Chambers v Director of Public Prosecutions

For a message to have a menacing character under section 127(1)(a) of the Communications Act 2003, its terms, context and circumstances must objectively convey a threat capable of creating fear or apprehension in those who receive it or may reasonably be expected to read it. A message that reasonable recipients would dismiss as a joke, banter or empty exaggeration falls outside the offence. The provision applies to messages posted on publicly accessible social-media platforms. The sender’s intention to threaten is unnecessary, but the prosecution must prove an intention that the message be menacing or awareness of the risk that it may create fear or apprehension.

The appellant was convicted by the Magistrates’ Court of sending a menacing message by a public electronic communications network, contrary to section 127(1)(a) of the Communications Act 2003. The Crown Court at Doncaster upheld the conviction on 3 March 2011, finding that a Twitter post threatening to blow up Robin Hood Airport was menacing per se and that the appellant was at least aware that it might be taken as menacing.

The appeal by way of case stated concerned whether Twitter was a public electronic communications network, the actus reus and mens rea of the offence, and whether the message crossed the required threshold of seriousness.

1. Appeal allowed. The Crown Court’s conclusion that the Twitter post was a message of a menacing character was not open to it on an objective assessment.
2. Twitter was within section 127(1)(a) of the Communications Act 2003. A message posted on a public Twitter timeline was sent by an electronic communications service over a public electronic communications network. It was immaterial that the sender intended only his followers to read it.
3. The character of the message was an objective question assessed by reference to its precise terms, punctuation, context, means of communication and all relevant circumstances. The message had to convey a threat capable of creating fear or apprehension in those to whom it was communicated or who might reasonably be expected to see it. Actual fear or a report to the police was unnecessary, but the reactions of persons who read or would reasonably be expected to read the message were relevant.
4. The court gave particular weight to the absence of alarm or urgency among the appellant’s followers, airport security staff and the police. The wording, its public posting, the time allowed for intervention, and the identification of the sender were inconsistent with a serious warning. The Crown Court had placed too much weight on the fact that the message had been reported and on the appellant’s equivocal interview answer.
5. The court did not decide the mens rea issue because the actus reus was absent. It nevertheless stated that section 127(1)(a) created an offence of basic intent. Specific intent to threaten was unnecessary. The mental element would be satisfied by an intention that the message be menacing or awareness of the risk that it might create fear or apprehension in a reasonable member of the public.

• High Court (Administrative Court): allowed the appeal by way of case stated against the Crown Court’s decision of 3 March 2011.
• Crown Court at Doncaster: upheld the appellant’s conviction by the Magistrates’ Court.
• Magistrates’ Court: convicted the appellant under section 127(1)(a) of the Communications Act 2003.