The Twitter Bomb Joke and the Big Issues

November 23, 2010

If I see any more comments on the conviction of Paul Chambers under s 127 of the Communications Act 2003 that suggest that social networking and/or the Internet is under attack by the criminal justice system of England and Wales, I shall scream. Or I might possibly send out an ill-considered tweet threatening a painful death for all the people making such comments. But the case should indeed have you up in arms, but not only for the reasons that the retweeters consider most important.

In the unlikely event that you have somehow missed all the fuss, a tweet sent by Chambers to his 600 followers in the early hours of a January morning said: “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!” At his trial in May, at Doncaster Magistrates’ Court, Chambers was convicted and fined £385 by a district judge and told to pay the £15 victim surcharge and £600 court costs. He has since seen his appeal in the Crown Court fail and the bill for costs quadruple as a consequence. Now he is a cause celebre (supported by proper celebres like Stephen Fry and Davina McCall – Gillian McKeith wanted to lend her support but an unexpected phobia got in the way) and is to be a test case (God save him); apparently it is all about human rights on the Internet.

Nobody with any common sense is going to lack sympathy for Paul Chambers – even if you think he was stupid and are appalled by his potty-mouth (the quote is the cleaned-up version), you are likely to think the price he has paid has been too high. I do not doubt for a minute that he should not have been prosecuted, although I suspect that, as a trainee accountant, he would not have accepted a fixed penalty notice for the ‘offence’ if one was indeed offered.

What has driven me to despair is the recurring theme that somehow this incident is {i}about {/i} the Internet. What it is mainly about is a flaw in judgment on the part of prosecutors and a warped reading of the Act – a warped reading which is the product of good intentions in trying to stamp down on racists.

Without going into the detail of some of the cases concerning s 127, I suspect that there is a {i}technical{/i} case against Chambers – that explains the fact that a judge upheld his original conviction. Although even that Crown Court appeal ruling rather ignores the ‘innocuous hyperbole’ defence that he put forward and suggestions in press reports that {i}even airport staff{/i} (who came across the message a week after he’d sent it) were not concerned by it but merely reported it because the jobsworth manual said they must. But the reason the comments about this being an attack on twitter or the Internet are ridiculous is simple: if he had made the same comment out loud, would the result have been different? I suppose he might have been summarily shot rather than summarily convicted, but in all other respects the result would have been the same or worse.

But the Chambers case does raise big issues, and more important issues than freedom to tweet inanely. First, ask yourself this: is it conceivable that a jury would have convicted him? I think it is just about {i}conceivable{/i}, but extremely unlikely. The offence under s 127 of the Communications Act 2003 is summary only – you cannot elect trial by jury under s 127. Bear in mind that we are about to see another major reclassification of offences and that even more offences that are currently either-way will be made summary only. Does the Paul Chambers case suggest that we can have faith in summary trial? It suggests to me that we cannot, but the problem with summary trial (which is an over-eagerness to convict) has been around for decades and applies to a vast range of cases, most of which have nothing whatever to do with cool things like tweets. So the first big issue is the need to preserve the right to jury trial – we might even consider expanding it and allowing properly funded representation too. The second big issue is about the creation of offences which, we are so often told, will be used but rarely, and only after the exercise by prosecuting authorities of their careful and quasi-judicial discretion. That was a constant theme from the last government when brushing aside objections to the creation of new offences. If that excuse arises again, remember Paul Chambers and laugh.