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“Crap! 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!!”

While much has been written about whether the above tweet sent by Paul Chambers to his girlfriend is indeed “menacing” and therefore a breach of s127 of the Communications Act, 2003 or of his Article 10 Freedom of Expression generally – I’m not sure whether anyone has discussed why it may be taking the High Court some time to consider its response to Mr Chambers’s appeal of his conviction by way of case stated.

As rightly identified in this blog, the issue that would have caught the court’s eye in this case is whether the decision to bring the prosecution (and conviction) against Mr Chambers was a proportionate response to a legitimate aim – the legitimate aim being the proscription of sending menacing messages over a public communications network.

Article 10, ECHR: Freedom of Expression

Article 10 of the European Convention on Human Rights provides:

(1) Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

But Freedom of Expression is a qualified right – and it comes with “responsibilities”

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Remembering that the CPS and indeed the courts are Public bodies, the High Court is obliged to consider whether the CPS’s prosecution and the court’s conviction of Mr Chambers was incompatible with his Convention right to Freedom of Expression.

Applying the law

Article 10(2) permits restrictions on freedom of expression where such restrictions are “prescribed by law” and “necessary in a democratic society”.  In Mr Chambers’s case, the legal basis for the restriction is s127.

As to whether the restriction is necessary, the most relevant grounds in Article 10(2), in my view, are, “the interests of public safety or for the prevention of disorder or crime”.

And stay with me for the science bit …

Because Convention rights are engaged, the court must apply the test of proportionality. That test is found in the 2001 House of Lords case: R v SoS for Home Dept ex p. Daly, which adopted the following three-pronged approach:

a)  the legislative objective must be sufficiently important to justify limiting a fundamental right;

b) the measures designed to meet the legislative objective are rationally connected to it; and

c) the means used to impair the right are no more than necessary to accomplish the objective.

Therefore, in my opinion, the issue for the High Court is (c) – whether the means used to impair Mr Chambers’s right to freedom of expression were more than necessary to accomplish the objective of proscribing menacing messages over a public communications network.

I would think that the two previous judicial findings that the tweet was “menacing” is sufficient to meet the test that the CPS was correct in bringing this prosecution. I’m not sure what the CPS (or the court) could have otherwise done to achieve the objective of proscribing menacing messages over a public communications network.

If that appears a bit circular, consider the 2007 House of Lords case Huang and Others v Secretary of State for the Home Department, where it was held that in considering the proportionality test, the courts need to balance the interests of society with those of individuals.

While I await the outcome of the High Court’s judgment, in my opinion, the interests of society in ensuring that menacing messages are not sent over a public communications network will outweigh Paul Chambers’s right to freedom of expression.

Surely, Paul Chambers’s individual right to make a “joke” on Twitter, a public communications network, which bombed, (sorry, ed) is outweighed by society’s right not to have menacing tweets – “jokes” or not – sent over said network.

As for the law itself being a menace? There is always going to be a tension between competing rights. Even with an American First Amendment right to free speech, there is no right to defame or yell “fire” in a crowded theatre.

In my opinion, Paul Chambers’s tweet came within a whisper of yelling “fire” in the Twitterverse – and that’s not protected speech.