Burns, R. v [2017] EWCA Crim 1466

[2017] EWCA Crim 1466Case No 2017/00311/C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 7 th September 2017
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE PHILLIPS
and
MR JUSTICE GARNHAM
_________________
- v -
Between
LAWRENCE BURNS____________________Computer Aided Transcription byWordwave International Ltd trading as DTI165 Fleet Street, London EC4A 2DYTelephone No: 020 7404 1400; Fax No 020 7404 1424(Official Shorthand Writers to the Court)____________________Mr A Davies appeared for ApplicantMr W Weekes appeared for Crown______________________

J U D G M E N T(Approved)

[1]On 15th December 2016, in the Crown Court at Cambridge, before His Honour Judge Cooper and a jury, the applicant (now aged 23) was convicted of stirring up racial hatred by publishing written material, contrary to section 19(1) of the Public Order Act 1986 (count 1); and of stirring up racial hatred through words or behaviour, contrary to section 18(1) of the same Act (count 2). On 10th March 2017, the applicant was sentenced to three years' imprisonment on the first count and to a consecutive term of one year's imprisonment on the second count. The total custodial sentence was, therefore, four years' imprisonment. A Criminal Behaviour Order was made for a period of six years.[2]The applicant renews his applications for an extension of time, and for leave to appeal against conviction, following refusal by the single judge on the papers. The applicant's applications for leave to appeal against sentence and for an extension of time for so doing have been referred to the full court by the Registrar.[3]The relevant facts are as follows. The applicant was a member of National Action, a far-right white supremacist group, and was an avowed racist.[4]Between August and September 2014, when he was aged 20, he posted a series of virulently racist updates, comments and links to a Facebook account he operated under an alias. Those posts gave rise to count 1. The comments contained many vile and deeply offensive comments directed at, in particular, the Jewish and Afro-Caribbean communities. The gist of the messages was to promote militant action against them, with the aim that they should be eliminated, with a view to protecting what the applicant described as "an advanced warrior race consisting of white men and women".[5]If there is any doubt about the appellant's state of mind and intention, it was dispelled by material found on electronic media belonging to him, including e-books, expressing extreme anti-sematic views and extolling Adolf Hitler as "the ultimate being".[6]The Facebook account had 98 "friends", some (but not all) of whom appeared to be located overseas. However, the account was not locked and so could be readily accessed by any user of the internet. It is not in dispute that the applicant posted the relevant material whilst in this jurisdiction.[7]Count 2 related to a speech made by the applicant on 23rd May 2015, whilst he was aged 21 and whilst he was on bail for the offence charged in the first count. During a demonstration staged outside the United States Embassy, the appellant spoke, using highly inflammatory language directed towards non-white immigrants and Jews. He alleged that the former were "rapists, robbers and murderers" and that the latter were "parasites and bankers" who wanted to create a "mongrelised" race. The speech was filmed. The appellant subsequently indicated in an online post that he knew that the video was to be posted on YouTube, which indeed it was.[8]The applicant's defence at trial was that his postings on Facebook were intended to be "private banter" and that his speech, whilst not banter, was not intended to stir up racial hatred and was unlikely to do so.[9]The jury, not surprisingly, rejected those contentions in finding him guilty on both counts.

The renewed application for leave to appeal against conviction

[10]The first ground of appeal relates to the judge's ruling that, for the purposes of the offences under sections 18 and 19 of the 1986 Act, it was not necessary that the intended or likely stirring of racial hatred be in the jurisdiction of England and Wales. Mr Davies, who has appeared today for the applicant, relies upon the general principle that offences are not intended to be extra-territorial in effect; but he accepts, following the Court of Appeal decision in R v Sheppard and Whittle [2010] EWCA Crim 65, [2010] 1 WLR 2779, that it is sufficient for the purposes of these offences in relation to publication that the relevant actions of the defendant in publishing took place in this jurisdiction, even if the relevant website was hosted overseas. His contention before the learned judge, and before us today, is that it is necessary that the racial hatred in question is intended or is likely to be stirred up in this jurisdiction.[11]In a careful ruling, the learned judge rejected that contention. We entirely agree with his decision. We see no merit in the argument. The question is: what was the intention or likelihood of the person making the publication or using the relevant words or behaviour? If that person was in the jurisdiction at the time when he carried out such actions, then there is no difficulty with territoriality. The fact that the hatred in question may be stirred up overseas does not, in our judgment, give rise to any arguable point. We reject that argument.[12]The second ground in relation to conviction arises from a jury note which was in the following terms:
"Should our deliberations on the speech … be constrained only to the [applicant's] behaviour and speech or do we consider the dissemination of the whole content of the video on YouTube as specific intent or likelihood of stirring up of racial hatred?"
[13]The learned judge gave a careful direction in relation to both "intention" and "likelihood". He directed the jury that, in considering what was the applicant's intention or what was otherwise the relevant likelihood, they were entitled to take into account all matters or circumstances which obtained at the time of the speech.[14]Mr Davies has submitted to us today that to allow the jury to consider the subsequent posting on YouTube was impermissible because it permitted the taking into account of subsequent matters which were not relevant or admissible in considering the applicant's intention or otherwise the likelihood of stirring up racial hatred.[15]Again, we see no merit in that contention. The question of what was a defendant's intention, or otherwise the likelihood of a matter occurring, must be judged at the relevant time; but there is no reason why it must be considered only in relation to matters which had occurred at that time. There is no reason why subsequent events cannot be considered in forming a view as to what was the intention or likelihood at that time. The judge's direction was entirely conventional and correct. There is no merit in that argument. The renewed applications in relation to conviction are, therefore, refused.

The applications in relation to sentence

[16]The judge correctly set out the fact that, whilst freedom of speech is a fundamental freedom of our society, the applicant's conduct in this case went far beyond what was regarded as acceptable. It was designed publicly to promote racial hatred, to mobilise the applicant's listeners, and to encourage them to move from ideas into action.[17]We entirely agree with the learned judge that a custodial sentence was necessary – and indeed one with a deterrent effect. The learned judge approached sentence on the basis that, although the applicant had some previous convictions, none was relevant to these matters. But he took the view that consecutive sentences were appropriate. That is a sentiment with which we agree. He indicated that he regarded a sentence of three years' imprisonment as appropriate on the first count and that he would have imposed a consecutive sentence of two years' imprisonment on the second count, but he reduced the second sentence to one year's imprisonment to take account of the principle of totality. That gave rise to a total sentence of four years' imprisonment.[18]In our judgment, however, the judge's approach did not take sufficient account of the applicant's young age at the relevant time (20 at the time of the publications on Facebook, and 21 at the time of the speech). It is also the case that evidence was adduced that the applicant is of low intellect and has a poor educational background. He was undoubtedly immature at the time of these offences.[19]We have been referred to the decision in Sheppard and Whittle, to which we have already referred, in which Sheppard, who was sentenced for 16 offences and who had previously been convicted of two similar offences for which he had received a sentence of nine months' imprisonment, received a sentence of three years' imprisonment; whereas Whittle, who was convicted of five counts, received a sentence of 18 months' imprisonment.[20]We were also referred to R v Bonehill-Paine [2016] EWCA Crim 980, in which the Court of Appeal dismissed an appeal against a total sentence of three years and four months' imprisonment in respect of one conviction for an offence under section 19 of the Public Order Act 1986, although it was accepted that the appellant in that case had previous convictions for similar offences.[21]In our judgment, particularly given the applicant's young age, and taking into account the cases to which we have been referred, we consider that the sentence in this case was manifestly excessive. Accordingly, we grant the extension of time sought and give leave to appeal against sentence. We will quash the sentence of three years' imprisonment on count 1 and substitute for it a sentence of 18 months' imprisonment. We will leave undisturbed the sentence on count 2 of one year's imprisonment. The resulting sentence in total is one of two years and six months' imprisonment. LORD JUSTICE DAVIS: The appeal is allowed to the extent indicated. _________________________________

Cited in 1 later judgment