Paul Bernal reports on the latest SCL London Group Meeting, held at Preiskel & Co LLP on 13 February
David Allen Green, solicitor, journalist and blogger, gave the SCL the inside story on the 'Twitter Joke Trial' at a meeting on 13 February – and quite a tale it was. It was fascinating at a lot of levels, from the highly technical legalities to a tactical approach that harnessed the power of the media. In the end, the case may have made a significant step towards bringing the legal system in England and Wales into line with the 'new world' of social media.
David Allen Green (DAG) told his tale well, invoking such literary figures as JK Rowling and Terry Pratchett. The bones of the story should be familiar to most people. In January 2010, when bad weather seemed likely to frustrate Paul Chambers' chances of flying off to meet his new girlfriend in Belfast, he sent the following tweet:
"Crap! Robin Hood Airport is closed. You've got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!"
What followed, as DAG related, was more than two years of legal wrangling, four separate hearings and many thousands of pounds of costs while the English legal system tried to get to grips with what that tweet actually meant. Meanwhile a young man's life was devastated – suffering huge stress, losing his job and lots of money and being left in limbo.
As DAG explained, the tweet was about as far from being a terrorist threat as it could be – it identified exactly who sent it, as Paul Chambers' twitter name was his real name, and his avatar even had his picture on it. What's more, Chambers' one desire was not to blow up the airport – it was to keep the airport open so he could fly to Belfast. The only person qualified to assess threats who actually saw the tweet, Robin Hood Airport's Security Manager, was clear from the start that it wasn't threatening. So why did the whole issue 'blow up'?
The key seems to have been that inappropriate laws were used inappropriately. Both the law and the judiciary need to be 'updated'. The buck was passed from one person to another – and when the CPS heard about the story, they seemed to search around for something to charge Chambers with – and came up with s 127(1) of the Communications Act 2003, a law which (as DAG explained) was a remnant of an old law brought in to protect telephone operators from abuse. The CPS then shoehorned the facts into that law – in DAG's view misunderstanding the requirements of that law in the process – and set into action the whole sorry chain of events.
The details are complex – but it took four trials before Chambers was finally found innocent. Several interesting legal factors came into play. At first the defence tried the 'human rights' approach, appealing on the basis of his Article 10 right to freedom of expression. That failed – and instead Chambers' legal team, DAG and John Cooper QC, went for a straight criminal defence – suggesting that the tweet didn't have the necessary 'menace'. That was perhaps the most interesting part of the whole story – and why DAG brought in the likes of Stephen Fry and Al Murray, and John Cooper QC quoted Betjeman's 'come friendly bombs and fall on Slough' and Shakespeare's suggestion that we 'kill all the lawyers'. The tweet was a joke – and should be seen as such. Getting a belly laugh from the judges in the final trial was a clear sign that they had won the argument.
And they did – in a judgment that vindicated Chambers in every way. All three judges agreed – that much should be celebrated. That it took so long was perhaps inevitable – and DAG even suggested that part of the process was just to keep things going until the judiciary managed to come to grips with social media. The case took more than two years – and in those two years the use of Twitter in particular has grown enormously, and with that the understanding of the judiciary.
Ultimately, though, good seems to have come out of it. In December 2012 the CPS issued Interim Guidelines as to prosecutions for social media offences, and on the face of it they look sensible, setting the bar for prosecutions appropriately high, though the proof of the pudding will be in the eating. Those Interim Guidelines form part of a consultation that closes on 13 March 2013 – see http://www.cps.gov.uk/consultations/social_media_consultation_index.html for details.
Ultimately, though, DAG suggested that the problem lies as much in the laws themselves as in their application. Our laws, he believes, do not deal with speech acts in the modern environment at all well. We have understood Article 8 of the ECHR much better than we have understood Article 10.
The last question from the audience was particularly poignant for Valentine's Day: what happened to Paul Chambers and his girlfriend? In the end, this is a love story – they are now engaged, and will be getting married later this year!
Paul Bernal is a Lecturer in IT, IP and Media Law at UEA: @paulbernalUK