Could you explain the mens rea bit some more? I read through it and all I got from that is that they came to the conclusion that, with regards to the mental element, the conditions for intent to menace are unlikely to be fulfilled when the sender intends the message as a joke.
Sure. (but bear in mind I'm doing this from memory!)
The High Court supported the Crown Court's interpretation of the
mens rea of the s127 offence as being either (a)
intent to menace or threaten or (b)
awareness that the message could be taken as menacing or threatening.
That's the same definition as used for grossly offensive messages - and I think it is right for the "grossly offensive" offense.
But the
mens rea should be tighter for menace. Probably it should be limited to where there is real intent.
The problem I foresee is with statements that are perfectly innocuous in their true context but might be taken as menacing if they stand alone - and where the person making the statement might well be aware of the possible alternative interpretation, and admit as much under questioning.
Consider some examples:
"I am coming after the Queen" - in the context of a game of chess
"You need to blow up the House of Commons by tomorrow" - in the context of making a photograph bigger for next morning's edition
"I'm going to slay them in the aisles" - in the context of the Edinburgh Fringe
Any of these might be made as individual messages, and any might be taken individually as menacing, none are intentionally so, none should be criminal.