellis v. Ohio (378 U.S. 184, 197) dealing with obscenity.

Moving on to freedom of expression, LCJ asks Cooper to explain precisely how freedom of expression comes into this case. He insists (quite rightly of course) that the will of Parliament must prevail over Article 10 free speech rights. Freedom of Speech is a qualified right and can be legitimately interfered with through paragraph 2. Cooper argues that Article 10 is as much for protecting humorous speech as it is for subversive political expression. LCJ asks Cooper whether section 127 is incompatible with the Convention. Cooper suggests that if the Crown Court got it right in this case then the answer is yes. Article 10 means that higher thresholds must be read into s127 for both actus reus (guilty act) and mens rea.

Although Cooper practically apologised in his opening remarks for skeleton arguments along the lines that Twitter is exempt from the legislation, these arguments and the questions they aroused are actually quite interesting. Cooper argues that by the time Paul's tweet reached off-duty airport manager Duffield following his use of Twitter's search facility, it was not a message per se but rather a piece of content on a web site. Use of the search engine, he says, is akin to looking up page numbers for relevant content in the index of a book. This is such a simple and powerful analogy that I can't quite believe it hasn't come up before.

The judges understandably had quite a few questions. Did the tweet start as a message? At what point was it no longer a message? Is not the search result a record of a message? Does that change anything? Cooper argues that the tweet was not a message as far as Duffield and the airport are concerned. It was not directed to them and they were not expected to see it. The message (if indeed it is) was sent to the public timeline web page of Paul Chambers and was intended to be "received" by his followers who would have understood through reading his other tweets what the meaning and intentions were. Those people are the true intended recipients who might have regarded the tweet as a message.

The judges are not entirely convinced that the tweet was not a message when it was discovered by Duffield. LCJ points out that the offence is committed at the moment the message is sent, not when it is found later. Cooper acknowledges that a message with the required character does commit an offence the moment it is sent; however, the manner in which it is sent and where it was understood to end up are important. Section 127 was not designed to deal with the vagaries of social media. LCJ asks whether Cooper accepts that the message is sent the moment the send button is pressed, and the answer is yes. Cooper argues though that a tweet to the public timeline is not to be taken as communicating with the world at large. The airport only found the tweet because someone went looking for it.

LCJ asks whether Cooper would like to abandon the concession to the Crown Court that tweets to the public timeline are visible to the whole world. After a short recess, Cooper responds that the concession was correct. He does however explain that although the public tweets are accessible to anyone who knows how to find them, they are rarely accessed after much time has passed and are typically only seen by the followers. I suppose I failed to appreciate just how deep was the misunderstanding at the Crown Court of the mechanisms for reading tweets. Did HHJ Davies really believe that a public tweet goes to every user on Twitter somehow? Or maybe it was every person in the world with an internet connection? What I still have not heard argued is that tweets sent as replies are every bit as accessible to the public through the same mechanisms after the fact.

There's some talk about appeal on sentencing. LCJ wants to know what Cooper would seek for his client should the appeal not be won. Cooper suggests he would seek an absolute discharge. He then runs through the arguments again. The tweet was not menacing. It was not even threatening. It was a joke, never intended to be taken seriously. The joke was written in cartoon language, with an imprecise time frame and no clear ultimatum. It cannot be taken seriously. Paul specifically avoided directing his tweet to anyone involved with the airport. Had he wanted to make a real threat, he could have easily done so. Cooper compares the tweet to Betjeman's "Come Friendly Bombs" poem and Shakespeare's line "First thing we do, let's kill all the lawyers." That gets a good laugh among the bench and the gallery alike. When the laughter dies down, LCJ says good humouredly "That was a good joke in 1600, and it's still a good joke today." A nice moment.

LCJ asks the very sensible question of whether Parliament were aware of Twitter in 2003 when the Communications Bill was enacted. After conferring with the legal team, Cooper responds that Twitter was invented in 2006 and platforms like it were hitherto unknown at that time. The judges seem to finally appreciate that they're dealing with a completely unanticipated situation. Some discussion about jurisdiction of sentencing ensued, then Cooper sat down to allow David Smith QC to rise for the respondent.


Smith submits to the court that it can only quash the sentence if it concludes that no reasonable jurist would have handed it out. He seems to have picked up on the mood that the judges are aware that this conviction was problematic and needs to be overturned somehow. He is inviting them not to consider the easy way out, which would be an absolute discharge. An absolute discharge would clear Paul's record completely, but he would be unable to recover costs and may still have to pay the CPS court costs. It would also fail to set a precedent in law. It's not clear to me why the DPP would argue against this.

Apart from the aforementioned, there's not really much of anything new in the DPP's arguments since February. The Crown Court did not concern itself with the context in which the message was read, but only at the time it was sent. It also relied on communications between Paul and his girlfriend to enhance the notion of terrorism on Paul's mind. He had tweeted to her that he "might have to resort to terrorism". This, they felt, indicated that he knew full well what he was doing. I completely disagree. On the contrary, it shows that the tweet to the public timeline was simply a continuation of a train of thought. The terrorism motif is itself arguably just a subconscious nod to the historical conflict in Northern Ireland. The tweets to Sarah (@crazycolours) do nothing to heighten mens rea. Paul didn't imagine any of these communications would arouse fear in anyone.

After a lunch break, Smith continues with his submissions. He argues (mostly from DPP v Collins) that the necessary intent is satisfied so long as the sender is aware that the message might be read by someone who could reasonably regard it as a threat and be frightened. Owen J suggests that what happens to the message after it is sent (as understood by the sender) could have an impact on mens rea. Smith doesn't think so. He says, basically, that most people (i.e. twitter users) would be aware of what a member of the general public would find grossly offensive or menacing and behave accordingly.

Past tense again for a bit. I may have imagined this, but it seems to me that the judges were not really impressed by that argument. Perhaps they felt the winds produced by about a hundred people vigorously shaking their heads, rolling their eyes, and snorting. I tell you it was enough to slightly disturb a pile of papers a few meters away. After all, the only reason we're even here is because thousands of people disagree that this tweet was something that constitutes a crime. Hundreds of people gave money to a fund to allow this, the 7th hearing to happen, and the 6th, and the 5th, and the 4th, and the 3rd even.

Smith makes what seems at first to be a strange argument. He outlines the process by which the CPS make a decision to prosecute, known as the Full Code Test. It consists first of an evidential stage and then of a public interest stage. He says that the CPS followed its code and made a proper decision to prosecute. LCJ, somewhat incredulous, asks what the CPS decision to prosecute has to do with this court? Smith appears to be defending the decision to prosecute; however, he is merely stating a view that the impact of Article 10 is not to heighten the thresholds for the evidential stage, but rather to inform the public interest stage. I do not like this one bit. The CPS have in my opinion not been giving due regard to Article 10 issues in recent communications prosecutions (sometimes not even due regard to evidence) and they are entitled to a qualified Freedom of Information exemption from disclosing their decision making.

There are some other submissions, but nothing earth shattering. Overall, I think we made the better impression. I left the court feeling optimistic and I still feel good about it. I think the judges know that there's something that needs fixing (a bug in the system). The only question is how. Hopefully we'll find out within a few weeks.

1 comment:

  1. That is some damned comprehensive reporting dude. Damned good job.