Case comment: Why someone was sent to prison for taking photos of the Grenfell Tower victims

Omega Mwaikambo was sentenced to three months

On 14 June 2017, the country witnessed one of the worst fires since the Second World War.

The final number of casualties of the Grenfell Tower fire is still not yet known, but at the time of writing 79 people are presumed dead.

During the aftermath of these events, Omega Mwaikambo, 43, a local resident based yards from the Grenfell Tower came across a deceased male who had been placed in a body bag, but had been left unattended. It’s been speculated the victim had jumped from the tower, and was waiting to be moved to the coroner’s mortuary.

Following this discovery, Mwaikambo took it upon himself to take pictures of the scene on his iPad. The pictures taken not only clearly displayed the body bag, but also showed the deceased himself after Mwaikambo opened the bag containing the victim’s body. He later uploaded one video and two pictures of the body bag with the man inside onto a social media site and later five pictures of the victim’s face and body.

The images posted on Facebook quickly caught the attention of other users, with many expressing their disgust that the pictures were published online. In fact, it is believed that the brother of the deceased came across the pictures before he was formally informed of his brother’s death by police.

Mwaikambo was soon arrested and charged under section 127 of the Communications Act 2003. Two days after the fire, he was brought before Westminster Magistrates’ Court, where he pleaded guilty to two counts of sending by a public communications network an offending, indecent or obscene message.

Defence lawyer Michelle Denney said Mwaikambo was shocked to find a body left unattended and had tried to find someone to come and help but, there was no one else in sight. He took the photos to “show how the victim was being treated” and get someone’s attention.

He received a custodial sentence of three months.

The Communications Act was originally enacted in the UK to control technological communications, but did not necessarily have the intention of covering social media.

However, the act has been adapted to apply to a social media context and we have recently seen a number of social media prosecutions brought before the courts using this legislation.

Under the act it is prohibited to send: “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… for the purpose of causing annoyance, inconvenience or needless anxiety to another.” The criminal offence is in the sending of the communication with the intention or awareness that the conduct is “grossly offensive or of an indecent, obscene or menacing character.” Essentially, there is no need for the communication to have a direct victim or to be received by the intended victim in order for the law to have been broken.

The magistrate in the case of Mwaikambo was highly critical of his behaviour:

The dignity of the dead must always be respected… What you have done by uploading those photos shows absolutely no respect to this poor victim. To show his face as he lies there is beyond words.

The moral outrage of Mwaikambo’s actions following this devastating event is reflected in his three-month custodial sentence — a sentence which is relatively high for this type of offence. To give a comparison, Peter Nunn received a custodial sentence of six weeks after being convicted under the same act for sending offensive messages and imagery to Caroline Criado-Perez (the feminist activist and writer) over a sustained period of time, thereby subjecting her to prolonged abuse.

However, there are a number of aggravating factors in Mwaikambo’s case, which appear to have influenced his punishment. First, the physical actions of opening a body bag to take pictures of the deceased created a moral outcry for justice, with the police having to refuse Mwaikambo bail for his own safety.

Second, as reflected in the judgment of the magistrate, Mwaikambo failed to physically removed the photos from his social media page, despite comments from other users such as: “This is really sick, just call the police.”

Furthermore, the actions of the defendant in this matter were regarded by the court as “unprecedented” and therefore worthy of a custodial sentence, despite Mwaikambo having no previous convictions.

Laura Bliss is a graduate teaching assistant at Edge Hill University.