The Court of Appeal, on 29 January 2010, confirmed the new ‘substantial measure test’ as the test for determining whether the English courts have jurisdiction in a criminal case with cross-border elements. In R v Sheppard and Whittle [2010] EWCA Crim 65 (on appeal from the Crown Court at Leeds) the Court applied this test to a case involving content infringing the Public Order Act 1986 published on a web site.
Both appellants acted in England: Whittle wrote material which he sent by e-mail to Sheppard who edited the material on his computer and then uploaded it by a remote ftp connection to a server in Torrance, California. The material was available from a web site. The prosecution did not adduce evidence about how frequently this web site had been accessed from England and Wales, but there was evidence from a police officer that the site was accessible and that the material was available for downloading.
The material was racially inflammatory material, denying that the Holocaust happened and being threatening, abusive or insulting towards various racial groups, thereby stirring up racial hatred. The defendants were convicted of various counts under the Public Order Act 1986 for possessing, publishing and distributing racially inflammatory material. After a failed claim for asylum in the USA, the two appellants were returned to England and Sheppard was sentenced to four years and ten months and Whittle to two years and four months, due to the severity of the racial hatred expressed in the publications (the sentences were reduced on appeal).
The main question on appeal was whether the material had been published or distributed to the public in England and Wales in accordance with s 19 of the Public Order Act 1986. The appellants argued that, since the server on which the material was hosted was based in California, publication only takes place in California, where they alleged that the material was lawful. The Court of Appeal referred to the test established in R v Smith (Wallace Duncan) (No.4) [2004] EWCA Crim 631 which states that the court has jurisdiction in England and Wales if a substantial measure of activities constituting the crime took place in England.
Previously, jurisdiction was based on where the gist of the crime had occurred or where the last act was carried out, but the Court of Appeal in R v Smith (Wallace Duncan) moved away from defining a single location of the crime in favour of an approach of weighing all connecting factors linking the crime with the jurisdiction. The Court in that case had decided that it was necessary to evolve the common law in order to deal with changing social and technical circumstances.
In the instant case, the material was written and edited in England and uploaded from there, in the knowledge and the expectation that it should be available to (at least a section of) the public in England and Wales. The web site mentioned postage costs for delivery of hard copies of the material in England. The Court of Appeal held that the substantial measure test was abundantly satisfied. The Court held that the only foreign element was that the server was based in California, but that this was ‘merely a stage in the transmission of the material’.
Furthermore the Court of Appeal also held that the meaning of ‘written material’ in s 19 was clear and covered dissemination of material in electronic format via an internet web site without much further discussion.
Finally the Court also held that there is no need to adduce evidence about how many people have actually accessed and seen the material. The Court of Appeal referred to the case of R v Perrin [2002] EWCA Crim 747, where the Court had said that making (in that case obscene) material available on the Internet is sufficient for the requirement of publication.
The present case is interesting as the Court of Appeal confirmed the applicability of the substantial measure test to crimes prohibiting the publication of illegal content, looking at all the connecting factors, including where the unlawful material was produced, where it was uploaded and where the defendants intended it to be made available. The place where the server hosting the material was located was seen as a minor (or even irrelevant) factor in this assessment. Furthermore the Court interpreted the meaning of ‘publication’ not as actual access of the unlawful material but the mere provision of access.
In this case, clearly, the weight of the connecting factors pointed towards England, so the Court’s decision is not surprising. Perhaps more interesting would be a case scenario where the defendants acted (wrote and edited the unlawful material) in a foreign jurisdiction and then made it available to the public in England. In that case, if the test only counts the connecting factors within the jurisdiction compared to the connecting factors outside the jurisdiction, this would amount to a count of 2:1, meaning that the English courts would have no jurisdiction under the ‘substantial measure’ test interpreted in a literal fashion. However, perhaps the more relevant question in this second scenario would be whether the defendants have targeted their conduct at England, by looking at all the circumstances and context of the web site and the unlawful material offered. The Court of Appeal partly seems to apply a targeting test in this sense; it was relevant where the defendants intended the material to be available and one indicator of this was clearly that the postage referred to sending the material to members of the public in England.
Dr Julia Hörnle is Senior Lecturer in Internet Law at the School of Law, Queen Mary University of London
