Judgment Approved by the court for handing down.
DPP v Bussetti
video stereotyped the people in Grenfell Tower. He may well have been referring to the
comment “this is what happens when they don’t pay their rent”.
35.
I accept that the racism factor is potentially relevant to this extent. For the offence under
s 127(1)(a) to be committed the sender must intend or be aware that the message is not
simply offensive but grossly offensive. The fact that the message is in bad taste, even
shockingly bad taste, is not enough: see per Lord Judge CJ in Chambers v DPP at [28]
and the CPS guidance on prosecutions involving social media communications. Mr
Summers reminded us of the Strasbourg case law on Article 10 of the ECHR such as
Alekhina v Russia (2019) 68 EHRR 14 (the “Pussy Riot” case) which also emphasises
this, but it appears that expressly racist discourse has not been held to be protected under
Article 10.
36.
Nevertheless, I would accept the prosecution submission that the Chief Magistrate did
not address the significance of the fact that on 6 November 2018, that is to say two days
after the bonfire, the Respondent was shown the video which had been uploaded on
YouTube; accepted that it was his; and himself described it as “shocking” and
“horrible”. Assuming in his favour that it was not his but Mr Hancock’s or someone
else’s, it was so similar in what it showed that Mr Bussetti thought it was his. No one
suggests that there were two different effigies burned on the bonfire. It may be that the
sound quality of Mr Bussetti’s video was not as good as that of the video which we
have seen (if it was indeed not the same one), or the camera angle slightly different, but
that is of minimal significance. In my judgment a court of trial would be entitled to
conclude that the s 127(1)(a) offence was constituted by a video of the burning effigy
without any sound track at all.
37.
I would therefore answer question 2, “yes”.
Question 3: was the court required to consider whether the content contained in the
Respondent’s video was “grossly offensive to members of the public or victims of the Grenfell
tragedy?
38.
I consider that this question is also to be answered “yes” in the light of the affirmative
answer to question 2. Since it was clear for the reasons given above that Mr Bussetti’s
video was substantially similar (though maybe not identical) to the one uploaded to
YouTube and played in court, the Chief Magistrate was required to consider whether
its content was grossly offensive and whether the Respondent intended it to be so or
was aware that it was likely to be so.
What order should then be made?
39.
Mr Summers submits that even if questions 2 and 3 are answered yes, the appeal should
nonetheless be dismissed. He submits that the best the DPP could do in this court would
be obtain an order for the case to be remitted to the same judge for the trial to continue;
and since the Chief Magistrate held that she could not be sure that the cut-out figures
depicted on the effigy were not the defendant and his friends, burned in what she rightly
described as a bonfire joke of colossal bad taste, she would have dismissed the case
anyway.
40.
Even if the trial court accepts that the cut-out figures may have been intended to
represent the Defendant and his friends, that would not in my view provide a defence
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