On 16 December, former Top Gear presenter Jeremy Clarkson wrote an article for The Sun taking aim at Meghan Markle after the final episodes of her Netflix documentary attacking the Royal Family had been released. It ended up generating the most complaints for an article in IPSO’s (the press regulator) history, with 17,500 registered on 20 December. Clarkson had said that he hated Markle on a “cellular level” and that he was dreaming of the day when “she is made to parade naked through the streets of every town in Britain whilst the crowds chant, ‘Shame!’ and throw lumps of excrement at her”. The excrement passage was a reference to a scene in the popular HBO series Game of Thrones — later turned into a widely-used gif. It was simultaneously mocking Markle and (since it was clearly intended to be hyperbolic) the author’s knee-jerk reaction against her. Even so, it was interpreted widely in the most ungenerous light, and Clarkson requested that the article should be taken down. He promised that he would be “more careful in the future”. 

This forced contrition was insufficient for some, however — many of whom have ideologically objected to Clarkson and The Sun for years. Noting the more extreme calls to prosecute Clarkson on social media, Dr Louise Raw, who calls herself an “Activist, Antifascist, historian”, elected to start a crowdfund on 20 December, which she hoped would reach the target of £15,000. According to Raw, the article was “clearly hate speech”. She was looking to bring legal action against Clarkson “and/or The Sun and its editor Victoria Newton”. One donor sent £3,500 to the GoFundMe page; another sent £4,000. Raw did not detail precisely why the costs for preliminary advice would be so great. 

The facts regarding Clarkson and The Sun do not satisfy this threshold

I have previously written in The Critic on the subject of flawed legal crowdfunding, specifically about Jolyon Maugham’s Good Law Project. Raw’s is far worse than the Good Law Project’s. Initially, Raw did not even identify the action that she proposed to bring, only baldly stating that the article was hate speech. Indeed, at first she said that she was not going to disclose her proposed action because of “strategy”. Donors, therefore, were giving money to an entirely speculative case. Raw indicated on 21 December that “tentative legal grounds” being explored were under the Protection from Harassment Act 1997 claim (requesting that she be contacted by her followers who felt as if they were being harassed), and the Public Order Act 1986 and the Communications Act 2003. She later updated the page to say that there was “legal progress being made” and that “on the civil side” she was considering bringing a claim for “racial harassment” under the Protection from Harassment Act 1997, malicious communications and racism in the provision of a service. 

It is unlikely that any advice will ultimately recommend either a private prosecution or a civil claim as a sensible course of action. First, section 4A of the Public Order Act 1986 does not provide a clear route for a prosecution against Clarkson or The Sun. Clarkson and The Sun would need to act with the “intent to cause harassment, alarm or distress”. Further, there would need to be proof that the words or conduct had caused actual alarm or distress, and the words or behaviour should be sufficient to form real, and not trivial, harassment. A charge would be appropriate, according to CPS Guidance, where there is sustained abuse, targeting of a lone victim or significant effect on the victim. The facts regarding Clarkson and The Sun do not satisfy this threshold. 

The right to freedom of expression pursuant to article 10 of the European Convention on Human Rights should also be taken into account. In Campaign Against Antisemitism v the Department for Public Prosecutions, the DPP had taken over and discontinued a section 5 Public Order Act private prosecution of speakers at an anti-Israel rally. The claimant brought a judicial review against the DPP. The application was dismissed, in part, on the grounds that the DPP was entitled to conclude that the words spoken at the rally should be approached in the context of the right to freedom of expression and that an interference should be justified. With regards to the Clarkson article, published online, and not spoken in public, the argument that article 10 should prevent a prosecution may be made even more strongly. 

Campaign Against Antisemitism v the Department for Public Prosecutions also highlights the likelihood of the DPP interfering with a private prosecution of Clarkson and The Sun. The DPP is entitled under section 23(3) of the Prosecution of Offences Act 1985 to discontinue prosecutions. The policy of the DPP is that prosecutions will be taken over if neither stage of the full code test is satisfied, namely, the evidential stage and the public interest stage. No small amount of deference will be given to the DPP in exercising his statutory powers which are to be made in the public interest and taken with an understanding of the way in which evidence will be received at trial. It is, therefore, not improbable that an attempt at a prosecution by Dr Louise Raw will be halted.

The law is not a tool for punishing political opponents

Section 127 of the Communications Act 2003 is an easier offence to satisfy overall since it is notoriously broad. However, Scottow v CPS demonstrates some of its limits. The posting of annoying tweets would not constitute sending a message for the purpose of causing annoyance, inconvenience or needless anxiety. The kind of behaviour covered would be silent phone calls and similar behaviour. Article 10 would also be relevant to understanding the limits of section 127, as was observed by the then Mr Justice Warby, who said that article 10 made it “even clearer” that annoying tweets would not form part of conduct prohibited by section 127. Likewise, in Chambers v DPP the conviction of the appellant for suggesting that he would blow up Doncaster Airport on Twitter was quashed. If the communication could be brushed off as empty banter or a mere joke, it would not have the requisite menacing character. With regards to the “grossly offensive” part of section 127, communications which are “no more than offensive” are not covered either. “It is not the task of the criminal law,” said Lord Justice Laws in Karsten v Wood Green Court, “to censor offensive utterances.” It should also be observed that section 127 falls under similar issues to section 4A of the Public Order Act in respect of the prospects of the DPP taking over and discontinuing any prosecution.

With regards to the civil claim, harassment is equally unlikely to get off the ground. First, section 1 of the Protection from Harassment Act 1997 requires a course of conduct, not an individual column. Second, in respect of freedom of expression, the courts will give latitude to the media in publishing material, and only rare and exceptional cases will amount to harassment. Additionally, of course, the words must be directed at the claimant. That means that Markle herself should be making a claim, not those soliciting donations on GoFundMe. 

Racism in the provision of a service is even more outlandish as a claim. The Equality Act 2010 prohibits service providers from discriminating against, harassing or victimising users in respect of relevant protected characteristics. Since there is no explicit or implicit reference to race in Clarkson’s article, and since the perception of the complainant is not determinative, it is difficult to see how such a claim could succeed regarding direct discrimination, harassment or victimisation. Indirect discrimination could not apply, either, as it is not clear that there is an ascertainable disadvantage which a group sharing a protected characteristic would face. 

Finally, malicious communications cannot form a civil claim as Dr Louise Raw suggests. Section 1 of the Malicious Communications Act 1988 creates an offence of sending communications with the intent to cause distress or anxiety. The clear issue with bringing this against Clarkson is that the defendant should intend to cause distress and anxiety. According to the then Lord Justice Dyson in Connolly, the “indecent or grossly offensive” part of the offence should be given a “heightened meaning” so that a conviction would be compliant with article 10. This provides a significant hurdle for any prosecution. 

As objectionable as many may have found it, Clarkson’s article did not likely breach the criminal law or give rise to any grounds for civil action. It is a mistake to attempt to bring a case in the belief that the law can tackle any perceived wrong or to use it as a tool through which to punish one’s political opponents. It demonstrates an increasingly hostile view towards freedom of expression. Following complaints about Clarkson, the Commissioner of the Metropolitan Police, Mark Rowley, rightly said that he was “not there to police people’s ethics”. Indeed, the courts look on this with disfavour. As barrister and blogger Matthew Scott pointed out, even with the considerable amount of money which was initially requested by Raw, any eventual proceedings would require much more in the way of funding. Failure will likely result in a significant costs order. Marcus Ball discovered as much after he failed to bring a misconduct in public office prosecution against Boris Johnson.

In sum, Dr Louise Raw’s crowdfund seems particularly hopeless regarding prospects of success, and pursuit of any claim is likely to end up being costly. Raw has not reacted to critics of her crowdfund with much grace, calling them “bad faith actors” and “far right”. The legal reasons as to why she is wrong, however, are clear. Prospective donors should be wary of giving money to a cause based on such slim grounds.