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Judgment Approved by the court for handing down. DPP v Bussetti 8. That logic appeared to be sound and it was therefore assumed throughout the trial until just before I retired to consider my verdict that the video shown to the court taken from YouTube was the one taken by Mr Bussetti. 9. Applying the test in R v Galbraith [1981] 1 WLR 1039, I found that there was a case to answer in respect of the content of the YouTube video after hearing the prosecution evidence. There was no transcript provided by the Crown and the sound was of poor quality. But I found at that stage that what I could discern from the video I had been shown and that purportedly had been made by the defendant was prima facie grossly offensive. This was because (i) the video was of a burning model of the Grenfell tower, showing six cut-out figures which the prosecution maintained depicted Grenfell residents, including one figure in a hijab, and (ii) the burning of the model was accompanied on the audio recorded by the YouTube video by at least one comment which had racial overtones, namely reference to the figure wearing a hijab as a “little ninja”.” 18. After setting out in detail what had occurred during the trial she concluded:“21. The prosecution conceded they could not prove which video had been shown to the court, the one taken by Mr Bussetti or by Mr Hancock. There was no other evidence before me. As I record at paragraph 3 of my judgment, I could not be sure that the video shown to me was the one sent by Mr Bussetti. It followed I could not be sure what the video taken by Mr Bussetti had in fact showed, whether it encapsulated the whole incident taking place at the bonfire, none of it, part of it, whether it had audio and if so what could be heard and whether it showed the effigy or the bonfire or anything grossly offensive to any person. 22. The prosecution did not then apply for an adjournment to remedy any deficiency in the prosecution evidence as they are able to do in line with authorities such as Narinder Malcolm v DPP [2007] EWHC 363 (Admin). 23. In light of this I would rephrase the questions drafted in this appeal to these: 1. Did the court err in law in acquitting on the basis that the prosecution could not prove that the video produced in evidence at the trial was that which had been sent as a message by the defendant, given that it was not in issue he had sent by means of a public electronic communications network a message containing a video taken at the same event to that produced in evidence? 2. Did the court err in deciding that without seeing the video taken by the defendant it could not be sure that it was in fact

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Director of Public Prosecutions v. Bussetti

Case Law

Country

United Kingdom

Country Location

Latitud: 52.32950805122076

Longitud: -1.4047851562500706

Country Location (vinculado Case Law): United Kingdom

Decision Date: 30 jul 2021

Case Status: Cerrado

Case Outcome (Procedural)

Reversed and Remanded

Case Outcome (Disposition)

Judgment in Favor of Defendant

Keywords

Digital Rights
Discrimination
Hate Speech

Judicial Body: Appellate Court

Court Name: High Court of Justice Queen’s Bench Division

Case Number: [2021] EWHC 2140 (Admin)

Case Summary: The High Court of Justice Queen’s Bench Division held that a District Judge should have considered whether a video recorded by the defendant Bussetti was seriously offensive to the public and was substantially similar to a video uploaded to YouTube. Paul Bussetti had recorded and uploaded to Whatsapp a video of people burning an effigy depicting Grenfell Tower, a building in which 71 people died. An unknown person also uploaded a video of the event on YouTube which went viral, garnering newspaper and television attention. The Director of Public Prosecutions accused Bussetti of breaching s.127(1) of the Communications Act 2003 by sending a grossly offensive message by means of a public electronic communications network. The District court dismissed the case finding the prosecution had not been able to prove that the video uploaded to YouTube was the one recorded by Bussetti. On appeal, the High Court of Justice Queen’s Bench Division held that the District Judge did not correctly appreciate that the defendant himself had admitted to the police that the video uploaded by an unknown person to YouTube was substantially similar to the one he recorded. However, the Court held that a new trial should be conducted before a differently constituted court. The Court held that it should be cautious in the context of a cassation appeal and not substitute the trial to be conducted under a lower court. In particular, the Court mentioned that Bussetti had presented further legal arguments as to whether WhatsApp is a public electronic communications network for the purposes of section 127 of Communications Act 2003, which were not heard.

Case Significance: The High Court of Justice Queen’s Bench Division held that it should not convict directly on appeal a defendant accused of having breached s.127(1) of the Communications Act 2003 for having recorded and sent to two WhatsApp groups a video considered by the prosecution to be discriminatory and also seriously offensive to the public or the victims of the Grenfell tragedy. The Court considered that it should uphold the prosecution’s appeal and overturn the defendant’s acquittal, but remit the case to a new court to analyze the defendant’s new arguments that had not been heard (i.e., whether WhatsApp is a public electronic communications network for the purposes of section 127 of the Communications Act 2003). In this sense, despite the fact that the video could be considered seriously offensive and discriminatory, the Court considered that it should be cautious in the context of an appeal and not convict the defendant by substituting the trial to be conducted. In short, the decision reflects that even in the face of “expressions” that may be considered seriously offensive and discriminatory, a sentence of conviction limiting freedom of expression must be taken by examining all the arguments of the defendant and respecting his judicial guarantees.

Decision (including concurring or dissenting opinions) establishes influential or persuasive precedent outside its jurisdiction.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

Source Name and URL: Global Freedom of Expression

Collection

Columbia

Date Updated: 19 jul 2024

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English
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Director of Public Prosecutions v. Bussetti

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