Published on Wed Mar 24 13:55:27 GMT 2010
A Lancashire man who became the first to be convicted of inciting racial hatred online is to petition the Supreme Court for leave to appeal against the convictions.
The move by Stephen Whittle, along with Simon Sheppard who was also convicted of the crime, follows the decision of the Court of Appeal Criminal Division to certify three points of law in the case – although it denied permission to appeal, meaning the pair have to petition the Supreme Court directly.
Lawyers for the two men confirmed that they would be filing petitions with the Supreme Court. The case will raise important issues about whether material placed on the internet counts as written material, and whether the courts have jurisdiction in cases involving material posted online from abroad.
Sheppard, 52, and Whittle, 42, were jailed at Leeds Crown Court in July last year after being convicted of Public Order Act charges of publishing and distributing racially inflammatory material and possessing such material with a view to distribution.
Sheppard, 52, of Brook Street, Selby, was convicted of 16 offences and Whittle, 42, of Avenham Lane, Preston, Lancashire, of five. In January the Court of Appeal rejected their appeals against conviction, but reduced Sheppard’s sentence of four years and 10 months by a year and Stephen Whittle’s term of two years and four months by six months.
The Court has now certified three issues in the case as a point of law of general public importance.
These cover whether a document stored in a computer memory and/or displayed on a screen is written material within the meaning of Section 29 of the Public Order Act 1986, the issue of the correct test of jurisdiction for criminal cases involving or arising from the use of the internet, and whether, for the purposes of Section 19 of the Public Order Act 1986, making material generally accessible or available to placing or offering it to the public via the internet counts as publication to the public or a section of the public.
During the appeal in January, Sheppard’s counsel, Adrian Davies, challenged the convictions on the grounds of jurisdiction, the meaning of ‘publication’ and whether material on the internet was ‘written material’ within the meaning of the Act. The articles complained of were posted on a website in California, where there was no doubt that they were ‘entirely lawful and enjoyed the highest degree of constitutional protection under the laws of the United States’, he said. There was also no evidence that anyone in England and Wales, except the police officer – and the Crown did not claim that he was a member of the public under the Act – had read any of them.
The police investigation which led to the pair being jailed started after a complaint about a leaflet called ‘Tales of the Holohoax’, which was pushed through the door of a Blackpool synagogue and traced back to a post office box in Hull registered to Sheppard. Published material found later included images of murdered Jews alongside cartoons and articles ridiculing ethnic groups.
During their first trial in 2008, Sheppard and Whittle skipped bail and fled to California, where they sought asylum claiming they were being persecuted for their right-wing views. The claims failed and they were deported.