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Saturday, October 22, 2011

Facebook Two should appeal to the Supreme Court or ECtHR

Facebook Two should appeal to the Supreme Court or ECtHR

46 Encouraging or assisting offences believing one or more will be committed

(1)A person commits an offence if—

(a)he does an act capable of encouraging or assisting the commission of one or more of a number of offences; and

(b)he believes—

(i)that one or more of those offences will be committed (but has no belief as to which); and

(ii)that his act will encourage or assist the commission of one or more of them.

(2)It is immaterial for the purposes of subsection (1)(b)(ii) whether the person has any belief as to which offence will be encouraged or assisted.

(3)If a person is charged with an offence under subsection (1)—(a)the indictment must specify the offences alleged to be the “number of offences” mentioned in paragraph (a) of that subsection; but(b)nothing in paragraph (a) requires all the offences potentially comprised in that number to be specified.

(4)In relation to an offence under this section, reference in this Part to the offences specified in the indictment is to the offences specified by virtue of subsection (3)(a).

The maximum sentence for the above offence is 10 years imprisonment. Therefore it is a serious offence. However, I believe that a distinction should be drawn between a serious intent to commit the crime and the stupidity displayed by the Facebook Two. Giving 4 years imprisonment for stupidity is in itself a stupid act. If a general election is called between now and before the Facebook Two are released from custody they will be disenfranchised. On this ground perhaps their lawyers should consider another appeal to the UK Supreme Court and failing this to the ECtHR?

The Facebook Two appeals before the Lord Chief Justice, Lord Judge.

III. The Individual Appeals

(a) Incitement by the use of Facebook

Jordan Philip Blackshaw and Perry John Sutcliffe
Jordan Philip Blackshaw – the facts

We shall deal with the cases of these appellants together although their offences were committed entirely independently of each other.
On 16 August 2011 at Chester Crown Court before the Recorder of Chester, His Honour Judge Elgan Edwards, Blackshaw pleaded guilty to committing an offence contrary to section 46 of the Serious Crime Act 2007, encouraging or assisting offences believing that one or more would be committed. The offence or offences which he believed would be committed were riot, burglary and criminal damage. It is important to emphasise that the applicant admitted and was convicted of doing an act capable of encouraging the commission of riot, burglary and criminal damage, and doing so believing that what he did would encourage or assist the commission of one or more of the offences, and that one or more of the offences would in fact be committed. This was no joke. He was sentenced to four years’ imprisonment.
At 10.30 on 8th August 2011 he used Facebook to set up and plan a public event called “Smash down in Northwick Town”. It would start behind the premises of McDonalds at 13.00 next day. The riots were in full flow. The appellant knew perfectly well that they were. The purpose of his website was to wreak “criminal damage and rioting in the centre of Northwich, and the event called for participants to meet in a restaurant in Northwich at lunchtime on 9th August. The website was aimed at his close associates, who he referred to as the “Mob Hill Massive”, and his friends, but he also opened it to public view and included in the website references to ongoing rioting in London Birmingham and Liverpool. He posted a message of encouragement on the website that read “we’ll need to get on this, kicking off all over”.
Fortunately members of the community who saw the website were revolted by it and alerted the police. It addition, some of them left messages on the website expressing their disgust in no uncertain terms. The police infiltrated the website and posted messages on it, warning of the consequences if the website were followed. By the time it was closed down by the police, 9 people had confirmed their intention to attend. In the result, the offence which the appellant was inciting did not take place.
Following his arrest at 11.00 on 9th August, the appellant admitted that he had watched media coverage of the riots on the television and that he set up the website. He agreed that the event would be carried out, and that he would have attended himself if he had had enough alcohol. He said that it was not something that he would have done sober, and claimed that he had set the site up for a “laugh and to meet people to drink with”, but in later discussions he agreed that what he had done was stupid and that the effect of his actions was to encourage rioting and looting. He accepted responsibility for his actions. As we have indicated, his later guilty plea made clear that he had not set up the website as a joke. He believed that the offences he was inciting would happen.
The appellant is 21 years old. He has no criminal record, save for some motoring convictions, but in May 2011 he was cautioned for causing criminal damage. In the pre-sentence report attention was drawn to the fact that although he described the
offence as a “sick joke” that had gone wrong, he knew that his invitation would make its way to many people.

Perry John Sutcliffe – the facts
On 16th August 2011 in the Crown Court at Chester before the Recorder, this appellant pleaded guilty to intentionally encouraging or assisting the commission of an offence contrary to section 44 of the Serious Crime Act 2007. This conviction meant that the appellant accepted that he had encouraged the commission of riot, and intended to encourage its commission. In other words this too was deliberate action, with a specific intention, and certainly no joke. He was sentenced to four years’ imprisonment.
In the early hours of 9th August the appellant used Facebook to construct a web page called “The Warrington Riots”. On this web page he included a photograph of police officers in riot equipment in a “stand off position” with a group of rioters. He also included a photograph of himself and others in a pose described by police as “gangster like”. He sent invitations on his Facebook to 400 contacts. They were invited to meet at a Carvery in Warrington at 7pm on 10th August. In addition to his own Facebook contacts the website was also made available for general public viewing. Through the website 47 people confirmed that they would go to the meeting. In the meantime the police received communications from local residents who had seen and were concerned by what they read on the webpage and they closed the site down in the early hours of 9th August. In the result no one attended the meeting. The applicant was arrested at 11.00 on 9th August. He gave two “no comment” interviews. The court proceedings were rightly treated as urgent.
At the hearing the appellant pleaded guilty. After he entered his plea it was said on his behalf that he went back to the Facebook site and cancelled the event. It was further said that he woke up at around 10.00 and received a telephone call from a friend who had seen the entry on Facebook and, asked him about it. This had prompted the appellant to go to the Facebook site and cancel the event, posting a remark to the effect that it was a joke. It was suggested that the prosecution could not gainsay the appellant’s assertion that he brought about closure of the event before the police arranged for the Facebook site to be closed down. After discussion the Recorder said that he would deal with the appellant on the basis that he had retracted the entry as he had changed his mind. The issue which the discussion did not address was the reason for the change of mind. It was said on his behalf that the appellant decided to cancel the event after his friend had “asked him about the Facebook entry”. It was however not suggested that he had done so out of an overwhelming sense of regret or concern about the possible consequences of his entry. Nevertheless it was argued that the appellant had attempted to mitigate his crime by “putting things right”. The circumstances in which the appellant cancelled the event was important to any mitigation that might be available. At that stage the evidence on the point was incomplete. In an endeavour to establish the facts we asked for further evidence to be provided by the prosecution. In due course this was circulated to the appellant’s solicitor. We also sent a draft of the judgment which would be based on the further evidence, if admitted. We invited submissions whether the evidence should be admitted in the interests of justice under section 23 of the Criminal Appeal Act 1968. We also made clear that if the appellant wished to give evidence he would be permitted to do so. He declined the opportunity. We received written submissions from the appellant’s solicitor. In effect she asked us to rely on and treat ourselves as bound by the discussions before Judge Edwards. That was not good enough. We had to proceed on the basis of evidence which was not immediately available on 16th August. The interests of justice were clear. The case should proceed on the facts.
They show that at 10.15am on 9th August police went to an address in Warrington searching for the appellant. At this address they spoke to an individual called Phil O’Neil, making inquiries about the appellant’s whereabouts. Then they visited another address in the area and asked another friend of the appellant about his whereabouts. At 11.00am police officers attended 35 Richmond Avenue, Latchford, and they saw the appellant in company with Phil O’Neil, to whom they had spoken some 45 minutes or so earlier. The two men were coming out of the front garden of this address.
A forensic analysis of the appellant’s computer equipment establishes that the posting on Facebook which cancelled the event and said it was “only jokin f... hell” was created at 10.54am, literally a few minutes before the police arrived. Although we approach the decision in the appeal on the basis that the appellant decided to retract the Facebook entry, as his advocate suggested, the inference seems clear that this decision followed an intimation that the police were searching for him.
The appellant is 22. Earlier this year he was convicted of possession a class B drug and fined. According to the pre-sentence report he did not remember much about the offence as he had been drinking during the afternoon and evening, and when he was contacted by a friend he had been unable to recall what he had done.

The Sentencing Decision
In his sentencing remarks the judge made clear to both appellants that the sentence had to be a deterrent sentence to demonstrate that this conduct would not be tolerated. He took account of their early guilty pleas.
In relation to Blackshaw, he noted that the appellant had sought to take advantage of the public disorder and criminality occurring elsewhere and to transfer it to the peaceful streets of Northwich. If such disorder had arisen, he might become personally involved in the troubles. In short he had sought to organise criminality which had revolted many right thinking members of the community, who had expressed their revulsion by contributing to the detection of the offence, enabling the police to give warnings against any attendance. The appellant had sought to create public disorder and mayhem in Northwich. A custodial sentence was inevitable.
Taking account of the appellant’s plea, but as a deterrent to others a sentence of 4 years’ detention was appropriate.
In relation Sutcliffe the judge identified the relevant features of the case, including the fact that no less than 47 people had agreed to attend. They were fortunately outweighed by the number of residents in Warrrington who had contacted the police. The appellant had placed considerable strain on police resources in Warrington and caused real panic in the town, where a number of people anticipated scenes of riot similar to those which had been occurring throughout the country. The judge took the view that the case was more serious than that of Blackshaw, but he gave credit to the appellant for having changed his mind.
Again the sentence had to be a deterrent sentence. This behaviour would not be tolerated. A sentence of 4 years imprisonment was imposed.
In relation to Blackshaw the submission on the appeal is that the sentence was manifestly excessive. Insufficient credit was given for the early guilty plea, and disproportionate weight attached to the necessity to impose a deterrent sentence. The judge failed to give adequate weight to the fact that this was a single stupid act. No one had been contacted outside the entry on Facebook. There was nothing persistent about his conduct. He had not taken any further steps to incite any criminal activity. According to the written grounds of appeal the judge had failed to “distinguish between tangible acts of criminality and incitement which, in actual fact, leads to nothing”. Disproportionate weight to the necessity to deter others had been given by the judge to what was a spontaneous but monumentally foolish act.
In relation to Sutcliffe the effect of the written and oral submissions proceeded on the same broad premise and the judge was criticised for emphasising too heavily the reduction of crime which followed from the attention he paid to the potential for harm rather then the actual harm which had followed. It was suggested that insufficient attention had been given to the fact that the appellant thought better of his actions and closed down the site before any harm could be done. We are however unable to accept that the closing of the site was not directly connected to the information that the police were looking for him. It was also suggested that there was a degree of disparity in relation to different sentences already imposed in other parts of the country, and in particular the sentence imposed by His Honour Judge Milmo QC at Nottingham Crown Court in the case called R v Pelle. This contention, too, is without foundation. In Pelle the maximum sentence available to Judge Milmo was 5 years imprisonment. In the present case it is 10 years imprisonment. In both cases a reduction to allow for the guilty plea was appropriate. In other words, even if all other features of the case were identical (which they were not) the disparity argument is flawed at the outset.
When dealing with these two appeals we are, of course, conscious of the fact that in the end no actual harm in the streets of Northwich and Warrington actually occurred. It is not however accurate to suggest that neither crime had any adverse consequences. We know for a certainty that in each case a number of decent citizens were appalled by what they had read, and given the widespread rioting throughout the country, which at that time was spiralling out of control, we have no doubt that some, at least, of them were put in fear. In any event the fact that no rioting occurred in the streets of Northwich or Warrington owed nothing to either appellant. The reality was that armed with information from members of the public who were disturbed at the prospect, the police were able to interfere and bring the possibility of riot to an end.
We are unimpressed with the suggestion that in each case the appellant did no more than make the appropriate entry in his Facebook. Neither went from door to door looking for friends or like minded people to join up with him in the riot. All that is true. But modern technology has done away with the need for such direct personal communication. It can all be done through Facebook or other social media. In other words, the abuse of modern technology for criminal purposes extends to and includes incitement of very many people by a single step. Indeed it is a sinister feature of these cases that modern technology almost certainly assisted rioters in other places to organise the rapid movement and congregation of disorderly groups in new and unpoliced areas.
As we have already described, well established principles of sentencing have relatively recently been encapsulated in section 143(1) of the Criminal Justice Act 2003. This provides that when deciding the seriousness of any offence the court must consider “the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused”. What both these appellants intended was to cause very serious crime, in the case of Blackshaw, rioting burglary or criminal damage, each in the context of serious public disorder, and in relation to Sutcliff, rioting, in the context of serious public disorder. All this was incited at a time of sustained countrywide mayhem.
The judge was fully justified in concluding that deterrent sentences were appropriate. These offenders were caught red-handed. For the citizens of Northwich and Warrington that was just as well, because as we have explained, and the guilty pleas acknowledged, neither offender was joking when the Facebook entry was set up.

These appeals are dismissed.

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