Plenty has already been said and written about the Twitter joke trial, so there isn’t really a huge amount I can add to it. But one thing did strike me as I was reading the full text of the judgment.
One of the advantages of reading what the judge has to say about something is that you tend to get the key facts presented impartially, without the usual media spin and interpolation. Picking up half way through paragraph 13, this is how Lord Judge describes the sequence of events that led to the tweet being investigated:
[The duty manager] was at home searching generally for any “tweets” which referred to Robin Hood Airport. In cross examination he said that he did not know whether the “tweet” was a joke or not, but as even a joke could cause major disruption it had to be investigated. Accordingly he referred the “tweet” to his manager, Mr Armson. Mr Armson was responsible for deciding whether any perceived threat to the airport should be graded as “credible” or “non-credible”. If “credible”, it was to be referred immediately to the Ministry of Defence, but if “noncredible”, as a matter of standard practice it was to be reported to the airport police. Mr Armson examined the appellant’s “tweet”. He regarded it as “non-credible”, not least because it featured the appellant’s name and, as he noted, the appellant was due to fly from the airport in the near future. Nevertheless in accordance with airport procedure he passed this “tweet” to the airport police. The airport police themselves took no action, presumably for exactly the same reason, but they decided to refer the matter on to the South Yorkshire police.
Up to here, this is the system working as designed. Airports are prime targets for terrorism, so it’s entirely reasonable that staff should, as a matter of course, check for anything potentially suspicious on social media. It’s also entirely understandable that even mentions deemed “non-credible” are still reported and logged, because something which appears innocuous at the time may later turn out to be significant in the light of subsequent events. So the fact that Paul Chambers’ tweet was logged and reported is to be expected. The airport authorities have also got a lot of #iamspartacus tweets in their collection now, for exactly the same reason. It was logged, it was reported, and at each stage it was deemed not worthy of action. Job done.
However, for some reason known only to themselves, South Yorkshire police decided to take action. They arrested Chambers and questioned him. And then, after taking advice to the CPS, referred the case for prosecution. He was charged, and convicted. The original conviction in the Magistrates Court was firstly appealed to the Crown Court, and then eventually to the High Court where, at the second attempt, the appeal was granted and the conviction overturned. What’s interesting here, though, is the reason given by the Crown Court for upholding the original conviction. As Lord Judge describes it:
On the basis of these facts the Crown Court was “satisfied” that the message in question was “menacing per se”. The court took the view “that an ordinary person seeing the “tweet” would see it in that way and be alarmed. The airport staff did see it and were sufficiently concerned to report it”.
If you look back at the earlier description of how the tweet came to the attention of the authorities in the first place, though, you will see that that statement by the Crown Court is simply wrong. The airport staff did not report the tweet because they were “sufficiently concerned” about it. They reported it because their standard procedures required them to report it whether they were concerned or not.
What’s happened here, therefore, is a serious failure of communication. Somehow, the airport’s policy of “report everything, however trivial” has been transmuted by the CPS and the courts into “if it has been reported then it must be important”. That should not have happened. It would not have happened had the CPS and courts understood the airport’s policy on reporting anything at all which might be a potential threat.
Of course, the High Court did grant the appeal and this was one of the points mentioned by Lord Judge when giving his reasons for granting it:
No weight appears to have been given to the lack of urgency which characterised the approach of the authorities to this problem, while the fact that those responsible for security at the airport decided to report it at all, which was treated as a significant feature, rather overlooked that this represented compliance with their duties rather than their alarmed response to the message.
To that extent, therefore, justice has been done. At least, it has in this case, and the High Court judgment has also laid down some important (and welcome) guidelines on how the law should treat free expression on the Internet. But it seems to me that there are still some significant underlying issues that need to be addressed.
It is increasingly the case that the police, security services and other law enforcement agencies take the same approach as Robin Hood airport with anything that may possibly be relevant and insist on it being logged and recorded even if those doing so have no immediate reason to be concerned. I can understand why these procedures are followed, and up to a point I don’t have any problem with it. But such a process has two significant causes for concern.
Firstly, there is the potential for a “record first, disregard later” policy to lead inexorably towards more and more monitoring and logging of material that is entirely innocuous. That represents a potential invasion of privacy. I accept that if I chat to my friend as we walk down the street, I cannot complain if we are overheard and where we go is overseen, but I still don’t expect to find that my every steps and words are being logged by a secret service agent walking three paces behind me. Equally, I know that anything I post on Twitter is visible to the whole world if they care to look, but I don’t expect it to be routinely logged by GCHQ. There needs to be a balance between deliberately searching for useful and relevant information and just slurping the web in the hope of picking up something interesting.
The other point is that the more our everyday actions and communications are logged and reported, the more opportunities there will be for the “no smoke without fire” fallacy to lead to prosecutions similar to the Twitter joke trial. “It must be important, otherwise it wouldn’t have been reported” is a very normal human reaction, but it’s also often a wrong reaction – and even more so when normal procedure is to report even the unimportant. Consider, also, the possibility for character assassination by the tabloid media when they discover that a prominent politician or sportsman has been recorded as talking about, say, drugs, sex or bribes in their emails. Whether it’s a casual, throwaway remark or a direct reference to nefarious deeds won’t make any difference – the media can simply “report the facts” and let their readers draw their own conclusions.
For all those reasons, the Twitter joke trial isn’t just about free speech on the Internet. It’s also about the increasing movement towards more and more intrusive monitoring of our everyday lives, and the ramifications for privacy and law enforcement. And the quashing of Paul Chambers’ conviction hasn’t done anything about that.