Bad Law – the TwitterJokeTrial appeal

Tomorrow the appeal of the TwitterJokeTrial case will be heard at the High Court.  English law moves slowly.  It is well over a year since Doncaster Crown Courtupheld the original conviction of Paul Chambers for an offence under section 127(1) of the Communications Act 2003.  And it is over two years since the originaljokey but ill-fated tweet which ended up with him being arrested at his workplace.

This case became notorious in part as a result of my “Bad Law” post here at The Lawyer back in March 2010.   Now that I have now switched from being a legal blogger writing about the case to being the appellant’s solicitor (I happen to be a practising solicitor as well as a journalist) I am not able to write about the case as freely as I otherwise would do.

There are certain aspects of the case which are of interest to anyone with an interest in the relationship between social media and the criminal law.  The appeal is by way of “case stated”.  This means that there is no appeal of fact, and indeed the facts are agreed.  Nor is this an appeal against sentence.  The fine of £400 plus costs (now around £3400) – and the criminal record – will still stand unless the conviction is overturned.  The appeal is entirely on points of law.  

The facts are straightforward.  Paul’s offence under section 127(1) of the Communications Act 2003 was for sending by means of a “public electronic communications network”  a message of a “menacing” character.  The message in this case was a jokey and exasperated tweet to his then followers in respect of a snowbound airport: it was not sent to the airport, and when it was found in a search some days later it was graded as “non-credible” by the airport security manager.  However, the process in place meant that it was referred to the airport police, who did nothing, and then to South Yorkshire police, who arrested Paul at his workplace for a suspected “bomb hoax”.  The police in turn realised after interview that it was intended as no more than a joke; but they had to refer it to the Crown Prosecution Service for a decision.

The CPS agreed that it was not a bomb hoax offence, but they decided it was in the public interest to prosecute Paul under section 127.  This seems the first time it seems that this offence had been used in respect of an internet communication; indeed, before 2003 the predecessor telecommunications offence only related to telephony.  The CPS brought a prosecution at Doncaster Magistrates’ Court , and initially Paul pleaded guilty.  But after The Lawyer post was brought to his attention, he was able to vacate his plea.  Unfortunately, the Doncaster Magistrates’ Court then convicted him and the Crown Court upheld the conviction.  After an fund-raising campaign was launched, Paul decided to appeal to the High Court and was able to instruct Ben Emmerson QC and Sarah Przybylska as barristers. (My firm’s fees are being paid by an non-disclosed benefactor.)

Because this is the first “appellate” case on what constitutes a “menacing” communication over the internet, the decision of the High Court will have potentially immense significance for any person who sends any content over the internet (other than broadcasters who are carved out of section 127).  If the CPS are successful, then the threshold for criminal liability will be low; if the submissions of Paul’s legal team are accepted, then the threshold will be high.   The three particular points of Paul’s case are that the Magistrates’ Court and Crown Court adopted the wrong legal tests for the “guilty act” (actus reus) and for the “guilty intention” (mens rea) and that the prosecution was a disproportionate interference with his rights under Article 10 of the European Convention on Human Rights.

The judges will be Lord Justice Gross and Mr Justice Irwin and appeal will take place at the Royal Courts of Justice in the Strand. The time estimate is one day.

David Allen Green is media correspondent of The Lawyer and is solicitor for Paul Chambers in this appeal.