Full case report
R v Sheppard & Whittle
Reference  EWCA Crim 65
Court Court of Appeal (Criminal Division)
Judge Scott Baker LJ, Penry-Davey J, Cranston J
Date of Judgment 29 Jan 2010
Public order offences – Racially inflammatory material – Racial hatred – Internet – Publication to a section of the public – Web server outside jurisdiction – Public Order Act 1986
The appellants, S and W, appealed against convictions for possessing, publishing and distributing racially inflammatory material contrary to the Public Order Act 1986. W had composed material and S had edited it and uploaded it onto a website. The website was hosted by a server in California, but was accessible in the UK. Some of the material had also been distributed in print form in the UK. The judge had held that the UK courts had jurisdiction to try the case as a substantial measure of their activities had taken place in the UK.
The appellants appealed on the grounds that:
(a) the case could only be tried in the jurisdiction where the web server was located;
(b) material on the internet could not fall with the definition of “written material” under s.29; and
(c) there were insufficient publishees to constitute a section of the public as required by s.19(3).
Whether the appeals against conviction should be granted on any of grounds (a) to (c).
Dismissing the appeal:
(a) The ‘substantial measure’ test accorded with the purpose of the relevant provisions of the Public Order Act and also reflected the practicalities of the instant case. Almost everything in this case related to the UK, which was where the material was created, edited, uploaded and controlled.The content of the material was aimed primarily at the British public. The only foreign element was the location of the website server in California, which was merely one stage in the transmission of the material.
(b) s.29 states that “written material” includes “any sign or other visible representation”. Such words were sufficiently wide to include articles in electronic form.
(c) The submission that there were insufficient publishees was misconceived and involved an irrelevant comparison to the law of libel. All the Crown has to show was that there was publication in that the material was generally accessible, or available to, placed before, or offered to the public.
Confirmation from the Court of Appeal that the criminal law of England and Wales can apply to material published online, even if the website server is located in another country. The test the courts will apply is whether a ‘substantial measure’ of the activities took place within the jurisdiction. However, whether authorities of this kind will prove useful to future libel claimants remains to be seen. The judges in this case warned against applying the principles of the civil law tort of libel directly to the criminal law realm, and it is to be presumed, vice versa.