Burns, R. v

For offences under sections 18 and 19 of the Public Order Act 1986, territoriality is satisfied where the defendant publishes material or uses words or behaviour within England and Wales. It is immaterial that the racial hatred intended or likely to be stirred may arise overseas.

Intention and likelihood must be assessed at the time of the conduct. Subsequent events may nevertheless be considered as evidence from which the jury may infer the defendant’s intention or the likelihood existing at that time.

In sentencing, sufficient weight must be given to a young offender’s age, immaturity, intellectual ability and educational background. A sentence which fails to do so may be manifestly excessive.

The applicant was convicted at Cambridge Crown Court of stirring up racial hatred by publishing written material, contrary to section 19(1) of the Public Order Act 1986, and by words or behaviour, contrary to section 18(1). He had posted racist material on an accessible Facebook account and later made an inflammatory public speech which was filmed and uploaded to YouTube.

He received consecutive sentences of three years and one year, totalling four years’ imprisonment, together with a six-year Criminal Behaviour Order. He renewed applications for leave to appeal against conviction after refusal by a single judge, and sought leave to appeal against sentence.

The conviction issues were whether the intended or likely hatred had to be stirred up in England and Wales, and whether later YouTube publication could be considered when deciding intention or likelihood. The sentencing issue was whether the total sentence was manifestly excessive.

1. The court refused the renewed applications for leave to appeal against conviction. It granted an extension of time and leave to appeal against sentence, allowed the sentence appeal, and reduced the total sentence from four years to two years and six months’ imprisonment.

2. For the offences under sections 18 and 19 of the Public Order Act 1986, the relevant territorial connection was the applicant’s conduct in publishing the material or using the words or behaviour. As that conduct occurred in England and Wales, there was no territoriality objection. It did not matter that the racial hatred which he intended, or which was likely, to be stirred might be stirred abroad. The court applied the territorial approach accepted in R v Sheppard and Whittle [2010] EWCA Crim 65.

3. The jury had correctly been directed that intention and likelihood were to be judged at the time of the speech. The direction permissibly allowed the jury to consider all circumstances bearing on those matters, including subsequent YouTube publication. Subsequent events could provide evidence from which the jury could determine the intention or likelihood existing at the relevant time.

4. A deterrent custodial sentence was necessary because the conduct publicly promoted racial hatred and encouraged action. Consecutive sentences were appropriate. However, the sentencing judge had not sufficiently accounted for the applicant’s age of 20 and 21 when offending, his low intellect, poor educational background and immaturity. In the light of those matters and the comparable sentences in R v Sheppard and Whittle and R v Bonehill-Paine [2016] EWCA Crim 980, the four-year total was manifestly excessive.

5. The three-year sentence on count 1 was quashed and replaced with 18 months’ imprisonment. The consecutive one-year sentence on count 2 remained undisturbed, producing a total of two years and six months’ imprisonment.

• Court of Appeal (Criminal Division) — renewed applications for leave to appeal against conviction were refused. Leave to appeal against sentence was granted, the appeal against sentence was allowed, and the total sentence was reduced to two years and six months’ imprisonment.

• Court of Appeal (Criminal Division), single judge — refused leave to appeal against conviction on the papers. The Registrar referred the sentence applications to the full court.

• Crown Court at Cambridge — on 15 December 2016, convicted the applicant of offences contrary to sections 19(1) and 18(1) of the Public Order Act 1986. On 10 March 2017, imposed consecutive sentences totalling four years’ imprisonment.