That joke isn't funny anymore

The joke that landed Paul Chambers with a £385 fine and a criminal conviction that lost him his job probably didn’t make anyone laugh much when he first tweeted it. His ‘threat’ to blow a snow-bound airport ‘sky high’ unless it re-opened in ‘a week and a bit’ doesn’t rank alongside the funniest jokes ever told. But the furore unleashed by his unamusing tweet has made English justice a bit of a laughing stock.

It is not a crime not to be funny, although there are some ‘comedians’ I’d like to lock up ensuring they never again see the light of a dimly-lit stage.  It is inconceivable that anyone took his ‘threat’ seriously, indeed I believe the airport in question, the police, the Crown Prosecution Service (CPS), the magistrate and the crown court judge all accepted that his tweet was a joke.

And yet he was found guilty of ‘menacing behaviour’ under section 127 of the Communications Act 2003.  If you weren’t aware of such a crime, neither were most lawyers, and it says a lot about the case that the CPS came up with this obscure offence rather than attempting to prosecute under public order or terrorism legislation.

I am not going to attempt to explain the basis on which his legal team are appealing this conviction, suffice to say it all seems to revolve around the definition of ‘menacing’.  Unpicking this, and showing that Chambers was guilty of nothing more than frustration at not being able to fly to see his girlfriend and bad joke writing, has much wider implications than you might think.

If Chambers, a fairly ordinary bloke with, at the time, 600 or so Twitter followers, can be prosecuted for such an obviously throw-away non-threatening remark, where does that leave the rest of us ordinary tweeters?  What makes a comment like ‘I am going to kill my boss’ potentially criminal if it’s made online but nothing more than letting off steam if it’s in the pub after work?

What the unfortunate Chambers has shown is that the justice system and the laws it seeks to enforce are ill-equipped to deal with social media and the Internet age.  As the repeated subsequent retweeting of Chambers’ remark (the #IAmSpartacus campaign) without a single further arrest showed, the application of the law in this area is inconsistent at best.

To be fair, it’s hardly surprising when the legal framework it works with has little regard for the revolution in communication that’s taken place over the last few years.  The law under which Chambers was prosecuted was originally intended to protect 'female telephonists at the Post Office’ in the 1930s and updated in 2003 to include reference to ‘electronic communications networks’.

Even taking into account the almost breathtaking rapid development of social media (Twitter wasn’t even a glint in anyone’s eye in 2003), it is probably fair to say both lawmakers and those working in the justice system have been slow to acknowledge its impact, let alone grasp its importance.

Even a self-anointed social media champion like Louise Mensch MP clearly doesn’t get it, calling for networks to be shut down in times of social unrest and setting up her own ‘rival’ to Twitter, presumably because she can’t control the real one.  There are still MPs who want to ban Twitter from the Commons chamber, which overlooks the fact we can already watch debates live on tv and that quite a few MPs send texts and deal with correspondence when they are supposed to be paying attention.

This is an unfortunate, if unsurprising, failing of our elected representatives that reinforces the belief that they are out of touch.  But it becomes a more fundamental issue when those elected representatives are also legislators.  Just as the 2003 Communications Act failed properly to consider the impact of technology, so the new draft Communications Bill fails to understand the nature of data in the digital age.

The excellent Paul Bernal explains this in his submission on the bill to the Joint Committee on Human Rights.  Far from just being about technical data to help combat terrorism and crime, the bill would allow the police and other public authorities unreserved access to personal and intimate information about everyone, information that could never be guaranteed to be secure.

It would be futile to demand our legislators are experts in everything they have to make laws about and I suppose we can’t require judges or crown prosecutors to have a sense of humour.  But there must be some way to ensure the pillars of our establishment have some correlation, however tenuous, with the general public who must think Chambers’ conviction is absurd.

In the week in which BBC 4 started a series (and a bloody good one at that) explaining how English law is our great gift to the world because it was willing to put lay people at the heart of the system in the form of a jury, it is an unpleasant irony that Chambers was found guilty without one.  Or rather it is a vivid illustration of why involving ordinary people is so vital because no jury, I am sure, would have convicted him of causing menace, whichever definition you choose to use.

As Chambers’ barrister pointed out in court, if his tweet constituted a threat so did the first line of Betjeman’s poem ‘come friendly bombs and fall on Slough’ and, indeed, Shakespeare’s cry to ‘kill all the lawyers’.  Funny it may not have been, menacing it definitely wasn’t.

I dread to think what the rest of the world thinks about this debacle.  The Law Society and Bar Council were worried that allowing non-lawyers to become partners in law firms would undermine the reputation of our legal system abroad.  I’ll bet that the Twitter joke trial has done more to damage our international standing in this respect than opening up the legal sector to a bit of competition.

More importantly, the success or failure of his appeal will have repercussions for anyone who uses the internet for communication, which I guess is quite a few of us.  Whether we like it or not, we are all Spartacus now.

Posted in: Justice system

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