Twitter jokes: free speech on trial

The Twitter Joke Trial: how it happened, what it means, and the struggle to balance civility and civil liberties

On 27 July, the Lord Chief Justice of England and Wales handed down the final judgment in what had become known as the Twitter Joke Trial. Considering that this was the culmination of a two-and-a-half-year process, the assembled crowd didn’t get much of a show. It took only a few minutes for Paul Chambers to be told that he should never have been convicted of the charges that had been brought against him in Doncaster magistrates’ court, and was now acquitted. It was his third attempt to appeal the conviction.

So why was a trainee accountant of entirely blameless character arrested in front of his colleagues, questioned by police, charged by the Crown Prosecution Service, convicted, fined £1,000, fired from his job, and left dependent on the goodwill of celebrities, the donations of internet users and the tenacity of a legal blogger to put his life back together – all over one flippant tweet?

Sadly, the Director of Public Prosecutions has so far offered no good explanation. But at least, now that this bizarre case has finally been thrown out, we can be sure that nobody else will fall into the same black hole.

Or can we? Section 127 of the Communications Act 2003, under which Paul was charged, remains on the statute books and seems increasingly to be used as a catch-all for online behaviour that isn’t caught by more specific laws. And it’s not the only legislation being used against people who do no more than write words on a screen.

In some instances these laws may provide a necessary way to punish and deter the kind of verbal abuse that can make people’s online lives a misery, whether via Twitter, Facebook or other services. In others, it looks like a worryingly broad licence for the authorities to interfere with everyday speech, which increasingly takes place in the digital realm. And while the Lord Chief Justice’s remarks in the Twitter Joke Trial judgment provide a useful steer to police and prosecutors on when a communication can and can’t be considered ‘menacing’, more than enough ambiguities remain to blur the line that separates ordinary people from the nightmare of arrest, conviction, and even a potential jail sentence.

On 6 January 2010, Paul was looking forward to a planned meeting with a woman he’d begun talking to on Twitter. Since she lived in Northern Ireland, and he in Yorkshire, he’d booked a flight from Robin Hood Airport Doncaster Sheffield, as the local transport hub is cumbersomely known, on the 15th. But he’d just learned from the internet that snow had forced the airport to close. During a series of tweets exchanging pleasantries with his date, who went (and still goes) by the handle @crazycolours, Paul tweeted:

"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!!"

Besides @crazycolours, this would have been seen by some of Paul’s 600-odd followers. Knowing Paul as they did, none of them thought it a particularly unusual tweet, and – like most things on Twitter – it quickly scrolled up the timeline and was forgotten.

A week later, police arrived at Paul’s place of work and asked for him by name. "My first thought was that perhaps a member of my family had been in an accident," Paul later told the Independent. "Then they said I was being arrested under the Terrorism Act and produced a piece of paper. It was a print-out of my Twitter page. That was when it dawned on me."

The officers involved would later say that they never took the tweet particularly seriously. But this seemed far from clear as they drove Paul to the police station and questioned him for two hours. After spending another hour in a cell, he was released while South Yorkshire police and the CPS decided how to proceed. His iPhone, which had been used to send the tweet, and two computers were impounded, despite the absence of any obvious reason why they would need to be examined.

The first decision that was made was that Paul couldn’t be charged with making a bomb hoax, a specific offence contained in section 51 of the Criminal Law Act 1977. To obtain a conviction under this legislation, the CPS would have had to show beyond reasonable doubt that the defendant intended to induce in another person a false belief that a bomb or other thing liable to explode or ignite was present. Clearly, Paul’s tweet had no such intention. If he’d intended to make staff at Robin Hood Airport think something was going to explode, he could have rung them up and told them so. What he actually did was post a tweet for the amusement of his own friends and acquaintances.

It was only by a remote chance that the tweet ever came to the attention of the airport. A manager at Robin Hood was searching Twitter five days later, while off duty, because he’d heard the airport had a Twitter account and wanted to see what it was like. When Paul’s tweet came up in his search results, he wasn’t sure what to make of it. (Here, again, was someone unfamilar with Twitter.) He reported it to his superior, who rated it "non credible" as a threat – "not least," as the Lord Chief Justice pointed out drily in his eventual appeal judgment, "because it featured the appellant’s name and the appellant was due to fly from the airport in the near future". Accordingly, rather than notifying the Ministry of Defence, this person passed the tweet to the airport police.

They in turn waited two days before passing on the investigation to their colleagues at Doncaster police station, who arrested Paul and proceeded to question him. "I had to explain Twitter to them because they'd never heard of it," he later told journalists. But if things weren’t quite clear to the detectives at the start, they certainly were by the time they wrote up the case file. It states: "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."

This accurate appraisal could very easily have led to the correct view being formed: that no offence had been committed. Yet rather than letting the matter drop, South Yorkshire police now began to show worrying signs of digging in for a fight. Responding to media enquiries about the arrest, they issued a statement referring to "alleged threats about Robin Hood airport discovered on a social networking website" and adding: "The Force take such misuse of these sites seriously and will take robust action to deal with those who choose to use them in such a way as to cause unnecessary alarm and distress to members of the public."

This was an extraordinary way to characterise Paul’s case. No-one had alleged that the tweet was a threat. There was no evidence or suggestion that any member of the public had been alarmed or distressed. And the force seemed poorly qualified to pontificate about "misuse" of a social network, demonstrating little knowledge or experience of how social networks were used at all.

Heavy-handed treatment

With Paul Chambers out on bail and "huge public and media interest" (as a further statement put it) no doubt causing jitters higher up the pecking order, South Yorkshire police turned to the CPS for a "decision on disposal". Rejecting the option of issuing Paul with a caution, the CPS opted to charge him, but at this point were strangely coy about exactly what that charge would be.

I had to explain Twitter to them because they'd never heard of it

The offence they’d come up with was not one that was well known at the time. Section 127 of the Communications Act 2003 has roots going back to the Post Office (Amendment) Act 1935. The legislation has evolved every few decades to keep up with developments in technology – but not fast enough for the 2003 Act to have anticipated Twitter, which launched in 2006. Yet s127.1 seemed to provide what was needed to prosecute Paul Chambers, which the CPS had decided it should do in the public interest:

"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."

This remarkably broad provision, created when the telephone was the predominant communications network, risked making itself ridiculous when applied to the panoply of online services available in 2010. Offensive, indecent and obscene matter of one sort or another flows across the internet daily in quantities unfathomable to the average JP, and without the filter of aggravating factors, any attempt to halt it, message by message, would surely embarrass a Canute.

This appears not to have occurred to the CPS, perhaps, again, due to a general unfamiliarity with the realities of the internet age. Their contention was that Paul’s tweet was "menacing".

At around this time the case came to the attention of David Allen Green, head of media at the London law firm of Preiskel & Co and a well-regarded blogger under the pen name "Jack of Kent". Green, whose familiarity with social media was rather more advanced, raised the issue with the CPS of the apparently over-broad scope of section 127 as they proposed to apply it.

"Bloggers and twitterers [sic] should be aware," responded the CPS, "that there are several Acts which cover potential communications offences. It is not funny to make jokes of this nature as it can cause serious disruption to transport services and divert police attention away from genuine crimes."

But this fell short of showing that parliament had intended to criminalise such jokes, however unfunny. And there had been no disruption to transport services as a result of Paul’s tweet. Even if there had been, the CPS had already acknowledged that Paul couldn’t have foreseen that, because "there was no evidence that he intended to induce in the recipient a false belief there really was a bomb" – and that was why the CPS itself had taken the decision that he couldn’t be prosecuted under the Criminal Law Act. If nobody thought the airport was going to explode, what would cause disruption?

Pleading guilty

Unfortunately, Paul Chambers and his solicitor had been led by the CPS to believe that the offence he was charged with was one of "strict liability", meaning that the mere fact of his having sent the "message", which he didn’t dispute, would be sufficient to obtain a conviction. This appears to have been the CPS’s honest, but completely erroneous, interpretation of the law at the time.

As a result, Paul made the only choice that seemed open to him, and entered a plea of guilty to attract a reduced sentence. Offences under section 127 carry a maximum term of six months in prison.

At this point, however, Paul’s attention was drawn to an article by David Allen Green in The Lawyer raising doubts about the CPS’s approach to the case and whether the offence could properly be treated as one of strict liability. Paul instructed new solicitors and applied to vacate his plea.

With a criminal record, he stood little chance of getting another job

In May, the case was re-heard in the magistrates’ court. To the surprise of almost everyone involved, the district judge, Jonathan Bennett, found Paul guilty. While accepting that the tweet was one of a number that employed "hyperbole" and "ridiculous suggestions", he noted that "we live in a society where there are huge security concerns particularly in relation to airports and air travel", and accordingly decided he could have "no doubt that the remark posted by the defendant is menacing".

This dealt with actus reus: whether Paul had done what the prosecution alleged (sent a menacing communication). More promisingly, however, Judge Bennett agreed with the defence that, by reference to the remarks of Lord Bingham in the case of DPP vs Colllins (2006), which in turn referred to Sweet v Parsley (1970), it must be presumed that Parliament intended that mens rea, the state of mind or intention of the defendant, was also to be proved.

Astonishingly, however, Judge Bennett proceeded to find, on the basis of what seemed rather vague reasoning, that he could not take Paul’s insistence that he had no intention of menacing anyone "at face value". Since he had experience of air travel and of Twitter, Paul must have been "aware that this was of a menacing nature". He was fined £385 and ordered to pay £600 costs and a standard £15 victim surcharge.

The effect of the conviction was disastrous. Having been suspended from his job as a financial supervisor on his arrest, Paul’s employment was now terminated; criminal convictions aren’t welcomed in accountancy. With a criminal record, he stood little chance of getting another job. At 27, having done (as the Lord Chief Justice would later rule) nothing wrong, he was out of pocket, unemployed, and understandably bitter.

On the plus side, he had eventually managed to visit @crazycolours, and things had gone rather well.

As a media lawyer with some experience of the application of law such as the Communications Act, David Allen Green was not impressed by Judge Bennett’s ruling. On his Jack of Kent blog, he wrote: "Regular readers of this blog will know I rarely criticise judges. However, I believe [this] judgment is not only illiberal and incorrect. I believe it is a disgrace."

At this point Green had an opportunity to do more than just blog about the case. Having discussed it with him on many occasions, not least via Twitter, Paul Chambers now made the decision to invite Green formally to coordinate an appeal, retaining Richard Haigh, the solicitor who had mounted the original defence, and, through Green, instructing Stephen Ferguson, a prominent defence barrister.

The appeal had three prongs: that, in respect of actus reus, the tweet was not menacing, because in itself it was clearly a joke and in its effect it had menaced no-one; that, in respect of mens rea (which the CPS now conceded it needed to address to obtain a s127 conviction), Paul had had no intent to send a menacing message, and had neither done anything suggestive of that, such as directing the tweet to the airport, nor demonstrated any prior awareness that anyone might find his words menacing; and that the tweet was not in any case a "message sent over a public telecommunications network" in the accepted sense.

The appeal was denied.

Fighting fund

"We are satisfied, on the evidence," said circuit judge Jacqueline Davies, "that the message is menacing in its content and obviously so. It is difficult to imagine anything more clear." As for mens rea, "we find it impossible to accept that anyone living in this country, in the current climate of terrorist threats, particularly at airports, would not be aware of the consequences of his actions in making such a statement."

The choice for Paul now was whether to give up and cut his losses or press on to the next avenue of appeal. The problem with the latter course was that preparing a case for the high court would be a much bigger undertaking, requiring more legal work than could be scraped up pro bono and requiring substantial financial backing.

A campaign began to repeat Paul’s original tweet as many times as possible

When Paul decided he would, if possible, keep going, the Twitterati who’d been following the case sprang into action. No sooner had the initial appeal been lost than a campaign began to repeat Paul’s original tweet as many times as possible, demonstrating the foolishness of prosecuting one instance. Under the #iamspartacus hashtag coined by musician @christt, thousands of users obliged.

But more concrete assistance was going to be needed in the form of hard cash. Supporter @cripesonfriday volunteered to manage a fighting fund, and by April 2011 comedians including Stephen Fry, Al Murray, Jack Whitehall, Graham Linehan, David Schneider, Susan Calman and Katy Brand had signed up for a benefit gig. This and individual donations created a sufficient "Twitter Joke Trial Fund" to cover Paul’s costs.

With Green now the sole solicitor, and Matrix Chambers human rights silk Ben Emmerson QC leading, the appeal was finally heard by two senior judges in February 2012. Taking a broader view and engaging in some debate, Emmerson, Sir Peter Gross and Mr Justice Irwin considered the balance between actus reus and mens rea.

In essence, the defence’s position was that if Paul hadn’t intended to send a menacing message, and hadn’t anticipated such an effect, then it would be wrong to punish him for it. "Does the history of human conduct ever have it that anyone planning to blow up an airport has gone on a public networking site and said they were going to do it?" he asked.

But the judges, and Irwin in particular, seemed more inclined to give weight to whether the message was objectively menacing. Although "one does not want to have a situation where things that clearly are jokes are prosecuted as criminal offences," said Irwin, a message that "might be serious" could "cause a great deal of grief".

Emmerson also raised the issue of freedom of speech, which is guaranteed by Article 10 of the European Convention on Human Rights. English law must be applied in a way that’s compatible with this. Either the court must reject the whole case as a disproportionate interference with free speech, argued Emmerson, or it must apply a high threshold to concepts like "menace" so as not to criminalise swathes of speech acts. The issue of proportionality seemed to catch the interest of the judges.

When the panel retired to produce a written verdict, the end seemed to be in sight – one way or another. But on 28 May the two judges announced that they couldn’t agree on a verdict. With no casting vote, the appeal would have to be re-heard. Such deadlocks are extremely rare.

While this was a disappointment, it soon became clear that it could be a breakthrough when a new panel of three judges was chosen and included the Lord Chief Justice, Lord Judge. Paul’s defence team, now consisting of David Allen Green, junior barrister Sarah Przybylska and John Cooper QC, went back to the drawing board to come up with new angles on the Communications Act offence, even attacking the definition of "menace" by reference to other areas of law, including blackmail. All avenues were explored.

The final hearing began on 22 June, and on the last day Paul was accompanied to the Royal Courts of Justice by Stephen Fry, Al Murray and other supporters. Once again, judgment was reserved, and there was an anxious wait until word came down that a verdict would be delivered on 27 July. When it came, it was brief and simple, setting aside the more abstruse arguments and getting back to the fundamental issue: had Paul done anything criminal by sending a facetious tweet?

No, the judges concluded, he had not. If the defendant intended the message as a joke, "even a poor joke in bad taste", it would be "unlikely" that the mens rea required for conviction could be established. But that was by the by in this case, because the appeal would be allowed on the issue of actus reus. The Crown Court had concluded as a matter of fact (something the previous panel was reluctant to interfere with) that the tweet was objectively menacing. But given the tone and context of the tweet, the unhurried reaction of the police, and Paul’s consistent assertion that it was just a joke, this decision "was not open to" the court, wrote the Lord Chief Justice – as near as one judge gets to saying another simply got it wrong.

Avoiding a repeat

What can we learn from the Twitter Joke Trial? First of all, like it or not, Twitter and other such services, including Facebook, are indeed "public electronic communications networks" for the purposes of the Communications Act 2003, and we all need to watch out for section 127. "Not just for menace," points out David Allen Green – "section 127 also covers grossly offensive, indecent and obscene matter, and s127.2 goes to causing alarm or distress. This case clarifies that emails and messages to platforms on the internet are “messages sent over a public communications network”. There was no previous case law on that; nobody had quite tested what was covered."

On the other hand, the judgment "sends a signal to the CPS and police that they can’t just use this offence as a sort of digital equivalent of the Public Order Act," says Green. "Sections 4, 4a and 5 more or less give power to arrest at will – it’s a grossly offensive piece of legislation. The High Court actually saying menace means you’ve got to put somebody in fear means [the application of the Communications Act s127] is quite limited."

What’s also been highlighted, all too obviously, is that "there’s a division between people who get social media and those who don’t. I remember trying to explain it at Doncaster Crown Court – it was like banging your head against a wall. Paul Chambers’ very quiet and dignified stance meant he kept the case going for two-and-a-half years until the judiciary got it."

Green is magnanimous about the failings of the system along the way, reserving his ire for the Director of Public Prosecutions, who intervened personally at one stage to prevent the case against Paul Chambers being dropped. "Most police officers and courts don’t knowingly do wrong. You just have different world views. What we had to do in this case was recalibrate it.

"English judges are prone to say context is everything, but we had to show the court it was not about the context of terrorism and security but being able to talk in a conversational way."

Now settled into a new home with @crazycolours, and back in employment, Paul Chambers is an unlikely but important symbol of our re-established right to speak freely online. As defence barrister Sarah Przybylska put it on the steps of the high court: "Twitter users can be confident now that if they’re sending a joke to their mates, whether it’s a good joke or a bad joke, they’re pretty safe – and if they’re not, me and John Cooper and David will defend them!"