Journal

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

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Omega Mwaikambo was sentenced to three months

Image via Instagram (fto_kickz)

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.

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The Communications Act was originally enacted in the UK to control technological communications, but did not necessarily have the intention of covering social media.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

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

77 Comments

Anonymous

Presumed dead or MISSING***

Anonymous

He didn’t need to open the body bag and photograph the graphic injuries to illustrate that a body was being left unattended.

A ghoulish voyeur of the worst order. The type that used to attend public hangings in Victorian times.

Right result.

Anonymous

Try to be smart, serve him right

Anonymous

Thank you Laura. A well written and efficient article.

My only contribution to the subject is to point out that s.127 is the current version of the offences that have long existed for menacing silent phone calls, heavy breather calls, obscene calls and distressing prank calls. The previous, and very similar, version of the offence was in the Telecoms Act 1984. In other words s.127 was originally aimed at misuse of the phone network but is drafted for “networks” more generally because we now have more than the public telephone network by which to send e-communications.

I think it’s time we had separate, more specific and detailed legislation dealing with misuse of the internet and other networks by uploading, sending etc sounds and images (i.e. other than hacking, computer misuse and so on).

Anonymous

I think another piece of legislation is not necessary. You then get into disputes about other innovations in the future – you just have to give the current legislation a wide reading/interpretation.

Laura

Thank you for your comments. I am very much in the early stages of my research, so your comments are much appreciated. I agree that better legislation is still needed when it comes to social media. We do have a number of Acts available in our legal system, but they are not always used effectively. For instance, there are arguments surrounding the case of Peter Nunn and Caroline Criado-Perez , where it is suggested that the wrong Act of Parliament was used to prosecute the defendant.

Anonymous

Animal.

Anonymous

Plant.

Anonymous

Mineral

Aman

Really well written and clear.

Thank you

Laura

Thank you!

Andrew Keogh

When mentioning the offence, the writer conflates s 127(1) and (2). They are different offences.

Consideration

You are technically right, but perhaps for the sake of getting baps buttered it was simplified?

Anonymous

Presumably he was convicted under s127(1) as there may have been issues proving the mens rea under s127(2) – particularly if he gave little thought to persons who would be distressed by the images. It also looks as though he pleaded guilty. It was a deplorable, reprehensible act but a suspended sentence, with some appropriate community work, would have sent out a strong message.

Laura

Thank you for your comments. The use of s127(2) has been used by the courts to establish the mens rea (mental mind) in some cases concerning social media. In hindsight, I should have made it clearer in my work. I have made a note of this for future pieces. Thank you for bringing it to my attention.

Caden

So, how about sous vide beef bogiuurgnon. Marinate some big pieces of chuck in red wine, orange peel, and spices. Brown meat then sous vide for hours at 120 degrees while simmering wine, spices, veg, and fond in a really cool Le Crueset casserole. Add juices from meat bag and continue to simmer. Then strain and serve with rare chuck, mushrooms and onions browned in bacon fat, and yummy red wine sauce. Damn my family would love it. Mmmm..

Just Anonymous

If what the magistrate said is correct, I don’t understand why the media weren’t committing the exact same criminal offence last year when they published pictures of the dead body of Aylan Kurdi lying on that beach.

Don’t misunderstand me. If the defendant’s thinking in publishing these pictures was “Hey everyone, dead bodies – isn’t that cool!” then I have little sympathy.

But if he was honestly trying to show the reality of the situation (albeit possibly crassly and misguidedly) I don’t see why that should bring him a criminal conviction.

Anonymous

It was the way it was done.

Anonymous

The Aylan Kurdi images were from a distance, in many cases they were also blurred out, and they certainly did not identify the victim. The difference here is that Mwaikambo has not only taken images of the body bag laying in the road, but he has also opened the bag and taken close-up images identifying the victim and showing the injuries.

It’s quite a different scenario.

Laura

This is a really good point. I feel the difference here was the physical effort he went to in opening the body bag. But that being said, I am very much of the mind that the case was rushed through the system and therefore his defense was not as strong as it could have been.

Ciaran Goggins

One of the Lancashire Mwakaimbos?

Anonymous

DASS RAYSISS!!!!

Doc. Ludvig Friedrich Von Lowenstein

Good job, Just Anonymous wasn’t Mwaikambo’s defence lawyer or Mwaikambo might have got six months.

I should have liked to see the probation report. And a psychiatric examination if possible.

Just Anonymous

Ouch! That’s me told…

Anonymous

Custodial seems a bit harsh. A hefty fine and a slap on the wrists, coupled with the shame and reputational destruction which will arise out of this, would be enough to punish and deter.

The Art of Photography

When Kenneth Jarecke photographed an Iraqi man burned alive, he thought it would change the way Americans saw the Gulf War, but the media wouldn’t run the picture.

When Omega Mwaikambo photographed a Grenfell victim photographed an abandoned deceased man in a body bag, he thought it would show how the victim was being treated and get someone’s attention, but he was sent to prison for a number of months.

Anonymous

Interesting observation!

Anonymous

He opened a closed body bag to take a number of pictures and post a video on facebook…not quite the same thing.

Liberturd Leftie

I agree, he opened a closed body bag, took pictures posted online and if what another poster stated, ignored cries to take them down, that shows blatant disregard.

Does it rise to the level of a custodial sentence, IMHO no, suspended sentence maybe hefty fine and/or a period of probation, but not a custodial sentence.

A custodial sentence should only be utilised if it is absolutely needed this case on its facts did not warrant such a sentence.

Bojan

Of course he opened it. It was unattended, how could he be sure the man inside was not suffocating inside? Seems like he was open to criticism no matter what he did in that situation. Suppose prison is what you get for trying to do the right thing these days. What is this country coming to?

Liberturd Leftie

I assume you are being satirical. At least I hope you are.

Enner

I assume he is.

But who is going to butter his baps now he is in prison? It is a tricky situation.

Dalton

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Anonymous

He could have just photographed the bag in context, that pobably would have served his stated purpose, and not attracted the attention of the law.

His stated purpose just seems to be some kind of after the fact defence – what can I say to defend what I have done!?

The difference with Jarecke’s photograph is that he just shot what he saw, he didn’t pose the victim or uncover them, and his image does not identify the victim.

Completely Diverse Person

Maybe it was because he was black?

Swell

Definitely. Do you see white people going to jail? Never. Totally racist system. White people don’t go to jail, even the people who look white – they are actually in fact a black person who has been persecuted. Just because somebody has a certain skin colour, that does not mean they are black or white. It doesn’t work like that.

Pjander

I do see where you are coming from there. People are, quite literally, only seeing things in black and white and are not thinking very liberally on this point. You don’t have to associate with the gender you are born as these days, you aren’t forced to be heterosexual, you have freedoms. Yet you can’t say you are black if your skin is white? Just because of how you physically look? I think people will open their minds soon.

Anonymous

I once heard a white youth claiming he was a ‘n*gger too’. The older black men (in their fifties, or older) around him sort of laughed and said ‘no, no, no…’.

zan

Swell. People are not jailed because of the colour of their skin. Yes, people are stereotyped sometimes and this is wrong but people are only jailed for criminal offences. A white man with a hood up and looking suspicious in an area with a high crime rate would be searched and raise just as much suspicion as a black man with a hood up looking suspicious in an area with a high crime rate. The man who has been found to have committed a crime is the one who could face charges. So what are you saying, dont arrest people who are black?

Swell

No, I am not saying that at all.

If a person who visually appears to have black skin commits a crime, but is in fact a white person, he will not go to jail.

If a person who visually appears to have white skin commits a crime, but is in fact a black person, he will go to jail.

So while it may appear that people both black and white go to jail, actually, only black people go to jail. It is incredibly racist.

Jojo

I am brown, where do I fit into your theory Swell?

Swell

Do you mean that you visually appear to be brown, or that you are in fact brown?

If you are just visually brown, whether or not you will go to prison for committing a crime will depend upon whether you are actually white, brown, black, etc.

If you are actually brown, there is a moderate chance that you will go to prison for committing a crime.

Anonymous

I’m not actually sure what colour I am.

Depending on the weather I can be anything from a very pale blue to a sort of beige/yellow.

Anonymous

you are not donald trump i hope ?

Osman

It sounds like you need to get your baps buttered

Anonymous

I can only guess that what the poster means is that whther you go to jail or not depends on your class. A person who looks black but is in fact white is probably a well educated, professional black person. A person that looks white but is in fact black is probably a poorly educated person wth poor job prospects. Other black people are black, and other white people are white.

So, ‘black’ people go to prison, and ‘white’ people don’t.

That’s the only sense I can make of this post.

Gooner16

@swell, have you got any statistics for your assertions? It may be your perception but it is simply not true. There are plenty of ‘white’ skinned people in jail…

Completely Diverse Person

The Omega Man

Anonymous

I can’t even defend the defendant….he did wrong across the board

zan

I could understand a video or pictures which could be used as evidence to assist the investigation or to ensure honesty and transparency, but this type of behaviour (taking and posting a video/photo of a deceased man who has jumped from a building in desperation) is disrespectful to the man and his family and grossly indecent. Its a horrible thought that there are such people out there walking the streets. I’m glad he received a custodial sentence. Even the thought of it is sickening.

Gooner16

@Zan, but for me its not the fact of taking the photos, close up and personal opening the body bag etc; but then on top of that blatant disrespect he had the gall {and insensitivity} to post them on social media… that’s appalling imo..
As someone posted above, if he”d taken them in context and situ, but without identifying the person, that I could understand, but he didn’t.
Maybe his jail time might focus his mind some..

Actually a Real Lawyer

Fire on 14th June.
Convicted on 17th June.
Almost certainly without a probation report
And certainly without a psychiatric assessment.
3 months with no previous on a guilty plea.
This man should appeal.
Presumably this is what Mags get away with now with legal aid cuts.
And why Westminster Mags?

Laura

I agree, the case was rushed through the system when emotions surrounding the fire were still high. I don’t condole his actions, but that being said, with a clean record and a material witness to the events, 3 months is a long sentence.

Anonymous

What does he need a witness for – the crime isn’t taking photos of the deceased, it’s posting them online. There’s no question that he did both of these things, so what does a witness add to the mix?

Laura

I mean he was a material witness to the fire. Living just yards from the tower, he was giving out tea to firefighters hours before he took the pictures. What I am getting at here, surrounds how he has mentally dealt with witnessing the events. I don’t condone what he actually did, but seeing these events is going to impact on peoples lives.

Chas

Westminster because K & C is in the Central London LJA.

Actually a Real Lawyer

One might consider reporting the Magistrate

Anonymous

Except it wasn’t a Magistrate. It was a District Judge.

Professor Plum

To my knowledge a slap on the wrist is not and never has been a sentence known to either the criminal or civil law of England & Wales.

Wendy

Baps getting buttered regardless, sometimes you don’t need a strictly formal sentence. I would partake but too busy getting my baps for the festival.

Just asking, don't judge

Did he tamper with the body at all?

An actual lawyer.

No. He didn’t tamper with the body.

Just asking, don't judge

Not just a little bit? Are you sure?

Omega

Me dindu nuffin rong!

Iami Rastafari of Down Pressed Counsel

Me take objection
To de racist direction
Of dis cross examination.

Him get no report of probation
As be required before internation
Him be dragged up
And face damnation
With no defence to his name
Worth a foundation

Gooner16

Coolio…

A barrister

So the actual acts of opening the body bag and taking the photo were not illegal or what he was convicted for. His conviction was just for posting the photo online.

If so, it would seem to follow that his earlier actions in taking the photo and opening the body bag should be irrelevant to his sentence. His sentence should have been the same as anyone else who posted a similarly offensive photo.

Looked at in that regard, the sentence seems manifestly excessive.

Laura

This is a really good argument. I believe he was originally arrested for sending malicious communications and obstructing a coroner. So far, he has not been prosecuted for the second act. For me, there is no doubt that he sent malicious communications, but for someone with a clean record and a material witness, the sentence is on the excessive side.

Anonymous

The maximum sentence is six months – can you think of a worse example, that would not have the offence upgraded to something else with even longer sentences?

I’m not sure that it is relevant that it was a first offence. How many times is someone going to do the same stupid thing?

Laura

I meant the first act- he has been prosecuted only for sending malicious communications so far.

Anonymous

Many references here to “the magistrate”. Let’s get it straight, it may have been the Magistrates’ Court, but he was sentenced by a District Judge. Whether the sentence was right or not, he is a professional, paid by the government. If there’s any flak flying, don’t let the lay magistracy get hit.

Anonymous

MY, hasn’t it all gone quiet since I (in the post immediately above) pointed out that it was “one of your own” professionals and not a bumbling amateur lay justice – like me?

Anonymous

Was the deceased left in the communal entrance area on the ground floor in plain view of any inhabitants leaving their homes?

Anonymous

http://www.landlordzone.co.uk/news/shelters-close-connections-with-cladding-company#comment-8345

Shelter organisation and every volunteer shamed. Each member associated with them should be shamed. They are responsible for blood on their hands for every life lost at Grenfell tower. They are without a doubt responsible in part for supporting inadequate material which resulted in this devastation. Pure disgust and despicable actions.

Anonymous

Nice crisp article.

Reggie

Hi Laura
I appreciate you are still learning, so respectful suggestion to you: if you check your learning materials: mens rea means (in Latin and in Law) guilty mind.
As you know, it is an essential part of guilt, and of course you will know that actus reus means guilty act. Rea and Reus both mean guilty and are spelled differently only because in Latin, the descriptive word (aka adjective) has to have an ending that is linked to the word it describes (in ways that are too fiddly to explain here, but Latin ‘declensions’ and ‘conjugations’ are categories of words that have lists of the relevant different endings if you are bonkers enough – like me – to look them up ).

Tinder Rinder

Can anyone be charged for the same reason for sending a picture of war criminal Tony Blair ? As I am sure there are many people who are distressed by the sight of his sanctimonious visage given his obvious conduct!

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