Davison, R. v

In sentencing for publishing material intended to stir up racial hatred, the court must assess the nature and intended effect of the material, the need for deterrence, the actual or potential audience, and the consequences for those who saw it. A private social-media account and prompt deletion may reduce dissemination, but they do not prevent material being shared beyond the account’s followers.

Threatening language, particularly when reinforced by an image suggesting possession of a firearm, is a serious aggravating feature. An appellate court will not interfere merely because a sentence is at the upper end of the available range. It must be manifestly excessive.

The appellant was convicted at Cardiff Crown Court of three offences of publishing material with intent to stir up racial hatred. He had posted grossly offensive and threatening anti-Muslim material on a private Instagram account, accompanied by a photograph of himself holding a large gun. The material was transmitted beyond his followers and caused the recipient who reported it to fear that he might be violent.

The trial judge imposed concurrent sentences of four years’ imprisonment. The appellant appealed against sentence, contending that the account was private, the posts were quickly deleted, and the sentence was manifestly excessive. The central issue was whether the judge had placed undue weight on the photograph and imposed an excessive total sentence.

1. Appeal dismissed. The concurrent total sentence of four years’ imprisonment was at the upper end of the appropriate range but was not manifestly excessive.

2. The court applied the four sentencing considerations identified in R v Bitton [2019] EWCA Crim 1372: the nature of the publication and the offender’s intent; the need to deter others; the number of persons who saw the material; and the consequences for them.

3. The publications were vile, grossly offensive and threatening. References to decapitation were implicitly threatening, and the intention to stir up racial and religious hatred was compounded by the image of the appellant holding a gun with his finger on the trigger.

4. The protected nature of the Instagram account and the limited number of followers did not preclude dissemination. The number of people who saw the material was unknown, but it had in fact reached a person who was not a follower. The posts also had potential for wider circulation through social media.

5. The court accepted that the posts were removed after a relatively short period and that evidence of individual consequences was limited. However, the reporting recipient was scared and fearful. The need to deter publication of material of this nature, together with the firearm image as a significant aggravating feature, justified the sentence.

6. Bitton was a useful sentencing authority, but each case depended on its own factual matrix. The trial judge had heard the evidence and was well placed to assess the appellant’s intent.

• Court of Appeal (Criminal Division): Appeal against sentence dismissed: [2020] EWCA Crim 665.

• Crown Court at Cardiff: The appellant was convicted on 28 August 2019 of three offences of publishing material with intent to stir up racial hatred and sentenced to concurrent terms of four years’ imprisonment.