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Ogarra Cohen Cramer

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Publishing Hate Material – Tough Sentences Can Follow

18th June 2020

The recent case of Jay Davison acts as a stark reminder of the consequences that can flow if hate material is published.

Davison was convicted of three offences of publishing material with intent to stir up racial hatred, for which he was subsequently sentenced to a period of four years’ imprisonment to run concurrently on each count.

What did he publish?

Davison published written material on Instagram, including an image of himself bare-chested, holding a long-barrelled musket-type gun pointing upwards. His finger was on the trigger. The photograph featured alongside posts: “F*&^ Allah”, “scum c*&$” and “stand up” (count 1); “Ever seen a white cut a head off… no cos there f*&^%$£ scum heil, heil, heil fuck Allah C*&^” (count 4) and “When has an arian cut another man’s head off” alongside the comments “scum c*&^” and “f*&^ Muslims” (count 5). [we have altered the words as it is not necessary to reproduce them precisely to convey the essence of the messages].

His Instagram account had 394 followers, and it was set to “Private”.

In interview, he accepted posing for and posting the picture on his Instagram account. Davison claimed not to have racist views. He said that the gun was an ornament which was on the wall in a friend’s house and that the incident had escalated into something silly, which he regretted. He said the language was disgusting, he was drunk, and they were not his beliefs. Davison would not provide the name of the friend to whom the gun belonged, nor would he tell the police where the gun could be found.

What did the Judge say?

The Judge considered the nature of the publications and the intention of the appellant. She found that his intent was to stir up racial and religious hatred. Identified as very significant was the photograph which the appellant posted with the comments. The Judge observed that the intention was that he would appear as someone in possession of a working firearm which would be believed by others, with everything that implied. The Judge did not accept Davison’s evidence that he was disgusted by the language in the posts nor his claim that he did not know what some of his remarks meant. The Judge accepted that the posts had been put on a protected account which in theory meant that its distribution was limited to a few hundred people. However, there was nothing to prevent the post being disseminated to others who are not part of the protected group, which is what occurred in this case.

In sentencing Davison the Judge took account of the authority of R v Bitton [2019] EWCA Crim 1372, in which the appellant pleaded guilty to six offences of publishing written material that was threatening, abusive or insulting with intent to stir up racial hatred and to seven offences of publishing threatening written material with intent to stir up racial hatred. The offences took place over an eight-day period and were posted on Twitter. The words used were described by the court as “vile and deeply offensive”. Death threats were made during the course of messages tweeted. The appellant’s Twitter account had some 724 followers. The words were published in the run up to the Brexit vote; they expressed anti-immigration sentiments in offensive and inappropriate terms. On appeal, the court held that the offending would have merited a sentence of four years. Maximum credit was given for the appellant’s pleas which resulted in the sentence of two years and eight months.

In sentencing Davison, the Judge identified as a significantly aggravating factor the fact that he posted a photograph of himself, half-naked and in possession of a large firearm which, in her view, made the case more serious than that of Bitton.

What happened on appeal?

The court identified four relevant factors:

1) The nature of the publication and the intent behind it; In this case, the published material was vile and grossly offensive. It was also threatening, and its content was compounded by the image of the appellant.

2) The need to deter others. In our judgment, there is a clear need for this court to do what it can to inhibit others from publishing material of this nature.

3) The number of people who saw the material. This is unknown. Although the appellant had a limited number of followers on his protected Instagram account, the postings had the potential for further dissemination of the material across social media. It was by this means that Ms Ali had received the post.

4) The consequences of individuals having seen the posts. Ms Ali stated that she felt scared and fearful. Save for this there is no evidence of any particular consequences arising from the appellant’s actions.

The Court of Appeal agreed with the assessment of the Judge that the image of the appellant, bare-chested and holding a large gun, with his finger on the trigger, was a significant aggravating feature of this offending.

The court considered the authority of Bitton, but each case has to be decided upon its factual matrix. These were three convictions following a trial, and the sentence was passed by the trial judge who had a proper opportunity to assess the appellant and his intention.

The court regarded the sentence as being at the upper end of the scale of such sentencing but, given the nature of these offences and the need to deter others, was unable to conclude that the total sentence of four years’ imprisonment is manifestly excessive.

Davison’s appeal was therefore dismissed.

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