Twitter jokes: free speech on trial
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.
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”.
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