03/02/2020 Chambers v Director of Public Prosecutions [2012] EWHC 2157 (Admin) (27 July 2012) the findings do not address the unbroken pattern of evidence to be derived from the responses of those who read or must have read the message before the South Yorkshire Police investigated 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. By contrast, disproportionate weight seemed to be placed on the response of the appellant in interview to how "some" people might react, without recognising that the care needed to approach such a widely phrased question in context. The response was part of the interview as a whole, when looking back at what the appellant admitted he had done and his assertions that it was a joke. The question based on what "some" people might think embraced everyone, included those who might lack reasonable fortitude. This entirely equivocal response added nothing which supported the contention that the message was of a menacing character. 34. We have concluded that, on an objective assessment, the decision of the Crown Court that this "tweet" constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed. Mens rea 35. As the message lacked the characteristic required for the purposes of this offence, the issue of the appellant's state of mind when he sent it, and whether it was criminal, does not arise for decision. We shall therefore deal very briefly with this question. 36. By contrast with the offences to be found in s.127(1)(b) of the Act and s.1 of the Malicious Communications Act 1988 which require the defendant to act with a specific purpose in mind, and therefore with a specific intent, no express provision is made in s.127(1)(a) for mens rea. It is therefore an offence of basic intent. That intent was examined by the House of Lords in DPP v Collins. While it is true that the examination was directed to grossly offensive messages, it would be quite unrealistic for the mens rea required for the different classes of behaviour prohibited by the same statutory provision to be 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 we are unable to accept that it must be proved that, before it can be stigmatised as criminal, the sender of the message must intend to threaten the person to whom it was or was likely to be communicated, or that such a specific purpose is a necessary ingredient of the offence. That would, in effect involve an offence of specific intent which Parliament elected not to create. 37. In DPP v Collins, Lord Bingham emphasised that: "… Parliament cannot have intended to criminalise the conduct of a person using language which is, for reasons unknown to him, grossly offensive to those to whom it relates, or which may even be thought, however wrongly, to represent a polite or acceptable usage". He continued: "On the other hand, a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender. The same will be true where facts known to the sender of the message about an intended recipient render the message peculiarly offensive to that recipient, or likely to be so, whether or not the message in fact reaches the recipient". 38. We agree with the submission by Mr Robert Smith QC that the mental element of the offence is satisfied if the offender is proved to have intended that the message should be of a menacing character (the most serious form of the offence) or alternatively, if he is proved to have been aware of or to have recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it. We would merely emphasise that even expressed in these terms, the mental element of the offence is directed exclusively to the state of the mind of the offender, and that if he may have intended the message as a joke, even if a poor joke in bad taste, it is unlikely that the mens rea required before conviction for the offence of sending a message of a www.bailii.org/ew/cases/EWHC/QB/2012/2157.html 9/10