He also made crude comments on Twitter about the death of James Bulger which deeply distressed his (Bulger’s) mother. Such reckless and distasteful tweeting, needless to say, should be denounced. But why did Robert Ambridge escape prosecution under the recently published CPS Guidelines on Prosecuting cases involving communications sent via social media?
Ambridge’s controversial tweets in question clearly did not constitute either 1) a threat of violence to a person or damage to property or 2) a breach of a court order, both of which, according to the guidelines, should be “prosecuted robustly“. Other communications which should also be prosecuted robustly are those which specifically target an individual or individuals and which may amount to harassment or stalking within the meaning of the Protection from Harassment Act 1997.
Given that Ambridge did not send the messages directly to any of the victims, it is difficult to argue that he targeted them specifically; his principal intention appears to have been to amuse (using very dark humour) rather than upset the subjects of his tweets. Had the latter been his main intention, Ambridge would have been undoubtedly more direct in causing offence; he in fact alludes to this when attempting to justify his comments by stating that “I didn’t target anyone. I didn’t send an email”. Moreover, his tweets would have been unlikely to form the requisite sequence of events to establish an offence under the Protection from Harassment Act 1997.
Accordingly, Ambridge’s communications fell to be considered by the CPS within the miscellaneous category of offensive communications: i.e. those which may be interpreted as grossly offensive, indecent, obscene or false. The difficulty for prosecutors in considering whether a communication satisfies these criteria is that the CPS guidelines do not help to clarify murky case law on this subject. For instance, there is no definition in the CPS guidelines of what communications would qualify as “more than” offensive and therefore a prosecutor is largely left to form his own subjective assessment. Ambridge’s tweets were unquestionably insensitive but the Lord Chief Justice was at pains to stress in Chambers v DPP ([2012] EWHC 2157 (Admin)) that
“rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level”. [28]
A CPS spokesperson in this investigation emphasised that this was a “finely balanced decision” but that the messages were not considered “so grossly offensive as to meet the high threshold required to justify bringing criminal proceedings.” Had this threshold been reached, the CPS would then have needed to decide whether a prosecution was both necessary and proportionate. In so doing, a prosecutor should have had regard to, inter alia, Ambridge’s lack of contrition, expressed clearly in his statement “If they don’t like it, they should turn it off” , as well as evidence that his Twitter account was apparently temporarily disabled following complaints about the tweets which now appear to have been completely removed.
Although Ambridge has not been formally prosecuted for his comments, he has been punished in two other ways. Firstly, the shield of anonymity afforded to him by his Twitter alias has been seized from his grasp, with those harmed by his Hillsborough comments exposing his true identity online. As has recently been shown by Mary Beard’s decision to reveal the name of one of the internet trolls who plagued her on Twitter, exposing an individual’s identity can often be the best tactic to moderate his/her behaviour. Ambridge should choose his enemies more carefully in future.
Secondly, Ambridge has also reportedly received daily death threats as a result of his tweets which have caused him to take flight from his home in Braintree. Bearing in mind his ‘leave me alone’ libertarian political beliefs, such a move – if indeed it is true – must have been particularly galling for Old Holborn. His desire, however, as expressed on what appears to be his website,“to live in a society where I may speak freely and…still have the right to upset a few grief city victim whores who wish to impose their version of the written word upon the rest of us” remains unabated.
Despite the fact that Ambridge’s tweets in this instance were not sufficiently offensive to fall foul of criminal laws, he should not feel that he will remain immune from prosecution for similar tweets in the future. The ambiguous nature of the guidelines and case law leaves open the opportunity for one prosecutor to construe a particular tweet as grossly offensive where another might not. Old Holborn, you have been warned.
Rhory Robertson is a Partner and Tom Double a Trainee Solicitor working in the Collyer Bristow Cyber Investigations Unit.