QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OWEN
MR JUSTICE GRIFFITH WILLIAMS
| Paul Chambers
|- and -
|Director of Public Prosecutions
Robert Smith QC (instructed by Director of Public Prosecutions) for the Respondent
Hearing date: 27th June 2012
Crown Copyright ©
The Lord Chief Justice of England and Wales, Lord Judge:
This is the judgment of the Court.
"(1) A person is guilty of an offence if he
(a) 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; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he -
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both. "
"(a) a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description: and
(b) such of the following as are used, by the persons providing the system and in association with it, for the conveyance of the signals
(i) apparatus comprised in the system;
(ii) apparatus used for the switching or routing of the signal; and
(iii) software and stored data.
(2) In this Act "electronic communications service" means a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals, except in so far as it is a content service
(3) In this Act
a) References to the provision of an electronic communications network include references to its establishment, maintenance or operation
(7) In sub-section (2) "a content service" means so much of any service as consists in one or both of the following
(a) The provision of material with a view to its being comprised in signals conveyed by means of an electronic communications network;
(b) The exercise of editorial control over the contents of signals conveyed by means of such a network.
(1) In this Chapter
"Public electronic communications network" means an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public;
"Public electronic communications service" means any electronic communications service that is provided so as to be available for use by members of the public;".
"@ Crazycolours: I was thinking that if it does then I had decided to resort to terrorism":
"@ Crazycolours: That's the plan! I am sure the pilots will be expecting me to demand a more exotic location than NI".
In context, this seems to have been a reference to the possibility of the airport closing, but the picture was incomplete because no reply from Crazycolours was produced. Some two hours later, when he heard that the airport had closed, he posted the following message:
"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!!"
The message was posted onto the public time line, which meant that it was available to be read by some 600, or so, of the followers of his "Twitter" postings.
"Male detained re making threats to Doncaster Robin Hood Airport. The male in question has been bailed and his phone/computer has been seized there is no evidence at this stage to suggest that there is anything other than a foolish comment posted on "Twitter" as a joke for only his close friends to see."
"THE QUESTIONS FOR THE HIGH COURT
(1) In order to prove that a message is "of a menacing character" within the meaning of Section 127(1)(a) (read according to conventional canons of construction or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998) is the prosecution required to prove, as part of the actus reus of the offence, that the person sending the message intended, "to create a fear in or through the recipient" (per Sedley LJ in Collins supra) or, were we correct to conclude that the question whether a message if "of a menacing character" is an objective question of fact for the Court to determine?
1(a) In order to prove that a message is of a "menacing character" within the meaning of Section 127(1)(a) (read according to conventional canons of construction or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998), is the Prosecution required to prove that the person sending the message intended to create a fear in or through the recipient (Sedley L.J., in Collins supra, having defined a menacing message as "a message that conveys a threat which seeks to create a fear in or through the recipient that something unpleasant is likely to happen") or were we correct to conclude that the question of whether a message is "of a menacing character" is an objective question of fact for the Court to determine applying the standards of an open and just society and taking account of the words, context and all relevant circumstances?
1(b) Is the actus reus of the offence (Lord Bingham in Collins supra), 'the sending of a message of the proscribed character by the defined means', as we found, or does the actus reus include a requirement that the person sending the message intended the message to 'create a fear in or through the recipient'?
(2) What is the mens rea for an offence of sending a message of menacing character contrary to Section 127(1)(a)? In particular:
(a) Is Section 127(1)(a) (read according to convention canons of construction or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998) a crime of specific intent?
(b) Is the Prosecution required to prove as part of the mens rea of the offence that the person sending the message intended to put another person in fear?
(c) If the answer to (b) is no, is it sufficient for the Prosecution to prove that the person sending the message realised that his message may or might be taken as menacing, or must the prosecution prove that he realised that it would be taken as menacing by a person of reasonable firmness aware of all the relevant circumstances?
(3) Did the Court act lawfully (within the meaning of Section 6 of the Human Rights Act 1998) in convicting and sentencing the Appellant as it did? In particular:
(a) Did the Appellant's act in posting the message engage his right to freedom of expression under Article 10(1) ECHR?
(b) If so, did his conviction and sentence amount to an 'interference' with the exercise of that right?
(c) If so, was that interference necessary in a democratic society for one of the reasons listed in Article 10(2)?
(4) In all the circumstances, was the Court correct to conclude that the message sent by the Appellant crossed the threshold of gravity necessary to constitute a message 'of a menacing character' so as to amount to a criminal offence within the meaning of Section 127(1)(a) and (3) and was the Court correct to convict the appellant on the evidence and sentence him as it did?"
Public electronic communications network
"Twitter is a privately owned company which operates via a public electronic communications network. Messages which are posted on the Public Timeline of Twitter are accessible to all those who have access to the internet".
Nevertheless Mr John Cooper QC on behalf of the appellant sought to argue that the appellant's message was not sent by means of a "public electronic communications network". He submitted that this was a "tweet" found by means of a subsequent search, and so should be treated as no more than "content" created and published on a social media platform rather than a message sent by means of a communications network. It would, he submitted, be a dangerous development to extend the ambit of s.127(1) of the Act to "Twitter". He relied on the words used by Lord Bingham of Cornhill in the context of "grossly offensive" telephone messages under consideration in Director of Public Prosecution v Collins  1 WLR 308 (Divisional Court) and  1 WLR 2223 (House of Lords) that the section addressed "a service provided and funding by the public for the benefit of the public". Therefore, he contended, the section was primarily concerned with such messages sent by the telephone system and so with voice telephony.
"The "Twitter" website although privately owned cannot, as we understand it, operate save through the internet, which is plainly a public electronic network provided for the public and paid for by the public through the various service providers we are all familiar with The internet is widely available to the public and funded by the public and without it facilities such as "Twitter" would not exist. The fact that it is a private company in our view is irrelevant; the mechanism by which it was sent was a public electronic network and within the statutory definition "Twitter", as we all know is widely used by individuals and organisations to disseminate and receive information. In our judgment, it is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful"
" fairly plainly, is a message which conveys a threat in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen".
" Parliament cannot have intended to criminalise the conduct of a person using language which is, for reasons unknown to him, grossly offensive to those to whom it relates, or which may even be thought, however wrongly, to represent a polite or acceptable usage".
"On the other hand, a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender. The same will be true where facts known to the sender of the message about an intended recipient render the message peculiarly offensive to that recipient, or likely to be so, whether or not the message in fact reaches the recipient".