CRIME — Message of menacing character — Sending by means of public electronic communications network — Defendant in Twitter message apparently threatening to blow up airport — Whether offence of basic intent — Whether message of “menacing character” — Communications Act 2003, s 127(1)(a)
Chambers v Director of Public Prosecutions  EWHC 2157 (Admin);  WLR (D) 234
QBD: Lord Judge CJ, Owen, Griffith Williams JJ: 27 July 2012
A message which did not create fear or apprehension in those to whom it was communicated, or who may reasonably have been expected to see it, was not of a “menacing character” within the meaning section 127(1)(a) of the Communications Act 2003. That provision created an offence of basic intent and, accordingly, the mental element of the offence was satisfied if the accused were proved to have intended that the message should have been of menacing character or alternatively, to have been aware of or to have recognised the risk at the time of sending the message that it might have created fear or apprehension in any reasonable member of the public who had read or seen it. Moreover, a “tweet” ” sent via the social networking site Twitter, was “a message” sent by an electronic communications service for the purposes of section 127(1) of the 2003 Act regardless of whether the tweet was read as a “message” or as content on the website.
The Divisional Court of the Queen’s Bench Division so held when allowing an appeal by way of case stated by the defendant, Paul Chambers, against the decision of the Crown Court at Doncaster (Judge Davies and justices) 3 March 2011 to uphold his conviction in the magistrates’ court for sending by a public electronic communication network a message of a menacing character contrary to section 127(1)(a) of the Communications Act 2003. The prosecution alleged that on 6 January 2010, following an alert on the Twitter social network, the defendant had become aware of problems due to adverse weather conditions at Robin Hood Airport in Doncaster, from where he had been due to travel nine days later. He had responded by posting a number of “tweets” on Twitter, including 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!!”.
Section 127(1) of the Communications Act 2003 provides: “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.”
LORD JUDGE CJ said, in the reserved judgment of the court, that the social networking site, Twitter, fell within the description of a “public electronic communications network” and that the potential recipients of messages or “tweets” sent via that network was the public as a whole, consisting of all sections of society. It was immaterial that the accused intended only that his message be read by a limited class of people, namely his followers, who, knowing him, would be neither fearful nor apprehensive when they read it. Accordingly, Twitter, and tweets sent via that network, fell within the ambit of section 127(1) of the 2003 Act whether one read the tweet at a time when it could have been read as content, rather than a message. A message which did not create fear or apprehension in those to whom it was communicated, or who might reasonably have been expected to see it, was not of a “menacing character” within the meaning section 127(1)(a). Before concluding that a message was criminal on the basis that it represented a menace, its precise terms, and any inferences to be drawn from its precise terms, needed to be examined in the context in and the means by which the message was sent. Moreover, the effect of the message on those who read it was not excluded from that consideration. In contrast with the offences to be found in section 127(1)(b) of the 2003 Act and section 1 of the Malicious Communications Act 1988, which required the accused to act with a specific purpose in mind and therefore with specific intent, no express provision was made in section 127(1)(a) for mens rea and, accordingly, was an offence of basic intent. That intent had been examined for the purposes of an offence contrary to section 127(1)(b) of the Act by the House of Lords in DPP v Collins  1 WLR 308. It would have been unrealistic for the mens rea required for the different classes of behaviour prohibited by the same statutory provision to have been different in principle, the one from the other, or on the basis of some artificial distinction between the method of communication employed on the particular occasion. In consequence, it was not open to the court to hold that it had to be proved, before it could be stigmatised as criminal, that the sender of a message had to have intended to threaten the person to whom it was or was likely to have been communicated, or that such a specific purpose was a necessary ingredient of the offence. The mental element of the offence created by section 127(1)(a) of the Act was satisfied if the accused were proved to have intended that the message be of a menacing character or, alternatively, to have recognised the risk at the time of sending the message that it might have created fear or apprehension in any reasonable member of the public who saw it. The mental element of the offence was directed exclusively to the state of mind of the accused, and if he might have intended the message as a joke, even if a poor joke in bad taste, it was unlikely that the mens rea required before conviction for the offence of sending a message of menacing character would be established.
Appearances: John Cooper QC and Sarah Przybylska (instructed by David Allen Green, Preiskel & Co LLP) for the defendant; Robert Smith QC (instructed by Director of Public Prosecutions) for the prosecution.