Wednesday, 12 May 2010

5 Reasons why the Paul Chambers decision was wrong

UPDATE: Please also read my followup post: 5 more reasons why the Paul Chambers decision was wrong.

Paul Chambers, the Twitter "bomb hoax" guy, was found guilty on Monday of sending a menacing message on Twitter and fined approximately £1000. This was his first criminal offence. I wrote about this in an earlier entry as I was preparing a letter of complaint to the South Yorkshire CPS. My complaint failed to deter the CPS from pursuing their charge under section 127(1) of the Communications Act 2003. It did however contribute to the defendant's decision to seek to have his initial guilty plea vacated. This was successful, to the surprise and renewed hope of many. Our hopes were dashed when district court judge Jonathan Bennett delivered his guilty verdict, which legal blogger Jack-of-Kent has described as a disgraceful and illiberal judgement. Here are five reasons, in no particular order, why I believe this decision is very wrong and very alarming.
  1. This was clearly an expression of frustration and not intended to be taken seriously.
    A guy writes "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!!" to express his frustration that his flight might be cancelled due to about a half inch of snow. Well, that's the United Kingdom for you. You'd think nobody had ever seen the stuff. I know how he feels. Where I come from we would routinely drive our cars the day after a 3 foot blizzard. Getting back to the point, I haven't come across a single person apart from the judge who believes that Paul had malice in mind when he made this remark, no matter how ill-inconceived it may have been. I'll get to the judge in a minute.
  2. The times we live in have no bearing on this or any other case.
    The existence of terrorism and its association with airports cannot alone serve as the foundation for perceiving a suggestive remark as a threat beyond a reasonable doubt. Anyone who thinks this is okay has willingly handed over his liberty for the sake of false security. Here is a typical response to Paul from a person called "HorseBooger" who clearly doesn't see what's at stake:

    I have no sympathy for you. You're an idiot and deserve what happen [sic] to you. You should have known better with today's climate.
    Now here you are whining about it. They should have horse whipped you and then put your dumb ass in jail.
    As for it ruining your career, I wouldn't worry about it. Sounds like you're to [sic] stupid to have had a career away [sic?].
    What I find even more surprising is there are other morons out there that support you.
    Well HorseBooger, if that is indeed your real name, I pity you. You have no idea what was taken away from you on Monday. People like this seem to universally hold the view that "this could never happen to me because I'm not a criminal". This is precisely what Paul would have said back in December if you'd asked him. Let me relate an extract from the book 'What Hitler Did To Us' written in 1938 by Eva Lips, a German woman whose husband was denounced to the gestapo by an informer. This excerpt was kindly provided by a commenter on the Guardian.

    I had become so intimidated that I no longer knew what was right and what was wrong... I was nervous with the postman, the milkman, the newsboy. He might be a spy who wrote down my words. In the trains there was a curious silence; no one ventured to talk to a stranger, still less an employee. laughing in the bus at the wrong moment might be dangerous. Photography enthusiasts did well to put their cameras aside; any landscape or group of people which one photographed might be used to prove one's intention of spying.. Everyone distrusted everyone else. No one ventured to express an opinion on anything.
  3. The judge got his facts wrong.
    In his summation, judge Bennett explains that the prosecution must show that there was mens rea, a legal term meaning guilty mind. The act in and of itself is not sufficient to constitute an offence. Incredibly, the judge says that he is satisfied that the defendant was aware that his comment was menacing. He explains that he has heard testimony that the defendant is a man of good character and that the defendant denies any awareness that his comment would be taken seriously. He then goes on to say the following (emphasis is mine):

    However, I do not have to accept what the defendant tells me about his state of mind at face value. I also note the defendant is an experienced, and clearly very heavy user, of "Twitter". Furthermore he has travelled by air, although he had not used Robin Hood airport previously. I found strange his evidence in relation to airport threats not seeming to relate to him and appearing to be in another world. Of particular significance is the fact that this "tweet" was posted to the public timeline, unlike most of his "tweets" in the time frame around this particular posting. This message would have been of particular significance to the lady known as "crazy colours" in Northern Ireland to whom the defendant was going to see on his air journey. He chose to post it in the public domain where in theory it was open for anyone to see, as indeed did Mr Duffield.

    I am therefore satisfied, so that I am sure, that the defendant sent the message via "Twitter" and it was of a menacing nature in the context of the times in which we live. Furthermore I am satisfied the defendant was, at the very least, aware that this was of a menacing nature and I find him guilty of the offence.
    Here the judge clearly fails to understand the mechanisms at play in the Twitter messaging scenario. One's Twitter timeline is either entirely public or entirely protected. Prior to Paul's arrest his tweets were public. Following the arrest they were locked. True, he could have sent a direct message, but you can only send that to a single person and he wanted his friends and other followers to see it too. Bennett makes a factual error here that I believe will result in a successful appeal.
  4. Twitter, by its unique form, encourages off-the-cuff remarks without much thought.
    I understand that people who have never used Twitter might not realize how very dynamic it is. It is not like Facebook. Nobody who uses Twitter thinks that this was a good judgement. Twitter has become a way of sharing your semi-private thoughts with a small audience and with the hidden potential of reaching an ever wider audience. But they are just thoughts. It becomes a habit. This is because the available text is so short. More than any other medium, Twitter has really changed the way that people communicate. And it feels like you're in the same room with your friends. Conversations involving various levels of celebrity seem as though they are happening on the other side of the room. It lulls you into sharing more of yourself than you might otherwise. I think this is wonderful. However, it is all too easy to fall into the trap that Paul Chambers did. Here are a couple of examples:

    • Me (August 2009): "If I hear one more politician claim that the US govt health plan will "unplug grandma" I'm gonna get on a plane and go unplug theirs myself" - possibly menacing.
    • Armando Ianucci (before flying to the Oscars): "At the airport.Got my Oscar tickets in my pocket, my girl by my side,and 3 packets of heroin hidden up my anus.What could possibly go wrong?" - probably would have been taken into a back room and strip searched had the Heathrow authorities been alerted.

    There are many others.
  5. The police don't get to have a new tool for detecting and preventing crime just because we have a new tool for expressing ourselves.
    I concede that these conversations and monologues are not truly private, but I still feel that they should be treated as such for the purposes of establishing possible criminal behaviour. It's like with a search warrant. The warrant needs to specify what can be searched and what the police are looking for. The implication is that there is already cause to believe a crime has been or is being committed. It's hard for some people to accept, but this is a bit like searching without the proper warrant. You might find something of interest by accident, but unless it's been obtained properly it should have no value as evidence. Granted it might necessitate an investigation, but the police really must use common sense. Bear in mind, we are not any less safe now that there is Twitter. There could be millions of telescopic microphones dangling from the sky and picking up unguarded conversation. Imagine if it were as easy to process voice as it is to process text. I'll bet law enforcement would love that. Would you think it was right to use such speech against a person? Just because we have a medium that allows unguarded speech to be shared with a known group of people and to be spied by an unknown group, should we be content to monitor that for possible illegal activity? And that's really what it is, isn't it? Spying. Eavesdropping. It hasn't made us any less safe by its mere existence, so why should it be scrutinized in this way.
Paul has decided that he will appeal this decision. I am glad. The verdict is bad for all of us who publish and broadcast ourselves online. Those who don't understand free speech may one day find themselves on the receiving end of this abuse of law enforcement power. Then perhaps it will begin to dawn on them. If the appeal is successful, and I'm confident it will be, then they may be allowed instead to carry on in blissful (and in some cases spiteful) ignorance.



  1. Hi Matt

    I posted at the Guardian site as 'justasillyjoke'. You will recall that @speedkermit brought up the case of DPP v Collins as the precedent for giving a guilty verdict in the Chambers case.

    I've looked at this Lord's Appeal ruling and frankly, it's rather a mess.

    The Lords Appeal spent some time considering the changes in the 2003 act compared to the 1988 act which it superseded. The newer act was deemed to extend the liability so that it would be an offence if the communication grossly offended those to whom the message referred, not just those to whom it was directed. That seems to have been applied in Paul’s case. Lord Bingham seemed concerned mainly with the public service being used to share hate speech between racists, although this legislation was designed to deal with nuisance calls. Indeed, the judges did not deal with the question of how this communication would come to the attention of the police, itself a matter relevant to free speech.

    Applying this to Paul's case, we would ask whether the airport staff would be grossly offended by the tweet, as the message relates most specifically to them. It really does depend on WHAT is told to the airport staff as to whether or not they are likely to be grossly offended.

    For example, if they were told there was a bomb threat, with no context, then we can assume it would be distressing for them, and legislation already covers making false bomb threats. But as this is clearly not a specific bomb threat, prosecutors have looked to stretch this communications Act to gag what was just a provocative joke. Maybe it is the Police looking to extend themselves into this new space, but really, it’s for legislators to legislate and to inform the public adequately about that legislation. What if Paul had been 12 years old?

    If told the full context of the tweet, I imagine there would be a few wry smiles among airport staff and maybe the odd person would think it a stupid comment. But stupid and grossly offensive are not the same thing. We can also all agree that there is a possibility to mishear this statement in the sense of it being a genuine bomb threat, though I doubt most reasonable people would say that they themselves took this message literally.

    By focusing on whether a message was likely to intentionally cause gross offence (here tamely interpreted as distress and anxiety) the door is open to prosecute all news outlets. Much of the news I read every day via public communication systems intentionally causes some degree of anxiety and distress. And even if news outlets got a loophole on the basis of reporting things that have already happened, they would no longer be able to discuss things that might happen. Not the point of the legislation.

    The context of the tweet is changed somewhat by knowing he wanted to attend a blind date a week and a bit later. It provides the triviality that reveals the joke. This extra information was probably available to his friends and may even have been available in previous tweets. Is there a duty of care on eavesdroppers to establish the full context? A simple question ‘what did you mean by that?’ would have sufficed for anyone who was unsure about it. What about the responses to the tweet, did they reveal the full context? The CPS and police at least should have established the full context upon receipt of a complaint, and having seen that it was a joke, should have dropped the matter. This was NOT a hoax call later justified as humour among friends, for instance.
    As for Lord Bingham's idea that the law was intended to protect the integrity of the communications service, well, we are into quite a legal and moral wilderness if we accept that statement. How is the 'integrity of the publicly funded service' to be defined exactly? Idiot.
    Good luck to Paul in the appeal.
    Kind regards

  2. Ah well, now that it's after 5pm I can actually comment here. ;-) Thank you Mark. As I said on the Guardian CiF, this was never about whether the message was offensive to anyone. It was always about whether it was menacing, which is a separate issue. I actually have begun to believe that the bigger issue is the manner in which this was brought to the attention of the police. I'll repeat my CiF comment:

    The more I think about it I agree that the matter of how the tweet came to the attention of the police is of great importance. We know it was discovered accidentally through an unrelated twitter search. Your points about whether or not the tweet was offensive are not quite relevant. The judge ruled on the 'menacing' part of the statute. It can be of a grossly offensive, obscene menacing or indecent nature without having to be all. The judge at least accepted that mens rea was required, though I completely disagree that it was present.

    We are into uncharted territory here with searches turning up potentially incriminating evidence when there was no reasonable suspicion or probable cause in the first place. The law should respect the completely disconnected nature of these text messages with regard to any police investigation at hand. It is very much like a warrantless search. In my non-legal opinion it should not matter that these are in the public domain. They are still the property of the message sender and therefore command respect.


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