An open letter to judge Jacqueline Davies

Slightly updated version

Judgement now available here: http://jackofkent.blogspot.com/2010/11/twitter-joke-trial-crown-court-judgment.html


12th November 2010

Dear Judge Davies:

I hope this letter finds you. I attended the hearing at Doncaster Crown Court yesterday where you denied the appeal of Paul Chambers against his criminal conviction under section 127 1(a) of the Communications Act 2003. I feel duty bound to inform you that I find not only your judgement but you yourself to be an affront to justice and a disgrace to the bench that you adorn. I do not have the judgement in front of me at this time, but the salient points are still clear in my mind. You have echoed the earlier judgement of the district court. That judgement can perhaps be described as hapless. The defence during that trial was not as robust as in this one and Judge Bennett clearly failed to understand some key points. You do not have his excuse. Your judgement is nothing short of sinister. There are two main points that I must take particular issue with in your illiberal and disgraceful judgement.

First, you make a point of saying that you find the appellant to be “an unimpressive witness.” I am quite certain that this is precisely what you said. I fail to see how a defendant in a criminal trial is required to make any specifically positive impression on a judge or jury when the burden of proof clearly falls to the prosecution. A defendant telling the truth under stress may fail to appear impressive. He may be looking for hidden traps in the questions posed during cross examination and doing his best to be cautious. This is only natural and quite expected. Truth may sometimes be stranger than fiction; however, most of the time it is singularly unimpressive. You have chosen to disregard the sworn testimony of a man who, as you put it, was previously of good character when he appealed to you quite honestly that he had no idea he could or would have been causing menace. You are prepared to do this because you seem unprepared to accept that a reasonable person might not see the menace. I will come to that.

It has been pointed out to you that Mr Chambers’ story has not wavered at any time since he gave his first interview to the police. You appear to accept this but dismiss the interview as self serving. You use the defendant’s above average intelligence and education, indeed his soundness of mind, as a weapon with which to bludgeon him. Your reasoning goes as follows: Mr Chambers has used airports and is aware of the heightened levels of security owing to the state of terrorist threat that we live under; Mr Chambers is an intelligent and well educated man of sound mind (reasonable person) who is a very savvy user of social networking sites; The “tweet” is very clearly menacing; Therefore, Mr Chambers must at the very least have been aware that it could cause menace. Is this how we go about determining mens rea? The actus reus is so clear as to be obvious to anyone? What is the point of requiring a guilty state of mind? It has been pointed out to you that nobody involved in the running of Robin Hood Airport took the “tweet” as a serious threat and that the airport was not in any way disrupted. It has been pointed out to you that the interrogating officer made a note giving his opinion that there was no evidence that the “tweet” was anything more than a jest made for only close friends to see.

It has been pointed out to you that none of Mr Chambers’ 690 timeline followers nor any other user of Twitter (apart from airport manager Duffield, who was duty bound to report it) was moved to take any action or make any communication with Mr Chambers after the “tweet”. You have chosen to disregard all of this evidence and instead to conjure an imaginary elderly couple who have booked a holiday and are due to fly out of the airport. This quite sensitive elderly couple might decide to search for Robin Hood Airport on Twitter and then be confronted by Mr Chambers’ tweet. You manage to convince yourself that this imaginary elderly couple would probably feel menaced. Your justification for taking this approach is that the precedent set by DPP v Collins requires that a message can be menacing without having ever been received. It is menacing as soon as it was sent. We cannot unfortunately ask this elderly couple whether they might have been menaced by such a message as this couple does not exist. But in order to take into account Mr Chambers’ status as a reasonable person when considering possible guilty intent, we must be prepared to accept that any and all reasonable persons would feel menaced. This is clearly not true, and I come to that now.

Second, as has already been alluded to, you assert that the bench is satisfied that the “tweet” made by Mr Chambers is obviously and quite clearly menacing and that any ordinary person would agree. [In fact your exact words were “menacing in its content and obviously so. It could not be more clear. Any ordinary person reading this would see it in that way and be alarmed.” as reported here] How you managed to reach this conclusion is frankly beyond my ability to comprehend. Judge (as an ordinary and quite reasonable person I assure you), I have to tell you that you couldn’t be more wrong. Indeed, this statement is an insult to the hundreds and perhaps thousands of people who have given their time to write about this case and to donate money to the legal fund because they felt morally obligated to. We are talking about people like Graham Linehan, Stephen Fry, David Mitchell, Nick Cohen, Jonathan Ross and many other well known figures. We are talking about ordinary people like myself. Indeed, I take this statement as a personal affront and not lightly. I feel very strongly that it could easily have been me in the dock. Many others have expressed similar sentiments.  I wrote a strongly worded letter of complaint to the Crown Prosecution Service in March and later formed a support group on the networking site Facebook. We currently have several hundred members. 

Although these facts were not presented to you as evidence, you must have been aware of this situation because: We can presume that you are a person of sound mind with some intelligence and education as you are a Crown Court Judge; you almost certainly read the newspapers and/or watch television news programs as it is important for a judge to be well informed; you have had months to look at this case and the way that it has been received by the public; therefore, you must at the very least have been aware that this case has been very controversial. I think you may have even said as much in your judgement. It is likely that much of the support for Mr Chambers arises from the view that his action was not menacing. His lack of awareness of a truly menacing act would not have provoked such a strong reaction. If we accept this premise then there must also be at least some doubt that Mr Chambers is lying when he asserts that he was unaware of any menace. You must be absolutely convinced that the defendant is lying in order to uphold the conviction. This has not been proven to anything near an acceptable standard for criminal liability. Your failure to consider these circumstances causes me to question your impartiality and indeed your fitness for the bench.

From the moment I heard your judgement to deny the half-time submission I had a sneaky suspicion that this would not go the right way. You seemed to have already made your mind up. For most of the day I was shaking and felt physically sick. When you read out your judgement to deny the appeal I could not even look at you, such was my disgust. As I gazed down at the poppy pinned to my shirt I couldn’t help thinking of all the brave men and women who have given their lives fighting in various wars to preserve freedom and democracy. You let them all down on yesterday [Remembrance Day] of all days. You have practically criticized the defendant for having the temerity to bring his case before the appeal court. You have shown no sympathy for the financial ruin that he faces now. You frankly have the imperious attitude of a provincial judge who feels territorial about a case that is being defended by a team based in London. Judge, you have failed to deliver justice in this case. I feel it is not too strong to say that you have brought shame and ridicule on your profession, and you deserve for this single case to define your entire career. As the Chinese proverb translates, may you live in interesting times.

Sincerely,
Matthew Flaherty

Response to FoIA request for costs of Paul Chambers prosecution

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

At the end of yesterday I received from the CPS Information Management Unit a response to a Freedom of Information Act request that I placed a couple weeks ago. This is well inside the deadline of 20 working days. Here is the text of the response:

Tuesday, 19 October 2010

Our ref: 2484

Dear Mr Flaherty

FREEDOM OF INFORMATION ACT 2000 REQUEST

I refer to your Freedom of Information request which was received on 27 September 2010 regarding the cost of the prosecution against Paul Chambers

Section 1 of the Freedom of Information Act creates a statutory right of access to recorded information held by public authorities i.e. the Crown Prosecution Service (CPS). This right is to be informed whether the information requested is held by the public authority or not, and if the information exists, for it to be communicated. A public authority must reply to such a request promptly and in any event, not later than twenty working days after receipt.

I can confirm the case is still an on-going matter and is due to be listed for the part-heard appeal on 11 November 2010; as yet we are unable to confirm the total costs recorded in this case. May I advise that you contact our office once the case has concluded and your request will be considered afresh.

If you are unhappy with the decisions made in relation to your request from the Crown Prosecution Service you may ask for an internal review. You should contact the Information Management Unit (Freedom of Information Appeals), Rose Court, 2 Southwark Bridge, London, SE1 9HS.

If you are not content with the outcome of the internal review, you have the right to complain directly to the Information Commissioner, who can be contacted at:

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Yours sincerely

S Kadir

Information Management Unit

Tel:  020 3357 0899

Fax: 020 3357 0229

E-mail:  FOIUnit@cps.gsi.gov.uk

I will be requesting an internal review today by return. I asked only for the total costs to date in my request and I fully expect that this information should be available. I also believe that the costs are not sensitive information to an ongoing case. The CPS will have 20 working days to conduct a review and respond.

A Brave Heart in the Dragon's Den

This is an account of another silly, throw-away remark made on Twitter that had unintended negative consequences. This seems to be happening more and more as the medium matures. Perhaps the most famous example is the case of Paul Chambers, who was arrested in January and convicted in May of sending a menacing electronic communication, which was nothing more than a joke suggesting an airport bombing. This is the case that moulded me into a free speech fundamentalist and all around civil libertarian.

The latest example to illustrate how Twitter (it seems to be this medium more than any other) is so misunderstood by both its writers and its readers involves Dragon's Den star and self-made multi-millionaire entrepreneur Duncan Bannatyne and a young woman who made a silly joke.

Sharon Gooner (I think that's her real name this is not her real surname) never expected that she would become the focus of Duncan Bannatyne's ire when she tweeted the following: 

Duncan Bannatyne's wife is having an affair. He
bellowed at reporters: "You may take my wife but YOU'LL NEVER TAKE MY MEADEN"

Those who know of the Dragon's Den will be aware that Deborah Meaden is Bannatyne's co-star and fellow tycoon. Those over the age of 20 should also immediately see that this is a pun referencing a famous line from the film Braveheart. A funny joke? That's a matter of opinion. A bad pun? Also a matter of opinion. A put on? Yes, that's perfectly clear. The literal implication is that Bannatyne is simultaneously having an affair with his co-star, but the pun aspect makes it is clear this is delivered as the punchline of a joke. That she did not anticipate how this would be received (even that this would be received) is I think not in dispute. So what happened?

Somehow Duncan Bannatyne got wind of this tweet and he challenged its author, saying "Just so you know. If anyone believes your silly tweet & if it hurts my family I will sue you for as much as I can". This was the first communication from Bannatyne to Gooner. It's not clear whether he was searching for his own name or whether he happened to see a retweet; however, we know he did not receive the tweet directly as he was not a follower of Sharon Gooner and the tweet did not mention his twitter handle. It seems like a very strong initial response, a not very subtle threat of litigation. Further correspondence reveals that Bannatyne's primary concern was that people might believe the first sentence, the setup to the pun. This could have the effect of damaging his wife's reputation and subjecting his young son to needless abuse and torment. Well, I have to say that seems reasonable. Threatening to sue was a massive overreaction though. That was not reasonable, but I suppose he was upset and on the defensive for his family.

I have gone through phases when considering this incident. At first I jumped on the Duncan-bashing bandwagon. He's a bully. He doesn't understand Twitter. People are abusing Gooner, calling her "scum" and "attention seeking". This is like Cat-Bin-Lady outrage. I thought the joke sounded like the sort of thing Jay Leno might crack in a Tonight Show monologue. Perfectly acceptable. Twitter lets anybody be Jay Leno for 15 minutes. Then I began to see that Bannatyne had a point (though his abusive supporters did not). The context of the joke did not seem to make clear that the setup was a false statement. Why would Jay Leno crack a joke like that unless the first statement was true? In that scenario there would be some sort of current event that is then tied to an absurdity, which is the punchline. I consulted with a friend who is a linguistics expert and previously gave an insightful analysis of the #TwitterJokeTrial tweet. He agreed with me. The first statement sounds as though it is a truthful observation. Some other people I spoke to also admitted that they had assumed the first statement was grounded in truth. I didn't think Sharon's tweet amounted to libel, but I thought it was poorly executed and easily misinterpreted. This would not have been her fault as she did not expect any part of her tweet to be taken literally. However, I could see the potential for damage.

Then later in the evening Sharon began to repost some of her earlier punning efforts. I then became aware that there was an extended context that I hadn't previously seen. Here are some examples:

Sade has given up music to open an organic fruit drink bar in town. She is a Smoothy Operator.

Julie & Cal next door have split up. But he did break her white appliances a lot. At least her washing machine will live longer with Cal gone

A man got stuck up a ladder today by a crate of deodrant that refused to budge. Sure. It won't let you down.

A ferry company were so impressed with Lionel Ritchie's new advert they offered him a job. He is now dancing on the Sealink.

My mate tried to steal some of my treasured music magazines. Keep your friends close, but keep your NME's closer.

In each of these examples we clearly see that the setup to the pun is as much a put on as the pun itself. In the wider context of this string of punning, it becomes clearer that the reader is meant to dismiss the remark about Duncan Bannatyne's wife. This fascinates me, because I'd assumed I had the full context previously where I now know that I did not. These things are not always as simple as they seem. This makes me wonder whether Paul Chambers' tweet really could have appeared menacing to some reasonable person, though he clearly did not intend for it to be. How much responsibility should we assign to people who make remarks that are taken out of context? Do we all in fact need to be much more careful about what we say in a public medium with enormous potential for the masking of context? I just don't know. Let me think about it some more...

Why Jack Straw is arguably an illiberal ass

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

Jack Straw: A pompous and arguably illiberal ass

Jack Straw. Jack, Jack, Jack, Jack Straw. What can I say about Jack Straw? My distaste for the man has deepened lately. This article really cheesed me off when I read it: (politics.co.uk | Jack Straw waves goodbye with civil liberty attack).

The article refers to Straw's final keynote speech to the Labour conference as he prepares to make his exit from front line politics. Jack Straw would like you to believe that the party that dubbed itself New Labour and governed for 13 years until May 2010 has a "great legacy on equal rights and public safety." I could talk about the Ian Tomlinson police brutality / wrongful death case and equal treatment under the law, but I won't go there. I could discuss the hardships facing professional and amateur photographers simply going about their business in public, but that seems rather trite in comparison. I could even delve into the legislation that ushered in the suspension of habeus corpus for terror suspects. Key word is "suspects." That's the 28 day pre-charge detention which ministers like Straw repeatedly pushed to extend to 48 and even 90 days. I won't go there. There are so many things I could talk about, but I'll focus on a couple of key points that are of particular relevance to the man himself. First of all, what did he actually say in his farewell speech that's got me so worked up. From the article:

"Our great legacy on equal rights and public safety is at risk," he said.

"The Liberal Democrats have conspired to put the Human Rights Act under review. The Conservatives, meanwhile, are going to cut the use of DNA technology and CCTV, and restrict the ability of the police and local communities to fight the scourge of anti-social behaviour. And who will benefit from this madness?

"There'll be greater freedom for the criminal, less liberty for the law abiding. It's crazy," he added.

It seems to me that Jack Straw really hasn't got a clue when it comes to civil liberties. In England and Wales, legislation allows DNA samples to be taken from anyone arrested on suspicion of involvement in a recordable offence and stored indefinitely in what is known as the National DNA Database, whether or not they are subsequently convicted or even charged. This amounts to invasion of privacy and excessive data collection. CCTV cameras are arguably useful in preventing and fighting crime, but may amount to excessive surveillance. Ironically, CCTV footage was used to convict a police officer in Manchester of assault causing actual bodily harm in a widely publicised case last month. But I digress.

Jack Straw believes that the coalition government will give greater freedom for the criminal. The trouble is that many of these questionable laws introduced by Labour serve to treat the law abiding citizen as though he were a criminal. A good example of this is Paul Chambers. You all know Paul Chambers by now. He is currently in the middle of an appeal to overturn his conviction relating to a Twitter update where he joked about blowing up an airport. At the moment, Paul is a convicted criminal. Frankly, if this type of "criminal" has greater freedom under the coalition then that's fine by me.

Here is Jack Straw in Sepember 2001 talking about the new Regulation of Investigatory Powers Act (RIPA) when he was Home Secretary. Please read the full article from page 1. It is quite interesting. Part III of RIPA makes it a crime to fail to turn over encryption keys and passphrases or otherwise allow law enforcement to decrypt target data within a specified time limit. The offence carries a sentence of up to two years imprisonment, and up to five years imprisonment in an investigation concerning national security. This legislation has been widely panned by critics as an assault on liberty, as it overrides the basic right to silence that all suspected criminals are afforded. According to Jack and taken from the aforementioned article:

"It was government trying to put in place increased powers so that we could preserve and sustain our democracy against this new kind of threat," he said in a Radio 4 interview.

"We needed to take powers so that we could de-encrypt commercially encrypted e-mails and other communications. Why? Because we knew that terrorists were going to use this."

Well, that's really no excuse for overriding the right to silence. On page 2 of that article, we read about how CTC officers suggest to a supect during an interrogation that failure to comply with RIPA III would "lead to suspicion he was a terrorist or paedophile."

"There could be child pornography, there could be bomb-making recipes," said one detective.

"Unless you tell us we're never gonna know... What is anybody gonna think?"

Whatever anybody's gonna think is irrelevant. This is not Stalin's Soviet Union. There is a presumption of innocence in our justice system. There are many reasons a person may wish to keep data on a hard drive encrypted. Some teenagers broke into my house a few months ago and stole my laptop, among other things. Had I encrypted my files I wouldn't have to worry about personal information falling into the wrong hands. I wouldn't have to worry so much about indentity theft, for example. This is only one of a number of non-sinister reasons to encrypt data. Others include the protection of trade secrets or intellectual property and the hiding of potentially embarrassing but otherwise legal material.

Basically the physical parallel of RIPA III is that if I am suspected of storing information relevant to my criminal investigation in an impenatrable safe, I must hand over the combination or face a jail sentence. What if I've lost the combination? The obvious comeback against RIPA III is to claim to have either lost the encryption keys or forgotten the passphrases. I have personally lost two PGP private keys and thus rendered the encrypted data useless. I doubt I am alone. Would the police believe a suspect who made such a claim? Probably not. Where does that leave you as a suspect in such a case? Answer me that, Mr Straw. Then feel free to bugger off from public life.

Unfortunately I think the true legacy of Jack Straw and his Blairite buddies is best summarised by Tony Blair himself in his memoirs. Of all the business of Blair's government, the one thing that he regrets the most is... what do you think? The illegal invasion of Iraq? Nope. Draconian terror legislation? Try again. The Freedom of Information Act? Bingo.

FOI - How much taxpayer money has the CPS spent in prosecuting Paul Chambers?

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

Like many, I'm personally disgusted with the sheer waste of time, money and resources being spent by a public body (the Crown Prosecution Service) on the prosecution of a blameless individual. How much money is it? I'd like to know. Therefore, I have made a request under the Freedom of Information Act to the South Yorkshire office of the CPS for disclosure of all the information related to the costs of the prosecution. I've directed my request for the attention of Roger Tricklebank, a Senior Crown Prosecutor with whom I've had communications in the past, and copied Naheed Hussain, the Chief Crown Prosecutor for that region. I believe that I worded my request clearly and properly, and therefore we should have an answer within 20 working days unless the CPS require more time. Though it's hard to imagine how they would require more time.

Guest Post - Mark Phillips explains how Paul's #TwitterJokeTrial tweet was very clearly a joke.

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

I had an email today from a very bright guy I've previously had some dealings with about the Paul Chambers case. Mark Phillips is a linguistics expert who became intrigued by the implications of this case and made numerous comments under articles in The Guardian's online Comment-Is-Free section back in May using the screen name 'justasillyjoke'. It is Mark who deserves the credit for formulating the line of thinking that suggests Paul was frustrated by a situation beyond his control and made an exaggerated remark assuming powers that he does not have in order to compensate for his feelings of lack of control. A very astute observation, I'm sure you'll agree. Mark was trying to post a comment to my previous entry but ran into some problems. With his permission, I am publishing what Mark had wanted to say:

This tweet was a joke. Not only was it a joke, it was very clearly a joke. Is a joke ‘menacing?’ Maybe, taken out of context. The point is, the CPS is trying to convey Paul as being knowingly ‘threatening, menacing’ etc. But, Paul is a joker, and he’s not pretending or even trying to be anything else.

Here is a linguistic breakdown of the joke. It is in ‘cartoon’ style. It builds on an exaggerated bluff, with the basic force of the joke being a stooge, the device being a bluff, and the special force of the joke being an ‘irony’. I’ll explain everything below. Enough to say, the bigger the bluff, the bigger the irony, and the bigger the joke! That is the linguistic recipe.

There are four very visible cartoon elements in the joke:

First, 'Crap!' This is derived historically from the interjection 'Holy Crap!', meaning unbelievable. As an interjection, it has been used extensively as an ‘entry’ into jokes. Think of ‘Wow!’, or ‘D’ya know what…?’, ‘You’ll never believe this…’, or more recently ‘I don’t believe it…’ (One Foot in the Grave). But it is perhaps best remembered in its cartoon form in Robin’s ‘Holy smoke!’ catchphrase from Batman and Robin. This 'unbelievable' meaning sets up the whole joke. After all, it’s not a joke if you believe it! The interjection is therefore the first ‘marker’ that it is a joke.

Second, the jokes main ‘device’ is the weapon bluff, the ‘banana passed off as a gun’. In Paul’s case, it was some imaginary TNT, one might assume. This is hugely important, because it sets up the ‘stooge’ of the joke. The stooge has been somehow duped into believing the banana can pass for a real weapon (maybe they believe they can hypnotise people or some such dupe). Their ‘stupidity’ is therefore the essence of the joke; they cannot see that they appear ridiculous waving around a banana.

Third, the bank robber takes his bluff weapon (the banana) and threatens to 'blow everyone's brains out' unless he 'gets the dough'. The exaggerated toughness (‘get your shit together’) gives the joke extra force, because it sets the stooge up further as a ‘fake’, as a weak character.

Fourth, 'Sky high' is what we might call ‘the hyperbolic flourish’; it serves two functions, it ends the joke with the required flourish, i.e., a punch line, and it reinforces the ‘cartoonish’ nature of the joke, just in case you missed it (pay attention CPS!).

The irony behind the joke is simply that although Paul sets himself up as the stooge, he knows that everyone knows that he knows the ‘banana is not a gun’. He happily sacrifices any appearance of intelligence (tweeting a bomb threat!), in order to set himself up as the stooge for his own joke.

Of course, language doesn’t happen in a vacuum. All communication is ‘primed’, in the way that mention of the word ‘dog’ will invoke ‘cat’. It’s therefore correct to mention that ‘the times in which we live’ create some of the context here: travelling by plan[sic] brings up thoughts of terrorism, as does mention of Northern Ireland. No doubt, if Paul had been writing to a Thai girlfriend, he might have plumbed for a good joke about riding a Tsunami wave, if he was brave. You see, good comedy does require bravery, because it skirts the borders of acceptability and social embarrassment. More than that, it reveals our tensions about things, and by so doing, helps to alleviate them somewhat. Hence, all the jokes about marriage, about our boss, about travelling, about sex, and about terrorists etc.

In fact, if we didn’t live in a world where we are more afraid of terrorists than ever, there probably wouldn’t have been much material there for Paul to joke about.

How the CPS managed to score an 'own goal' in the Paul Chambers appeal

This post is an archive. The live version can be found on a new blog called Arsehole Justice (no offence).

UPDATE: Please read this followup guest post where the semantics of Paul's tweet are deconstructed by a lingustics expert. Also it is incumbent upon me to reveal that two inaccuracies have been pointed out. @crazycolours has informed me that the related tweets mentioned below were not direct messages but replies in the public timeline. This was something that the prosecution was confused about. No surprise there. This information does not alter my argument. I've also been informed that the prison inmate example offered by Caroline Wiggin was in response to a question from the judge and was not pre-prepared. Original entry below:

Right. If you look at the archives of this blog you will see that I don't write very often. There are large gaps between periods of modest activity. In all honesty, I find it a bit of a chore. Writing is not something that I've ever been accustomed to and life puts up its typical array of barriers. The result is that I tend only to write when something really pushes my buttons. The case of Robin Hood Airport v Paul J Chambers of Balby, Doncaster has never failed to push my buttons.

I won't rehash my history of involvement with this case, as earlier entries set that out fairly comprehensively. You might wish to read my first three entries from the month of May for a start. I'm writing this new post because Paul's appeal was heard and then adjourned yesterday in Doncaster Crown Court and because the prosecution has, in my opinion, not only failed to strenghten its case since May but has offered evidence that actually weakens it to a never before seen level of farce. This is impressive. I would not have believed it possible. The trophy for "Most Ridiculously Argued Prosecution in a Crown Court" goes to Ms Caroline Wiggin of the South Yorkshire Crown Prosecution Service for this astonishing argument (from an article published in The Guardian today):

Caroline Wiggin, for the prosecution, said Chambers had earlier sent direct messages to the woman in Northern Ireland as it appeared possible that the airport might close. In one he wrote: “I was thinking if it does I have decided to resort to terrorism.” She argued that the context provided by such messages strengthened the case that Chambers intended to cause menace. “If a man in prison were to send a message to his wife that he was going to come and beat her up, the court might consider that were menacing, albeit the man himself may have difficulty in putting it into effect,” she said.

The context strengthens the case. What an interesting supposition! It's honestly hard for me to read that and keep a straight face. Is she really that deluded? What context is she imagining here? It might be the context that the CPS conjured out of thin air and District Judge Jonathan Bennett failed to see through when he offered his ridiculous judgement back in May. The context of "the times in which we live" and its association with the perpetual threat of airport terrorism. It is certainly not the context in which Paul's tweet or any of the related direct (private) messages were delivered. Before I talk about the weaknesses of the above argument, let's look at the REAL context, shall we? It deserves its own heading.

The Real Context

A young man in England has booked a flight in January to Northern Ireland to spend time with a young woman that he has previously met once or twice (not on Twitter by the way. They were personally introduced in London by Paul's best mate). The man likes this woman very much and thinks it might actually be love. The feelings are apparently mutual. This is a very good thing. Unfortunately there has been some snow fall that has resulted in the temporary closure of the local airport from which the flight is due to depart. When I think about what scant amount of snow fall can bring an entire British city to its knees, I feel the urge to punch somebody. It therefore does not surprise me that the man could be moved in a fit of pique to write the now legendary Twitter update "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!!"

The context is that here is a man who feels frustrated with the fragility of his plans and has been rendered powerless. He therefore creates a fantasy in which he has powers not actually available to him in order to compensate for this lack of control. The powers are not available to the man because the man is not in any way capable of blowing up an airport. He has neither the means nor the meanness of character required. How does one actually blow an airport "sky high?" To begin with, how high is the sky? 37,000 feet perhaps? What sort of explosives would be required to achieve this incredible feat? Already, the notion of any intention to cause menace is taking on the stale aroma of farce. The continuation of the context is that the frustrated man, who has a particular sense of humour, decides to vent his frustration with the tweet that we are now all familiar with. The tweet is a form of publishing not unlike this web log, or blog. The act of using a service such as Twitter is known as 'microblogging.'

The audience is often quite limited, unless the author is some famous and prolific Twitterer such as Stephen Fry. At the time, Paul (I've grown tired of referring to him as "the man") had a bit less than 700 followers of his timeline. Most if not all of these were people who understood his brand of humour and would have gotten the true meaning of the tweet. It was not a literal expression of any intention whatsoever. I knew that the moment I first read it. Anyone who cannot see this is not viewing the message in its true context. One person in particular who did not grasp the context is Sean Duffield, the Robin Hood Airport duty manager who, for reasons best known to himself, was at home while not on duty and using Twitter's search facility to look for occurrences of the phrase "Robin Hood Airport." It was purely by coincidence that days after it was sent he came across Paul's tweet. One thing led to another and now here we are.

The Bullshit CPS Imaginary Context

The CPS like to talk about the "times in which we live," and judge Jonathan Bennett has lapped this up. But the times in which we live can have no bearing on this or any other case in terms of whether the CPS decide that public interest is served by a prosecution. Are not all recent cases considered by the CPS in the context of the times in which we live? Assuming this context when making decisions is very dangerous. Anything becomes possible. The one hypothetical act of terrorism which might not have been prevented should this tweet be ignored is enough to demand a criminal prosecution. This is, quite frankly, bullshit and so is the unfortunate argument offered by Crown Prosecutor Wiggin. If anything, the established fact that Paul and his girlfriend were having a private conversation prior to his tweet where hypothetical acts of terrorism were discussed strengthens the defence. This shows that the tweet continues a previous train of thought. Indeed, if you read this Jack-of-Kent guest blog post by the lovely @crazycolours you can see mentions of this. Please do read this poignant article. Poor Sarah has related the human aspect of this story better than anyone else can. In it we see that when Paul was failing to return her messages while he was being questioned at a police station, she left him an answerphone message jokingly threatening to "hijack a plane." They had after all been joking about terrorism earlier in the week. She is after all a Nothern Irish woman who grew up in a place where domestic terrorism has long been a sad fact of life. He was after all flying to Northern Ireland to see her. It really is that simple. Thus completes the picture of the real context.

The comparison of Paul's tweet to that of a prison inmate sending a communication threatening to beat his wife would be hilarious if it weren't so ridiculous. On the surface, such a communication to the prisoner's wife would indeed be menacing not only to the wife but also to anyone else, despite that the inmate did not have the power to carry it out. However, it might not be a literal threat. It might on the other hand be some sort of inside joke. The context needs to be examined. Paul's communication to Sarah was not menacing because she knew he was not serious. It's nobody else's business to make that determination because the message was private. The most basic understanding of messaging context still eludes the hapless CPS.

What Now?

Now the defence team have submitted an application for the case to be struck out on the basis that the prosecution has failed to make a case. This submission is being considered and the trial is expected to reconvene some time in November. Other bits of evidence have also come to light which tend to work in favour of the defence. I see no need to involve those in this discussion. In my view the one mistake I've outlined here ought to be enough to dismantle the prosecution. There has been no other new evidence to add strength to the Crown's case. If the CPS truly believe that the new evidence they've presented is helpful to them, then they are simply deluded. I'll go one further and call them incompetent.