“Antifacist activist,” Morning Star contributor, author and historian Dr Louise Raw, is raising money through a Go Fund Me campaign to see what legal action can be taken against Jeremy Clarkson, The Sun, or its editor. As readers will probably know, the reason for this is Clarkson’s 16th December Sun column.
The offending article has now been taken down. Quite rightly it generated thousands of complaints. It was a horrible little piece which should have been strangled at birth. The Sun’s editor, like Mr Clarkson, should be ashamed of herself for publishing it.
Mr Clarkson accused Harry of being a puppet manipulated by Meghan Markle. He has, said Clarkson, “no more control over what he says or does than Basil Brush.”
That was rude, but it was the next passage that caused the outrage:
“Meghan, though, is a different story. I hate her. Not like I hate Nicola Sturgeon or Rose West. I hate her on a cellular level.
“At night I’m unable to sleep as I lie there, grinding my teeth and dreaming of the day when she is made to parade naked through the streets of every town in Britain while the crowds chant ‘Shame’ and throw lumps of excrement at her.”
Apparently Mr Clarkson was making a reference to the television series Game of Thrones, though if so it was one that would have been missed by many of his readers including the many who, like me, have never watched a single minute of the drama.
He continued in somewhat milder terms, making a familiar argument: that Meghan Markle’s activities were likely to damage the Royal Family.
“Because one day soon, my generation will all be dead, and we will be replaced by a new bunch who are growing up believing that Charles and William and Co are bullies who are waited on hand and foot by slaves, eunuchs and spin doctors.
Unless, of course, when Meghan takes her hand out of the ginger glove puppet, he remembers who he is and gives us ‘the’ truth.
The Go Fund Me campaign
Dr Raw says that she “has a team of lawyers who have agreed to review the case.”
The Go Fund Me campaign is needed because the lawyers are not working for free.
It has an initial “goal” of raising £15,000. (I thought it was originally £18,000 but either I misread the amount or the team of lawyers has reduced its quotation). It has already raised over £13,000, including a first (anonymous) donation of £3,500 and one of £4,000 from a “Sandra Copeland.” These are quite extraordinary amounts of money for people to be giving merely to explore the possibility of litigation against Clarkson.
The “tentative legal grounds” which are being explored are these:
“First, on the civil side – under the Protection from Harassment Act 1997.
Second, on the criminal side – under the provisions of S.4A of the Public Order Act 1986 and under s.127 Communications Act 2003.”
Dr Raw updated the Go Fund Me page yesterday to clarify that they are also considering a claim for “racial harassment under the Protection from Harassment Act 1997 and racism in the provision of a service.”
The Protection from Harassment Act 1997
“Harassment” is a civil wrong (and potentially a crime) under the Protection from Harassment Act 1997. It is created by S.1 of the Act and consists of pursuing a “course of conduct” which:
“(a) amounts to harassment of another; and
(b) which he knows or ought to know amounts to harassment of another.”
There are numerous difficulties with using this provision against Mr Clarkson.
The first is that harassment under the act, racial or otherwise, requires a “course of conduct.” A single newspaper article simply cannot amount to harassment. If there has been such a course of conduct it certainly has not been identified.
Describing the incident as “racial harassment” makes no difference, and in any case the article did not refer to Meghan Markle’s race.
And there is an even more fundamental problem with the tentatively suggested civil action:
S. 3 (1) provides:
“An actual or apprehended breach of section 1 (1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.” [Emphasis added]
As far as we know, the Duchess of Sussex has not asked Dr Raw to help her bring an action. If the victim of the harassment does not want to litigate the issue, the chances of Dr Raw somehow succeeding on her behalf in a crowd-funded civil action are nil.
On her Go Fund Me page Dr Raw has invited others to contact her if they “felt harassed by the article or Jeremy Clarkson’s recent false denial.”
I’m not entirely sure what Dr Raw means when she refers to Clarkson’s “recent false denial.” Presumably she means his expression of regret for his article, which was indeed something of a “non-apology apology.” Maybe so, but it makes no difference to the prospects of success of an action for harassment. Nor does it matter how many people say that they felt harassed by the article. The chances of a successful civil action for harassment remain zero.
A Criminal Prosecution?
What then of the chance of a criminal prosecution against Clarkson?
The two possibilities Dr Raw says her legal team are considering are S.4A of the Public Order Act 1986 and S.127 of the Communications Act 2003.
Let’s look at each of these.
S.4A Public Order Act 1986
S.4A of the Public Order Act provides:
“(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
thereby causing that or another person harassment, alarm or distress.”
S.4A carries a maximum six month prison sentence.
Whilst it is more usually employed to deal with disturbances in the street, subsection (1) (b) does cover written material, although I have never heard of it being used to prosecute the author of a national newspaper article.
The legal obstacles to its use in this case are virtually insuperable.
First: the offence requires proof that a person actually has been caused “harassment, alarm or distress.” Without any evidence from the Duchess of Sussex to that effect any prosecution seems doomed to failure.
Perhaps Dr Raw herself, or some of her funders, might say that they themselves have been distressed by Mr Clarkson’s language? In theory the offence can be committed if abusive writing aimed at one person, in fact causes distress to someone else. But even putting to one side the difficulty of proving that Dr Raw or some of her supporters had in fact been caused sufficient “distress” to justify a criminal prosecution (trivial annoyance or upset is irrelevant, it has to be something which causes “real emotional disturbance or upset,” see R v. DPP  EWHC 1375) it would be extraordinary to bring a prosecution without any evidence from the person who was the subject of the offending article.
Secondly a prosecution under S.4A would require proof that Mr Clarkson intended to cause someone (presumably the Duchess) harassment, alarm or distress. Mere recklessness is insufficient.
Freedom of speech
Thirdly, the words of the section have to be understood in a way that makes them compliant with Article 10 of the European Convention on Human Rights.
Whether you agree with Clarkson or not, his argument that the Duchess’s behaviour is likely to damage the Royal Family, and by implication the institution of the monarchy, was an expression of opinion on a matter of considerable public interest. However unpleasantly expressed, he was making a serious argument.
And feeble as the protection of Article 10 may be compared, for example, to the US First Amendment, both it and the common law do still provide considerable protection for freedom of speech. As Lord Justice Sedley famously put it in Redmond-Bate v. DPP  EWHC Admin 733:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”
Nobody could reasonably take from Clarkson’s article that he was actually encouraging a violent assault on Markle.
In any case, Clarkson is far from alone in the use of highly unpleasant and even violent language when discussing public figures. As Ross Clark rightly pointed out in Thursday’s Daily Mail (and I am well aware that the Daily Mail does not have clean hands when it comes to gutter journalism), nasty though Clarkson’s words were, equally or nastier things have been said or written by left wing comedians, journalists and politicians.
After a milk shake was thrown over Nigel Farage, the comedian Jo Brand said “why bother with a milk shake when you could get some battery acid.” Like Clarkson, it was clear that she was making a tasteless joke. Nobody could reasonably have taken her to be encouraging an acid attack on Mr Farage. Of course she was not prosecuted.
Phillip Pullman “jokingly” said “when I hear the name ‘Boris Johnson’ for some reason the words ‘rope’ and ‘nearest lamp post’ come to mind as well.” Nobody can reasonably suggest that Pullman was encouraging the lynching of Boris Johnson. Of course he was not prosecuted.
Clark gives various other examples. The point is not to encourage such language in public debate, but to point out that in a free society the law has to permit a wide degree of tolerance for cruel language and tasteless jokes. A society in which writers, journalists or politicians are constantly worried that they may be arrested, harassed or even imprisoned because of the risk that they might “distress” readers is not one in which I would want to live. Trading freedom of expression for freedom not to be offended would be a disastrous bargain. Dr Raw seems to consider herself a socialist rather than a liberal, but someone describing themselves as an “anti-fascist” to call for the prosecution of a journalist seems an uncomfortable nod in the direction of, for want of a better word, fascism.
S.127 Communications Act 2003
The final criminal option that Dr Raw’s team is investigating is a prosecution under S.127 of the Communications Act 2003.
Subsection (1) provides:
“(1) A person is guilty of an offence if he –
(a) Sends by means of a public 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.”
This section has been used successfully to prosecute people for posting “grossly offensive” material online. Examples include the comedian who taught his pug to give a Nazi salute when he said “Gas the Jews,” and posted it doing so on You Tube, and the man who posted a video of the burning of a cardboard model of the Grenfell Tower. The first was convicted (albeit in Scotland, but Scottish law on this offence is identical to English), the second, after various shenanigans, eventually pleaded guilty and received a 10 week suspended prison sentence.
The use of S.127 in such cases has in recent years expanded far beyond its original purpose (in a predecessor to the 2003 Act) of criminalising obscene calls to telephone operators. Perhaps it has expanded too far: certainly those drafting the section would never have dreamt that it could be used to prosecute a newspaper columnist.
It provides the only remotely plausible route to prosecuting Mr Clarkson, or the editor of The Sun. Even so, the prospects of actually convicting Mr Clarkson remain extremely low.
Whether publication in a national newspaper’s online edition amounts to “sending a message by means of a public communications network”; and whether (if it does) Mr Clarkson (as opposed to The Sun, or its editor) can be said to have sent or “caused such a message to be sent” are interesting technical questions which might tempt Dr Raw’s legal team to charge a couple of thousand pounds before answering with confidence. (In my much cheaper and less well-researched view a newspaper’s website is probably not a “public communications network,” but both Twitter and Facebook unquestionably are; so whilst the writing and publishing of the column in The Sun would not be within the ambit of the offence, the posting of it on social media could be).
Ultimately though, even if this technical hurdle is overcome, the wished-for prosecution would come up against similar problems to any other prosecution. Freedom of speech means the freedom to offend Dr Raw and her supporters. The law does not exist to protect the sensitivities of newspaper readers. The fact that the column “was in bad taste, even shockingly bad taste” is not enough: DPP v Bussetti  EWHC 2140 (Admin). Being “offensive” is not enough. It must be “grossly offensive” before the law will consider it criminal. That remains an exceptionally high bar.
And there is yet another problem.
The CPS will not instigate a prosecution unless there has been a police investigation, and the Police, through the Met Commissioner Sir Mark Rowley, have very clearly said that they have no interest in investigating Mr Clarkson.
Any prosecution will have to be brought privately (and presumably paid for by yet more crowd-funding, unless the mysterious Sandra Copeland is willing to bear the whole cost herself). If the team of lawyers need £15,000 to advise on whether such a prosecution is possible, they will need tens of thousands more actually to undertake a prosecution.
Dr Raw will also have to make provision for paying the costs of Mr Clarkson and The Sun should her attempted prosecution fail. It will be no good her saying “the crowd-funding has dried up I can’t pay.” She who brings a private prosecution bears the personal risk of paying for it.
When Marcus Ball’s doomed attempt to prosecute Boris Johnson for misconduct in public office crashed and burned he was left with personal debts of over £200,000 – despite having previously raised hundreds of thousands of pounds in crowd funding. It is sometimes said of architects that no-one is so rich that an architect cannot reduce them to poverty: the same can be said about teams of lawyers, and from what little we know of them it can certainly be said about Dr Raw’s team of lawyers.
The Crown Prosecution Service
It is not particularly difficult to start a prosecution. Once begun, however, even if it is not struck out by the Court at an early stage, the Crown Prosecution Service has the power under S.6 of the Prosecution of Offences Act 1985 to take it over: the most common reason for doing so is to discontinue it. In 2019, for example, of the 49 private prosecutions referred to it, the CPS took over 32 and of these it discontinued all but 3.
The CPS has guidelines on the prosecution of online offences. The guidelines emphasise the need to have the Article 10 right to freedom of expression in mind when deciding whether to bring – or to continue – a prosecution. In the vanishingly improbable event that Dr Raw were to overcome every other hurdle, any prosecution of Mr Clarkson or The Sun could – and almost certainly would – be taken over and discontinued by the Crown Prosecution Service.
Money not spent
Any competent lawyer will be bound to advise Dr Raw that she would be exceptionally unwise to bring a case against Mr Clarkson. The chances of success are tiny, the risks are huge.
It should not cost them £15,000 to tell her that.
So after receiving that advice there should be some money left over. If that happens, Dr Raw says that it will be donated to an (unnamed) domestic violence charity.
Of course there are many very deserving charities helping the victims of domestic violence. Donate to such charities by all means. But if you have any money to spare, why give any of it to Dr Raw’s lawyers first? I am all for giving money to criminal lawyers, but there is no reason to believe that these ones are particularly deserving of your generosity. Why not simply choose your own charity, or your own firm of criminal lawyers, or consider giving it to the Ukrainian armed forces? Whatever you do, even if you are as rich and generous as Sandra Copeland, don’t waste your money by giving it to Dr Raw’s crowd-funder.
I’ve been told by a number of people including the well-respected Liverpool solicitors Levins, and James Olivera-Agnew, assistant secretary to the Criminal Bar Association, that I’m wrong to say something on The Sun’s online edition would not be on a “public communications network.” I can see, now it has been pointed out to me that whether or not The Sun itself is such a network (which it may well be), in order to be placed on the website it almost certainly has to be sent via one. I gratefully accept yhe correction, though it makes little difference to my overall conclusion.