Sheppard & Anor, R v

English criminal courts may try an internet-publication offence where a substantial measure of the activities constituting it occurred in England and Wales, unless international comity requires another country to deal with the conduct. A foreign web server is merely a transmission stage where the material is generated, controlled, uploaded and directed from this jurisdiction.

Under the Public Order Act 1986, electronically stored articles are written material. Publication occurs when material is made generally accessible or offered to the public. The prosecution need not prove that a particular member of the public read it.

The appellants were convicted in the Crown Court at Leeds of offences concerning racially inflammatory material. The internet counts alleged publication of articles through the website heretical.com. Whittle wrote material which Sheppard edited and uploaded from England and Wales. The website was hosted on a server in California but could be accessed in England and Wales.

They appealed their convictions on the internet counts, contending that the English courts lacked jurisdiction, that there was no publication without proof of a publishee, and that electronic content was not written material. They also challenged sentence. Sheppard separately sought leave, out of time, to appeal a forfeiture order over office and computer equipment.

1. The appeals against conviction were dismissed. The applicable jurisdictional test was whether a substantial measure of the activities constituting the crime occurred in England. Applying R v Smith (Wallace Duncan) (No.4) [2004] EWCA Crim 631, that test was plainly met. The appellants generated, edited, selected, controlled and uploaded the material from England and Wales, and aimed it principally at the British public. The Californian server was only a stage in transmission. Section 42 of the Public Order Act 1986 concerned the Act’s territorial extent and did not restrict the ordinary criminal jurisdiction of the English courts.

2. The court construed section 29 broadly. The statutory definition of written material, which includes any sign or other visible representation, covered electronic articles and electronically stored data displayed on a computer screen. It did not require material to be permanently visible in a physical form.

3. For section 19, publication meant making the material generally accessible, available or offered to the public or a section of it. Proof that a particular person had read the material was unnecessary. The evidence that a police officer downloaded it was capable of proving public availability. This construction also preserved the separate statutory offences of display, publication, distribution and possession.

4. Leave to appeal sentence was granted and the sentence appeals were allowed in part. The sentencing judge had correctly assessed the seriousness, social harm and need for deterrence. However, despite evidence of substantial website traffic, there was no evidence of the number of people who viewed the material or its consequences. Sheppard’s total sentence was reduced from four years and ten months to three years and ten months. Whittle’s total sentence was reduced from two years and four months to one year and ten months. Credit for 23 days on remand was given in each case.

5. Sheppard’s forfeiture appeal failed. The judge was entitled under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 to find that the computers had been used, and that the office equipment was intended to be used, to commit or facilitate offences. The judge had properly considered the statutory financial consequences. An extension of time and leave to appeal the forfeiture order were refused.

• Court of Appeal (Criminal Division). In [2010] EWCA Crim 65, the court dismissed the conviction appeals, reduced both appellants’ sentences, and refused Sheppard leave to appeal the forfeiture order.

• Crown Court at Leeds (HHJ Grant). The appellants were convicted of offences concerning racially inflammatory material. They were sentenced on 10 July 2009, and a forfeiture order was made against Sheppard under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000.