And what he was charged and prosecuted for suggests that a significant injustice may be occurring, and which may occur again for other bloggers, twitterers, commenters, and other users of the internet. Indeed, it may affect anyone who sends an email, even if there is a delivery failure.
The starting point is that there is a specific offence in English law in respect of making a bomb hoax. It is contained in section 51 of the Criminal Law Act 1977. Section 51(1) provides for those who place or dispatch actual articles, but section 51(2) deals with those who communicate hoaxes:
“A person who communicates any information which he knows or believes to be false to another person with the intention of inducing in him or any other person a false belief that a bomb or other thing liable to explode or ignite is present in any place or location whatever is guilty of an offence.”
The 1977 Act further provides that for a person to be guilty of this offence it is not necessary for him to have any particular person in mind as the person in whom he intends to induce the belief that there is a bomb or similar device. A person found guilty can be sentenced in the Magistrates’ Court for up to six months, or in the Crown Court for up to seven years.
However, the Crown would have to discharge a high burden of evidential proof to convict under this offence: they have 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 is present. Unless the prosecution can show this then the defendant cannot be convicted.
Even a free speech liberal can hardly complain at such a prohibition. As Oliver Wendell Holmes correctly observed, the most stringent protection of free speech would – and should – not protect a man falsely shouting fire in a theatre and causing a panic.
And so, if there has to be an offence of making bomb hoaxes – a legitimate incursion into the right of free expression – it seems that the 1977 Act strikes the right balance with its onerous requirement on the prosecution before any defendant can incur criminal liability.
Paul Chambers was duly arrested in January by South Yorkshire police on suspicion of communicating a bomb hoax under the 1977 Act; the police confirmed: “[t]he arrest relates to alleged threats about Robin Hood Airport discovered on a social networking website”.
Do note that word “threats” here as it indicates – at this point – the seriousness of the apparent offence, at least in the eyes of the police. The police then added: “[t]he 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.”
Of course, no alarm or distress – let alone “unnecessary alarm of distress” – had been caused whatsoever. The silly joke had been reported to the police and the airport by a third party; it would appear that no one who saw the tweet regarded it as serious. The airport later confirmed no inconvenience had been caused, other than in respect of the investigation. Notwithstanding their worthy press statements, South Yorkshire Police were beginning to look very foolish indeed.
Nonetheless, Paul Chambers was placed on bail. A further police statement said:
“There was huge public and media interest in this case. Whilst the investigation and collation of evidence was straightforward, due to the wide-spread interest in the use of Twitter in this way, the case was referred to CPS to make the decision on disposal. Based on this “public interest test” it was not appropriate for police to make this decision.
“The CPS themselves could have decided on a caution, but based on the evidence and the public interest they decided to charge in this case, a decision that the police feel is appropriate.”
The CPS did not decide on a caution; they decided to charge.
And, curiously and importantly, this statement did not mention what Paul Chambers was to be charged with.
The CPS had decided to charge him, but not with the offence which Parliament actually legislated for in the 1977 Act, which would require them showing evidence of Paul Chambers intending others to believe there was a bomb hoax.
Instead the CPS decided to charge him under the little-known – and in many ways worrying – offence under section 127 of the Communications Act 2003. The 1977 Act, with its protection for defendants, was effectively side-stepped.
The next police statement said: “[a] 26-year-old Balby man has been charged with sending, by a public communications network, a
message that was grossly offensive or of an indecent, obscene or menacing character, contrary to section 127 of the Communications Act 2003.”
The relevant portions of section 127 of the Communications Act 2003 state:
Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) 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; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
It can be inferred that Paul Chambers was prosecuted under section 127(1) – for sending a “menacing” message – not section 127(2), in respect of, say, causing annoyance, inconvenience or needless anxiety to another.
Now this is a different offence than for which Paul Chambers was arrested.
This 2003 provision is based on an earlier provision in the 1984 Telecommunications Act, which (in those pre-internet days) was intended to deal with nuisance telephone callers.
However, the broad definition of “public communications network” now means the offence covers the internet as much as a telephone call: and so it covers emails and internet postings of any kind.
In Collins, a House of Lords case of 2006 it was decided that under section 127(1) the message did not even need to be received: the offence was committed the moment “a grossly offensive” message was sent. The only additional requirement was that the sender intended the message to be offensive to whom they related or be aware that they be taken to be so.
This case dealt with someone leaving obnoxious and racist voice messages on an answering machine – the “grossly offensive” part of the offence rather than the “menacing” element under which Paul Chambers was charged. The House of Lords decided it did not matter if those messages were ever heard or, if heard, did not cause offence.
Presumably the “menacing” element of section 127(1) would be treated in a similar way. It did not matter if the message was received, which would not count in the favour of Paul Chambers; but the offence surely still required Paul Chambers to have intended the message to be menacing to whom it related or be aware that it may be taken to be so.
It seemed to me to be the wrong offence in a prosecution which could not be in the public interest. It also seemed to me to be a huge leap to take section 127(1) from its application to telephone calls to a Twitter posting just because of the technological contingency of the internet being an aspect of a public telecommunications service.
So I asked the CPS why this prosecution was seen to be in the public interest. Their response was:
“While Mr Chambers may have meant this as a joke, the airport could not risk treating it as such. The threat had to be taken seriously by the airport authorities, who contacted the police. It caused unnecessary disruption because of a menacing communication.”
The CPS added:
“The police and the CPS, in the current climate, take any hoaxes very seriously. In the wake of the 7/7 bombings in London, for example, there were a number of bomb hoax cases around the country which resulted in prosecutions under various acts, mainly the Criminal Law Act or the Public Order Act.”
I then asked why was the prosecution under section 127 of the Communications Act (and not under the 1977 Act). Their response was:
“Section 127 of the Communications Act 2003 was considered to be the correct charge in the particular circumstances of the case. Under 127(1) an offence is committed where suspect sends by means of a public electronic telecommunications system a message or other matter that is “grossly offensive, or of an indecent obscene or menacing character”. A message can be any of these (rather than having to be all of them) and the message in this case was clearly of a menacing character.
“A more serious charge under section 51 Criminal Law Act 1977 was considered but was not felt to be appropriate as there was no evidence that he intended to induce in the recipient a false belief there really was a bomb.”
In other words, the legislation which actually relates to bomb hoaxes was disregarded. Paul Chambers could not be convicted under the legislation in respect of bomb hoaxes, but the “public interest” required that he had to be prosecuted anyway.
I then asked what the CPS say to bloggers and twitterers about the potentially very wide (and worrying) scope of section 127 of the Communications Act. Their response was:
“Bloggers and twitterers should be aware that there are several Acts which cover potential communications offences – please see the guidance on the CPS website. 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. Where a complaint is made to the police and they pass a file of evidence to the CPS we will look at it. If the evidence is there, then the public interest will usually require a prosecution.”
But it still appeared to me to be a misuse of the 2003 Act to still prosecute someone where the CPS decides that the specific 1977 offence is not appropriate. So I asked whether this made the 1977 Act redundant:
“It doesn’t mean the 1977 Act is redundant but that the 2003 Act can be used in circumstances where there is a threat but it is not specific enough to be seen as a “bomb hoax”. It might be for, example, the threat of releasing or sending anthrax or to a threat to a supermarket that their goods would be contaminated. The Criminal Law Act sections 51 (1) and (2) is worded around things exploding or igniting. It would depend on the circumstances of the case and the specific threats made as to what charge is preferred.”
I then asked whether the CPS aware of any other prosecution re a bomb hoax where (a) the hoax was not actually communicated to the airport or police (b) it was prosecuted under s 127 of the Communications Act?
Their responses to these were:
“In answer to a) quite a few. Following 7/7, we had a man who went into a bank who told a cashier that if he did not get a loan, he would blow himself up like the bombings in London; a student who sent an email round his university campus saying there was a bomb in the hall of residence; a store manager who wrote “boom!” on a package at his firm, so the bomb squad was called; a call to a market in the West Midlands…others were either 999 calls, calls to the police by the individual or calls from members of the public. These were only some of the ones we noted as reported in the media. There were probably a lot more which weren’t picked up by the media.
b) They were mostly charged under the Criminal Law act because the bomb threat was quite explicit. This was not the case with Chambers.”
Paul Chambers is reported to have pleaded guilty to the section 127 offence and faces sentencing next week.
However, it seems to me that section 127 is being used here in an inappropriate way. Either Paul Chambers committed the bomb hoax offence for which he was actually arrested, or he did not.
And if he did not, then it seems to me somewhat artificial to invoke section 127. Even the CPS’s own guidance states that:
“It is more appropriate to charge bomb hoaxes under section 51 of the Criminal Law Act 1977.”
In their decision to prosecute Paul Chambers in the “public interest” even there was not sufficient evidence for a conviction under the 1977 Act, the CPS are perhaps sending a troubling signal to internet users.
Specific legislation which contain important procedural and evidential safeguards will be avoided in favour of using section 127 as a “mop up” criminal offence. The CPS now hold the view that an offence intended originally to catch abusive telephone callers can and will be applied to any poster, blogger, commenter, twitterer, or even email sender. It will also presumably cover all websites and other internet data.
It may well be that there should be legislation criminalising all internet-based messages of grossly offensive or of an indecent, obscene, or menacing character, or sent for the purpose of causing annoyance, inconvenience or needless anxiety to others, even if those messages are never received.
If so, this has clear importance beyond the Twitter “bomb hoax” of Paul Chambers. It raises a fundamental question as to the relationship between the criminal law and the users of the internet. And this question becomes urgent if, as in this case, a fairly broad attitude is taken by the CPS to what constitutes “menace” or one of the other elements of the section 127 offence.
But in the meantime, Paul Chambers has been convicted for an offence for which he was not arrested and for a “menace” he plainly did not intend to make, and nor was taken as such. All this because there is a “public interest” in prosecuting him, even if the relevant offence does not apply.
It seems to me that an injustice is occurring; and, with the CPS’s new attitude to section 127, such injustices are likely to occur again.
Allen Green writes the Jack of Kent blog