What has prompted me to return to this case is a recent news item about the resolution of a similar case involving a conservative councillor named Gareth Compton and a journalist called Yasmin Alibhai-Brown. Read all about that here. Compton was arrested in November 2010 and charged with sending a menacing message, which is an offence under section 127 of the Communications Act 2003. This is the exact same charge under which Paul Chambers was prosecuted for his unfortunate Twitter update that suggested ironically that he would be prepared to blow up an airport. Both were regarded by their authors as ill-conceived and daft attempts at humour. One man has been found guilty, while the other will not be prosecuted. In a statement from the Crown Prosecution Service we learn that "Ms Alibhai-Brown has refused to make any complaint to the police on the matter and the member of the public who initially reported this mater[sic] has also refused to provide the prosecution with a statement." And perhaps crucially, we are told the following:
"A file was then submitted to the reviewing lawyer who has carefully reviewed all of the evidence, as well as the fact that we have no statement of complaint, and they have decided there is insufficient evidence for a realistic prospect of conviction."So the CPS have concluded that the evidential part of its two part Full Code Test is not satisfied in this case. Part of the reason for this is that there is no statement of complaint. Paul Chambers was very unlucky when he was charged in January 2010. The South Yorkshire CPS had mistakenly believed that a section 127 offence carried a strict liability. Paul was told that as he had admitted to committing the act for which he had been charged (the actus reus), he had no choice but to plead guilty. A strict liability offence does not require proof of the intention to commit the offence (the mens rea). Because of this, the CPS concluded that the evidential test was satisfied as a matter of course. Paul's initial guilty plea ensured that. Had Paul received better legal advice in the beginning then one imagines that the entire case would probably have been dropped then and there. In fact I have it on good authority that the CPS would not have pursued a prosecution under section 127 had they been aware that mens rea was required. A 2006 precedent in the House of Lords, DPP v Collins, determined that there is a burden of proof as to intent in a section 127.1 offence, albeit a rather weak one. The CPS' ignorance of this case law is inexcusable and worthy of strong censure. Gareth Compton can thank Paul Chambers (as well as criminal lawyer and legal blogger Jack-of-Kent) for the Crown's edification on this point of law.
DPP v Collins sets out a low threshold for both the actus reus and the mens rea. The act is committed so long as a qualifying message is sent via a qualifying public electronic communications network. It does not matter whether the message actually elicits the reaction in a recipient of being regarded as grossly offensive or of an indecent, obscene or menacing character. It would not matter in fact that the message is not received by anyone at all, except insofar as it is reported to the relevant authorities. The act of sending is sufficient. For mens rea, the Lords have also defined a strangely low threshold. While the Lords recognise that it is essential to examine any message within the context of a fair and just multi-racial society and to recognize that the meaning of a message can be quite different from its literal content, it is only necessary that the sender at the very least be aware that the message is couched in terms likely to be regarded as grossly offensive or of an indecent, obscene or menacing character. I consider it extremely unfair to expect a person to be aware of all the various ways in which his electronic message (taken out of context) might be interpreted. This is a particular problem in these new forms of broadcast style communication where we often forget that our messages might be viewed by people who do not know us.
But that's a lot of nuance that we don't really need to discuss right now. What's important is that in the case of R v Paul Chambers, the prosecution has maintained that it is not necessary for a message to be received in order for it to constitute an offence. They have used this reasoning to convince two judges and a pair of lay magistrates that the opinions and reactions of all the various people whom we know received and read Paul's message can be disregarded. All the officials (from airport duty manager Sean Duffield, through to the interrogating officer) concluded that the message was not threatening. "Non-credible threat" is the term that was used by the airport security staff, which is the lowest designation that can be given to any potential threat. The interrogating officer wrote in his notes "There is no evidence at this stage that this is anything other than a foolish comment posted on Twitter as a joke for only his close friends to see", a piece of evidence that was only supplied to the defence on appeal. None of Paul's nearly 700 timeline followers thought that there was any cause for concern after having read his tweet. Had any one of them replied to Paul with concerns he would have had the opportunity to apologize and clarify. Had Sean Duffield or the airport or the police contacted Paul informally he could have set the matter to rest. Most imporantly though, there was no complaint of any kind. I defy anyone to produce a complaint about Paul's tweet in any form prior to his arrest. There was none. Duffield was duty bound to report the incident as per the airport's zero tolerance policy. He is not permitted to rely on his common sense judgement. His report cannot be regarded as a complaint.
How does the CPS statement, to the effect that the lack of any complaint makes the prospect of a conviction unlikely, square with its case against Paul Chambers? There is clearly a double standard at work here. Many of us have long suspected that this case was a stitch-up. In other words the Crown, knowing that there was insufficient evidence to prosecute under the original charge arising from the Criminal Law Act 1977, decided that the incident was of a sufficiently serious nature and in the public interest (given its association with airport travel and terrorism) that it warranted a criminal charge. So they set about finding one and struck upon this obscure communications statute, which was then incompetently misconstrued and misapplied. This is my opinion. I am not leveling an accusation at the Crown Prosecution Service, but I have yet to be convinced otherwise. It seems to me now though that the CPS have come to realize that their misapplication of this law calls for the prosecution of every poor fool like Compton who finds himself swept up in their dragnet. Clearly this is a herculean task (as so many of us have liked to point out), and it seems they no longer have the stomach for it. I'd like to think that the CPS will now drop this case before it descends any further into farce. On the other hand, I do want to see a successful appeal to the High Court that will create a more appropriate precedent for the future than DPP v Collins, in which the Lords were unable to see the ramifications of their judgement beyond the narrow scope of nuisance telephone calls. The next couple months should be interesting.