sufficient 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 a
publishee was that of the police officer, DC Brown, and that in one sense he was a
self-publishee. In our view, however, the judge put it correctly when he said that
what the Crown had to show was that there was publication to the public or a section
of the public in that the material was generally accessible to all or available to or was
placed before or offered to the public and that that could be proved by the evidence of
one or more witnesses. This accords with the definition of publish and publication in
the Shorter Oxford Dictionary. As Kennedy L.J. put it in R v Perrin [2002] EWCA
Crim 747, a case under the Obscene Publications Act 1959, at paragraph 22 “the
publication relied on in this case is the making available of preview material to any
viewer who may chose to access it …” The material in the present case was
available to the public despite the fact that the evidence went no further than
establishing that one police constable downloaded it. It is also to be noted that the
natural meaning of publication, as applied by the judge gives effect to the two distinct
offences under section 19 of publication and distribution of racially inflammatory
material. It also fits neatly with the scheme of Part III of the 1986 Act which creates a
comprehensive range of offences in respect of racially inflammatory written material
namely 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 judgment
fundamentally misconceived. It is based on an irrelevant comparison with the law of
libel. Libel is a tort or civil wrong where it is necessary for the claimant to prove that
the words complained of were published of him and were defamatory of him. Nor
does criminal libel assist, for reading out socially inflammatory words will amount to
an offence under section 18 (1). Further, the offences of displaying, distributing or
publishing racially inflammatory written material do not require proof that anybody
actually read or heard the material.
Written Material
36.
The appellants’ third ground of appeal contends that even if there was publication and
the English court has jurisdiction, any publication was not of written material. We
have covered most of the appellants’ arguments on this point when dealing with the
issue 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’ eiusdem
generis argument which is that “written material” should be limited to something akin
to a sign. What section 29 says is that “written material” includes any sign or other
visible representation and in our view those words are sufficiently wide to include
articles in electronic form.
37.
In our judgment there is no merit in any of the appellants’ grounds of appeal against
conviction.
Sentence