Friday, 23 June 2017

Swift justice ~ Communications Act 2003 s.127

There are times when the administration of justice can be swift as demonstrated by the case of Mr Omega Mwaikambo (M).

It is reported - Mirror 16th June - that M made cups of tea for firefighters as they battled the Grenfell Tower fire.  He noticed that a body had been placed into a body bag and left on the ground.   According to the prosecutor (Tom Little) - M uploaded photographs and video of the deceased inside the body bag and then five photographs of the upper body and the face and the blood that had drained from the body.  According to the defence (Michelle Denney), M found the deceased person and was shocked by the fact the body was there and felt a sense of shock that the body was unattended.  He tried to find someone to come and help but "there was not one else in sight" and he took the photos to "show how the victim was being treated" and get someone's attention.

The offence:

M was charged with two offences under the Communications Act 2003 section 127(1) - Improper use of public electronic communications network. The case was dealt with at Westminster Magistrates' Court.
It is a summary offence.  M, who had no previous convictions, pleaded guilty and was sentenced to 6 weeks imprisonment on each charge with the sentences to run consecutively.

Section 127(1) states:

A person is guilty of an offence if he -

(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) causes any such message or matter to be so sent.


The following can be gleaned from the decided cases.

a)  The actus reus of the offence is the sending of a message or other matter.  The offence is complete when the message is sent.

b)  The message has to be one or more of "grossly offensive", "indecent" or "menacing."  This is a question of fact for the Magistrates but, in DPP v Collins [2006] UKHL 40, Lord Bingham said [para 9]:

" ... it is for the Justices to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances. .... Usages and sensitivities may change over time. Language otherwise insulting may be used in an unpejorative, even affectionate, way, or may be adopted as a badge of honour ("Old Contemptibles"). There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates."

The judges have often stressed that the context in which a message is sent is important.  Words have to be judged taking into account their context and all relevant circumstances.  In M's case the images were uploaded as the fire raged and at a time when emergency services were hard-pressed to cope.  It was not known who had been killed.  There was the possibility that relatives of the dead person might have seen the images on Facebook before they were informed of the death by the Police.

c)  The offence is one of so-called "basic intent" - Paul Chambers v DPP [2012] EWHC 2157 (Admin) at para. 36.  In DPP v Collins, Lord Bingham said - "What, if anything, must be proved beyond an intention to sent the message in question? Mr Perry, for the Director, relying by analogy on section 6(4) of the Public Order Act 1986, suggested that the defendant must intend his words to be grossly offensive to those to whom they relate, or be aware that they may be taken to be so."  Lord Bingham went on to accept that submission.


The Crown Prosecution Service (CPS) guidance for this offence states that:  "The defendant must either intend the message to be grossly offensive, indecent or obscene or at least be aware that it was so. This can be inferred from the terms of the message or from the defendant's knowledge of the likely recipient (DPP v Collins [2006] UKHL 40). The offence is committed by sending the message. There is no requirement that any person sees the message or be offended by it."


The images uploaded by M were undoubtedly offensive and it seems fair to say that, if they are assessed in the way put forward by Lord Bingham, they were "grossly offensive."  It was said, by the defence, that M's purpose was to "show how the victim was being treated" and get someone's attention.  This is somewhat inconsistent with M having the mens rea in the sense required by Lord Bingham's speech.   Nevertheless, M was legally represented and one can assume that the mens rea element of the offence was duly considered when advising that a guilty plea was appropriate.

M had no previous convictions and yet he received an immediate custodial sentence for his actions.  I have no doubt that many will agree that the sentence was right.  M has a right to appeal it to the Crown Court.

The Criminal Justice Act 2003 section 142 sets down the purposes of sentencing and these include punishment, reduction of crime (including its reduction by deterrence) etc.   The Act (section 152) requires that a court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.   Clearly, the court considered that the offences crossed this "so serious" threshold.

Sentencing Guidelines for the section 127 offence are HERE.   To have imposed the sentence it did, the court must have considered the offences to be Category 1 (High culpability and greater harm) leading to a sentencing starting point of 9 weeks custody with a range from High Level Community Order to 15 weeks custody.  The guidance requires that credit be given for a timely guilty plea.  This is normally one-third when the guilty plea is entered at the first stage of the proceedings - see Guilty Pleas Guidance.

It is not clear from any of the reports whether consideration was given to imposing a Suspended Sentence Order - see Sentencing Guidelines Council and also the Adult Court Benchbook at page 41.

Legal Cheek has an article about the case 

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