Prince Michael of Kent, Grandmaster of Freemasons_________________________________________________________________________________Here follows the judgment from the “Royal Courts of Justice” London, England, against Simon Sheppard and Stephen Whittle for distributing our Tales of the Holohoax cartoons: 3 years and ten months imprisonment for Sheppard, and one year and ten months imprisonment for Whittle, along with the seizure of their printing equipment and computers. The emphasis (in boldface) has been supplied by us, otherwise this is the judgment as it was handed down by this court.The distinguished inquisitors and censors of satire of Her Majesty’s courts of “justice"___________________________________________________________________Case No: 2008.04402 B52009.04021 B52009.04020 B52008.04486 B52009.00658 B5Neutral Citation Number: [2010] EWCA Crim 65IN THE HIGH COURT OF JUSTICECOURT OF APPEAL (CRIMINAL DIVISION)ON APPEAL FROM THE CROWN COURT AT LEEDSHHJ GRANT2009.04020b5*1Royal Courts of JusticeStrand, London, WC2A 2LLDate: 29/01/2010Before:LORD JUSTICE SCOTT BAKERMR JUSTICE PENRY-DAVEYandMR JUSTICE CRANSTON- - - - - - - - - - - - - - - - - - - - -Between:Regina Respondent- v -Simon Guy SHEPPARD and Stephen WHITTLE Appellants- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr. A. DAVIES (instructed by Williamsons, Hull) for the Appellant SheppardMrs L. TURNBULL (instructed by Payne & Payne, Hull) for the Appellant WhittleMr J. SANIDFORD and Ms. Denise BREEN-LAWTON for the RespondentHearing dates: 26 and 27 November 2009- - - - - - - - - - - - - - - - - - - - -JudgmentLord Justice Scott Baker:1. These two appellants appeal with the leave of the full court against their convictionsfor a number of offences relating to racially inflammatory material under the PublicOrder Act 1986 (“The 1986 Act”) The Registrar referred their sentence applications tothis court.2. The history of the proceedings is, in brief, as follows. On 11 July 2008 in the CrownCourt at Leeds before Judge Grant and a jury Whittle was convicted of four counts ofpublishing racially inflammatory material (counts 4, 5, 7 and 8). Sheppard wasconvicted of 9 counts of publishing racially inflammatory material (counts 4, 5, 7, 8,9, 12, 13, 14 and 15).3. They then left the jurisdiction and went to the United States of America where theyclaimed asylum. The trial continued in their absence. On 14 July 2005 Whittle wasconvicted by a majority of 10 to 1 of one further count of the same offence – count 6– and Sheppard by a majority of 10 to 1 of two further counts of the same offence –counts 6 and 10.4. There were 7 counts in relation to Sheppard on which the jury was unable to agree.These were:Counts 1, 2, 17 and 18 – possessing racially inflammatory material.Counts 3 and 11 – publishing racially inflammatory material.Count 16 – distributing racially inflammatory material.5. There was a retrial in Sheppard’s absence and he was convicted of counts 1, 3, 16, 17and 18. On 8 January 2009 he was found not guilty on the judge’s direction of count2 and the prosecution did not proceed with count 11.6. The claim for asylum in the USA was refused and the two appellants were returned tothe jurisdiction. On 10 July 2009 Sheppard was sentenced to a total of 4 years and 10months imprisonment and Whittle to a total of 2 years and 4 months imprisonment.Included in those sentences were 4 months consecutive sentences for bail offences.The Bail Act sentences are not the subject of the present appeals. The judge alsomade forfeiture orders under section 143 of the Powers of Criminal Courts(Sentencing) Act 2000 in respect of which Sheppard seeks an extension of time andleave to appeal.7. The broad nature of the prosecution case was that Whittle composed material whichhe submitted by e-mail to Sheppard. Sheppard edited the material on his computerand then uploaded it to a website called heretical.com which was set up by him andwas hosted by a remote server located in Torrance, California. When posted on thewebsite the material was available for access via the internet by visitors to thewebsite, including people within the jurisdiction of England and Wales.8. Count 1 related to the possession by Sheppard on 30 May 2005 of a pamphlet calledTales of the Holohoax which was found on a search of his home in East Yorkshire. Itwas a publication in the form of a comic book, the central theme of which was to castdoubt on the existence of the Holocaust. The publication also suggested that theJewish people had a history of inventing stories of the commission of atrocitiesagainst them and it portrayed the Jewish people in a way that, as was alleged, made itlikely that racial hatred would be stirred up against them if the pamphlet wasdistributed. Count 2 contained an allegation in identical terms against Sheppard, but ayear later.9. Count 3 related to the publication by Sheppard of the Tales of the Holohoax pamphletin full on the heretical.com website. There was evidence from a police officer, DCBrown, who visited the site and downloaded the documents.10. Counts 4 to 8 related to a number of other articles written by Whittle, edited bySheppard and published by Sheppard on the heretical.com website. All the articleswere alleged to contain derogatory remarks about Jewish people and black people.11. Counts 9 to 15 related to the publication by Sheppard on the heretical.com website ofa number of other documents which were likewise alleged to contain material thatwas threatening, abusive or insulting towards various racial groups.12. Counts 16 related to the distribution by Sheppard of a pamphlet called “Don’t beSheeple” which was likewise alleged to be racially inflammatory, count 17 to thepossession by him on 4 July 2008 of a number of copies of that pamphlet and count18 to the possession by him on the same date of a number of copies of the Tales of theHolohoax pamphlet.13. Matters came to light in this way. On 13 August 2004 Professor Klug, a researchfellow with the Centre for the Study of Human Rights at the London School ofEconomics forwarded to Lord Goldsmith, the Attorney General, a pamphlet entitledTales of the Holohoax which had been sent to her personally. Four days earlier on 9August 2004 a Mr Whine had written to the Chief Constable of Lancashirecomplaining that the same pamphlet had been received by the Blackpool ReformSynagogue. A similar complaint was made to the Western Division PoliceHeadquarters. The Crown Prosecution Service was invited to consider prosecutingthe publisher under Part III of the 1986 Act.14. Sheppard was traced through the publisher’s address printed on the pamphlet. TheCrown Prosecution Service decided that Tales of the Holohoax contained wordswhich were abusive, insulting and possibly threatening towards a racial group, namelyJewish people and that further investigations were required to discover the extent ofthe publication and distribution. In March 2005 Sheppard was arrested andinterviewed. It became apparent that he operated a number of websites, andregistrations for 15 websites were found in his name at his home address. Thewebsites had names such as heretical.com; klan.org; nazi.org; and whitepower.co.uk.During a review of this material it became apparent that Whittle had been writingarticles under the pseudonym of Luke O’Farrell and these were published bySheppard on his website heretical.com.15. Having edited the material, Sheppard posted it to the website in Torrance California.In order to do this he used a format known as File Transfer Protocol. Once thematerial reached the server, the server then converted the format of the material toHTML which made it available to be accessed on the internet by those visiting thewebsite, including people within the jurisdiction of England and Wales. Sheppardhad control of the website as far as its contents were concerned. He could upload andedit material.16. The appellants do not challenge the jury’s findings that in each of the counts inrespect of which they were convicted the material was racially inflammatory; norcould they. Rather, the appeal is concerned with issues of law.17. The appeals against conviction concern only those counts relating to the internet; thatis counts 3 – 15. Indeed the other counts (1, 2, 16, 17 and 18), which concernedSheppard only, related to hard copy material. Each of the internet counts of which theappellants were convicted involved an allegation of publishing racially inflammatorymaterial contrary to section 19 (1) of the 1986 Act.18. Section 19 of the 1986 Act provides:“(1) A person who publishes or distributes written material whichis threatening abusive or insulting is guilty of an offence if –a) He intends thereby to stir up racial hatred, orb) Having regard to all the circumstances, racial hatred is likely to bestirred up thereby.(2) In proceedings for an offence under this section it is adefence for an accused who is not shown to have intendedto stir up racial hatred to prove that he was not aware of thecontent of the material and did not suspect, and had noreason to suspect, that it was threatening, abusive orinsulting.(3) References in this part to the publication or distribution ofwritten material are to its publication or distribution to thepublic or to a section of the public.”19. The appellants advance three grounds of appeal. The main one relates to jurisdiction,the argument being that a publication on the internet is only cognisable in thejurisdiction where the web server upon which it is hosted is located and since in thiscase the location was California the publication falls outside the jurisdiction ofEngland and Wales. We would add that it is common ground that none of thematerial charged by the internet counts is illegal in the United States of America. Theother grounds concern the meaning of “publication” in section 19 and the applicationof section 19 to publication on the internet and whether the material published on theinternet was “written material” within the meaning of section 29 of the 1986 Act.Section 29 provides that “written material” includes any sign or other visiblerepresentation.Jurisdiction20. The judge found that the test to be applied was to be found in the case of R v Smith(Wallace Duncan) (No.4) [2004] 2Cr App R 17, [2004] EWCA Crim 631. That isthat the Crown Court had jurisdiction to try the appellants for their conduct because asubstantial measure of the activities constituting the crime took place in England. Herejected the appellants’ arguments that the determinative factors were (1) that the actof publishing took place in California when the format of the material supplied bySheppard was converted to allow it to become accessible on the internet, and when itwas accessed by other people clicking on the website; (2) that the act complained ofdid not constitute a criminal offence in the United States of America because it wasnot only not a criminal act but also specifically protected by the First Amendment tothe American Constitution; and (3) that the wording of section 42 of the 1986 Act wasdifferent from the jurisdictional wording of, for example, the Theft Act 1968 and thusthe Wallace Duncan Smith (No.4) line of authority was not applicable.21. The judge said in his ruling that the test to be applied was summed up effectively in aquotation at paragraph 55 of the judgment of Lord Woolf C.J. in Wallace DuncanSmith (No.4) citing Rose L.J. in Smith (No 1):“The passage in Treacy v DPP to which Roberts CJ refers is thecelebrated discussion by Lord Diplock of the bounds of comityand the judgment of La Forest J in Libman contains a mostvaluable analysis of the English authorities on the justicabilityof crime in the English courts which ends with the followingconclusions:The English Courts have decisively begun to move awayfrom definitional obsessions and technical formulationsaimed at finding a single situs of a crime by locating wherethe gist of the crime occurred or where it was completed.Rather, they now appear to seek by an examination ofrelevant policies to apply the English criminal law where asubstantial measure of the activities constituting the crimetake place in England, and restricts its application in suchcircumstances solely to cases where it can seriously beargued on a reasonable view that these activities should onthe basis of international comity not be dealt with by anothercountry.”22. The judge pointed out that the material complained of was prepared in England andWales, was uploaded onto the website from England and Wales and that this musthave been done by Sheppard in the knowledge and with the expectation and intentthat the material should be available to the public or a section of it within thejurisdiction in England and Wales. He noted there were references to postage forpeople living in England and Wales should they wish to have the materials sent tothem by post. Thus it was in the contemplation of Sheppard that people in Englandand Wales should have access to the material which he posted on the website.Further, the material appearing on the computer user’s screen was exactly orsubstantially in the same form as it was when it was uploaded by Sheppard. He addedthat even if the defence were correct that a novus actus occurred in California at thepoint at which the server was utilised (which the judge said he seriously doubted wasthe case), use of the server was merely a stage in the transmission of the materialrequiring no intervention once the website was activated. Any novus actus could onlybe regarded as that of an agent acting on behalf of Sheppard and thus the act inEnglish law of the principal. It could not, the judge said, be seriously argued on areasonable view of all the evidence that the appellants’ activities should, on the basisof international comity, be dealt with by another country.23. Mr Sandiford, for the Crown, submits that the judge was correct to rule that the“substantial measure “test was satisfied for the following reasons: Sheppard operated and controlled the website from within the jurisdiction; the material was uploaded, maintained and controlled from within thejurisdiction; the material, the subject of counts 4 – 8, was written and edited within thejurisdiction; the material the subject of counts 9 – 15 was collated and selected within thejurisdiction; Sheppard’s website included a dedicated British page (no other country hadsuch a page) on the website and offered books for sale with prices and postagequoted in sterling; Sheppard’s website and Whittle’s column in which the material the subject tocounts 4 – 9 was published were linked to websites such as that of the BritishPeople’s Party; E-mail traffic between the appellants revealed their intention to publish thematerial on the website within the jurisdiction and they claimed to have doneso in order to satirise political correctness and redress an unbalanced media.24. There was in our view abundant material to satisfy the “substantial measure” test.However, Mr Adrian Davies for Sheppard in a submission supported by Mrs LindaTurnbull for Whittle submits that this is not the correct test and that Wallace DuncanSmith (No. 4) is of no assistance in determining the issue of jurisdiction in the presentcase. Wallace Duncan Smith was convicted of one count of fraudulent trading contraryto section 458 of the Companies Act 1985 and two counts of obtaining property bydeception contrary to section 15 of the Theft Act 1968. Smith, a Canadian national,was chairman and managing director of a merchant bank which ceased trading in 1991.It was subsequently wound up owing its unsecured creditors some £92m. It alsocontrolled other companies based in Canada, including Wallace Smith Holdings(WSH). Working from this country and using a group of companies which hecontrolled, Smith set up various bogus deals between the merchant bank and WSHwhich boosted the size of the merchant bank’s profits. While the dishonestarrangements were put into operation by Smith in this country, the obtaining of themoney took place outside the jurisdiction when the money was paid into a bank accountin New York.25. The problem faced by the court in Wallace Duncan Smith (No 4) was a conflictbetween the decisions of this court in Smith (No. 1) [1996] 2 CAR 1 and R v Manning[1999] QB 980. As the Lord Chief Justice observed at paragraph 48, the issue was animportant one and involved the extent to which it was appropriate for the court todevelop the common law as to jurisdiction in order to meet the changing requirementsof society. In the event the court followed Smith (No. 1) and in doing so the LordChief Justice cited from the opinion of Lord Griffiths in Liangsiriprasert vGovernment of United States of America (1991) 92 Cr App R 77,90.“Unfortunately in this Century crime has ceased to be largelylocal in origin and effect. Crime is now established on aninternational scale and the criminal law must face this newreality. Their lordships can find nothing in precedent, comityor good sense that should inhibit the common law fromregarding as justiciable in England inchoate crimes committedabroad which are intended to result in the commission ofcriminal offences in England.”26. Lord Woolf went on to point out that Liangsiriprasert was applied in Sansom & ors(1991) 92 Cr App R 115 in a judgment delivered by Taylor LJ. Sansom was anotherconspiracy case and Lord Woolf could see no distinction in relation to the principlesof jurisdiction between conspiracy and obtaining by deception.27. We have to consider whether there is any basis for not applying in the present case the“substantial measure” principle for establishing jurisdiction as enunciated by the LordChief Justice in Wallace Duncan Smith (No.4). The starting point seems to us to bethe terms of the 1986 Act. Mr Sandiford points out that sections 18, 19 and 23contain a comprehensive scheme to restrict the public dissemination of writtenmaterial intended or likely to stir up racial hatred. Section 18 covers display of suchwritten material, section 19 publication and distribution and section 23 possession. Inthe interpretation section of the Act, section 29 “written material” is described asincluding any sign or any visible representation. Whilst in 1986 the world-wide webwas a thing of the future and computers were in their infancy it seems to us clear that“written material” is plainly wide enough to cover the material disseminated by thewebsite in the present case. The judge took the same view. He said that what was onthe computer screen was first of all in writing or written and secondly that theelectronically stored data which is transmitted also comes within the definition ofwritten material because it is written material stored in another form. He drew acomparison with opening and closing a book; when the book is open you can see thewriting; when it is closed you cannot.28. The judge was referred to Hansard. Both the appellants and the Crown sought to relyon it. The appellants argue that Hansard makes clear that no consideration was given,when the Bill was debated, to the internet. The Crown argue that the debate illustratesParliament’s intention was to ensure that “written material” in Part III of the 1986 Actwas wide enough to cover new forms of communication so that racist organisationsand others could not advance the type of argument being put forward in the presentcase.29. For our part we think that the meaning of “written material” as interpreted by section29 is sufficiently clear to cover the present case without recourse to Hansard. Theword “includes” in section 29 is plainly intended to widen the scope of the expression.We reject Mrs Turnbull’s submission that the written material has to be in visible,comprehensible form with some degree of permanence. We also reject thesubmission that any assistance is to be obtained from the Obscene Publications Act1959 which, as originally drafted, was not wide enough to embrace electronicpublication.30. Mr Davies draws our attention to the Sexual Offences Act 2003 where Parliament haslegislated to criminalise certain categories of conduct regardless of where the offencesare committed and whether or not the conduct is illegal in the country in which it iscommitted. He submits that the absence of any provisions similar to sections 47 – 50of the Sexual Offences Act 2003 in the 1986 Act in a clear pointer limiting its extentto England and Wales.31. Section 42 of the 1986 Act provides that the provisions of the Act extend to Englandand Wales save for some limited exceptions that mainly relate to Scotland andNorthern Ireland. We do not think it assists in taking the present case outside thejurisdiction principle in Wallace Duncan Smith (No 4). We agree with the judge thatsection 42 is not a restriction of jurisdiction to England and Wales, rather it sets outthe limitations imposed by the statute as to its extent within England and Wales. Itsets out the extent to which the Act applies within England and Wales. It is notdeterminative of the jurisdiction of the courts of England and Wales.32. The position seems to us to be as follows. The conduct the relevant provisions of theAct seek to prevent is the dissemination of material intended or likely to stir up racialhatred. In the present case under section 19 we are concerned with publication ofsuch material, to which we shall come in a moment. The reality is that, as expressedby the judge, almost everything in this case related to this country. This is where theappellants operated one in Preston, the other in Hull; this is where the material wasgenerated, edited, uploaded and controlled. The material was aimed primarily at theBritish public. The only “foreign” element was that the website was hosted by aserver in Torrance California and, as the judge observed, the use of the server wasmerely a stage in the transmission of the material.33. What is the test for jurisdiction if it is not as set out in Wallace Duncan Smith (No.4)?Mr Davies submitted that there were essentially 3 jurisprudential theories at topublications on the internet. The first is that a publication is only cognisable in thejurisdiction where the web server upon which it is hosted is situated - the country oforigin theory. The second is that publication on the internet is cognisable in anyjurisdiction in which it can be down-loaded – the country of destination theory. Thethird is that while a publication is always cognisable in the jurisdiction where the webserver upon which it is hosted is situated, it is also cognisable in a jurisdiction atwhich the publication is targeted – the directing and targeting theory. Since we havecome to the clear conclusion that the jurisdiction is governed by the substantialmeasure principle enunciated by this court in Wallace Duncan Smith (No.4) it isunnecessary for us to explore any of these three theories or the effect of applyingthem to the facts of this case. It seems to us that the substantial measure test not onlyaccords with the purpose of the relevant provisions of the 1985 Act it also reflects thepracticalities of the present case.Publication34. Before us Mr Davies put publication at the forefront of his argument submitting thatif, as he contended was the case, there was no publication that was the end of the case.His argument is that one cannot have a publication without a publishee (or rathersufficient publishees) to constitute a section of the public as required by section 19 (3)of the 1986 Act. The judge noted that the only direct evidence of there being apublishee was that of the police officer, DC Brown, and that in one sense he was aself-publishee. In our view, however, the judge put it correctly when he said thatwhat the Crown had to show was that there was publication to the public or a sectionof the public in that the material was generally accessible to all or available to or wasplaced before or offered to the public and that that could be proved by the evidence ofone or more witnesses. This accords with the definition of publish and publication inthe Shorter Oxford Dictionary. As Kennedy L.J. put it in R v Perrin [2002] EWCACrim 747, a case under the Obscene Publications Act 1959, at paragraph 22 “thepublication relied on in this case is the making available of preview material to anyviewer who may chose to access it …” The material in the present case wasavailable to the public despite the fact that the evidence went no further thanestablishing that one police constable downloaded it. It is also to be noted that thenatural meaning of publication, as applied by the judge gives effect to the two distinctoffences under section 19 of publication and distribution of racially inflammatorymaterial. It also fits neatly with the scheme of Part III of the 1986 Act which creates acomprehensive range of offences in respect of racially inflammatory written materialnamely section 18 – displaying, section 19 – publishing or distributing and section 23– possession with a view to the material being displayed published distributed etc.35. The point that there cannot be publication without a publishee is in our judgmentfundamentally misconceived. It is based on an irrelevant comparison with the law oflibel. Libel is a tort or civil wrong where it is necessary for the claimant to prove thatthe words complained of were published of him and were defamatory of him. Nordoes criminal libel assist, for reading out socially inflammatory words will amount toan offence under section 18 (1). Further, the offences of displaying, distributing orpublishing racially inflammatory written material do not require proof that anybodyactually read or heard the material.Written Material36. The appellants’ third ground of appeal contends that even if there was publication andthe English court has jurisdiction, any publication was not of written material. Wehave covered most of the appellants’ arguments on this point when dealing with theissue of jurisdiction and explained why in our view the contention is misconceived.For completeness we should say that we are not persuaded by Mr Davies’ eiusdemgeneris argument which is that “written material” should be limited to something akinto a sign. What section 29 says is that “written material” includes any sign or othervisible representation and in our view those words are sufficiently wide to includearticles in electronic form.37. In our judgment there is no merit in any of the appellants’ grounds of appeal againstconviction.Sentence38. The question is whether the sentences of 4 years for Sheppard and 2 years forWhittle were either wrong in principle or manifestly excessive. There is no error inprinciple; what we need to look at is the totality of the criminal conduct of eachappellant. There is no appeal against the consecutive sentences of 4 months in eachcase for the offences under the Bail Act. Sheppard had to be sentenced for a total of16 offences, 3 of which were for possession, 1 for distributing and the remainder forpublishing, racially offensive material. Whittle had to be sentenced for 5 offences, allfor publishing racially offensive material. The judge structured his sentence in thecase of Sheppard in this way. For counts 1 and 3 which took place between March2005 and April 2006 12 months imprisonment concurrent; for counts 4 to 10 and 12to 15 which all involved setting up, running and editing the website heretical.com 2óyears imprisonment concurrent with each other but consecutive to the 12 months; andfor counts 16 to 18, which were committed on bail in the summer of 2007, 12 monthsconcurrent with each other but consecutive to the other groups of sentences. Whittlereceived concurrent sentences for each of the 5 offences involving publication onheretical.com of articles of which he was the author.39. The maximum penalty for each of these offences was 7 years imprisonment.Sheppard has a previous conviction for 2 similar offences in 2000 under sections 19and 23 of the 1986 Act for which he received a sentence of 9 months imprisonment.The judge in passing sentence said he had rarely seen or read and had to considermaterial that was so abusive and insulting in its content toward racial groups withinsociety in this country. We agree with that assessment; this was truly perniciousmaterial. The judge rightly drew attention to its potential for social harm. Heobserved that by using a server in the United States the appellants thought they hadfound a way to circumvent English law. We regard the need to deter others as animportant element of sentencing in cases of this kind.40. Mr Davies submits that Sheppard’s sentence is manifestly excessive when measuredagainst the sentences passed on El Faisal [2004] EWCA Crim 343 (12 months ) andmore particularly Abu Hamza [2006] EWCA Crim 2918 (21 months). It is trite to sayno two cases are the same.41. The judge having presided over the two trials was well placed to assess the criminalityof each appellant. That said, however, the point that has most impressed us is thatthere is no evidence of how many people saw the material or of the consequences oftheir having seen it, although we do know that there was several thousand “hits” orvisits to heretical.com per day. There was no evidence of any individual having beencorrupted, albeit we appreciate such evidence would unlikely to be forthcoming.Clearly a substantial sentence was called for in the case of Sheppard because he was arepeat offender and the offences spanned a not inconsiderable period as well as beingrepeated whilst on bail. In our judgment each of the constituent elements ofSheppard’s sentence was amply justified but we think 4 years in total was too long.We think the right sentence would have been 3 years and accordingly we grantleave to appeal against sentence and we achieve that result by reducing the sentenceson counts 4 to 10 and 12 to 15 from 2 years to 18 months. All the other sentenceswill remain as before. As to Whittle, his involvement was less than that of Sheppardand over a shorter period. He had no previous convictions. On the other had he wasthe “brains” behind the construction of the offensive material which he fed toSheppard. We grant leave in his case too and the concurrent sentences of 2 years willbe reduced to 18 months. Accordingly, after taking into account the sentences for theBail Act offences, which are not the subject of appeal, the total sentence to be servedby Sheppard is 3 years and 10 months and Whittle 1 year and 10 months. We grantleave to appeal against sentence and vary the sentences to that extent. Credit is ineach case given for the 23 days spent on remand.Forfeiture42. The judge made a forfeiture order against Sheppard under section 143 (1) (a) and (b)of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”) withrespect to items of office equipment and computers belonging to him. This aspect ofhis appeal against sentence requires an extension of time and leave to appeal. Forreasons we shall explain we do not think there is any merit in the forfeiture appeal andwe refuse both an extension of time and leave to appeal.43. There was, unfortunately, no transcript of the judge’s ruling on forfeiture but in theevent it was possible to overcome this problem by playing us in court a tape of thejudge’s judgment. This was very helpfully transcribed by the shorthand writer whoprovided a transcript to the court shortly after the conclusion of the hearing.44. The judge first referred to section 143 of the 2000 Act which provides:“Where a person is convicted of an offence and the court by orbefore which he is convicted is satisfied that any propertywhich has been lawfully seized from him or which was in hispossession or under his control at the time when he wasapprehended for the offence or when a summons in respect of itwas issued a) has been used for the purpose of committing or facilitating commissionof any offence or b) was intended by him to be used for that purpose,The court may (subject to sub-section (5) below) make an order under thissection in respect of that property.” Subsection (5) provides:“In considering whether to make an order under this section inrespect of any property, a court shall have regard –(a) to the value of the property; and(b) to the likely financial and other effects on the offender of the making ofthe order (taken together with any other order that the courtcontemplates making).”45. The court had prepared a schedule. There was agreement about the forfeiture of someitems; others were in dispute. There were two categories of disputed items, officeequipment and computer equipment. The main thrust of Mr Davies’ argument onbehalf of Sheppard before the judge was that he had a legitimate publishing businessby which he earned a living and that loss of the items sought by the Crown to beforfeited would put him in a precarious financial situation.46. The judge concluded that the computers had clearly been used for legitimate purposesbut that they had also been used and were intended to be used by Sheppard forcommitting or facilitating the commission of offences. The judge did not consider theforfeiture of these items would constitute excessive punishment.47. As to office equipment, the judge again said he had in mind section 143 (5). Hereferred to the additional argument that there was no evidence this equipment wasused for the production of any of the hard copies that were distributed. The judge saidhe was entitled to draw the inference that the office equipment in question was, if notused for the commission or facilitating of offences, intended to be used for suchpurpose. He said he was entitled to draw this interference because of Sheppard’sdetermination and persistence in publishing material of this nature. He had of coursea previous conviction for similar offences and committed further offences whilst onbail. We cannot fault the judge’s reasoning or his decision. The transcript identifiesby number the various items to be forfeited by Sheppard and it is unnecessary for usto repeat them.Conclusion48. (1) The appeals against conviction are dismissed.(2) Leave to appeal against sentence is granted and the appeals against sentence areallowed to the limited extent indicated.(3) Leave to appeal against the forfeiture order imposed on Sheppard and an extensionof time for doing so is refused._________________End quote
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