Director of Public Prosecutions v Bussetti [2021] EWHC 2140 (Admin)
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# Director of Public Prosecutions v Bussetti [2021] EWHC 2140 (Admin)
Lord Justice Bean and Mr Justice Dove allowed the Director of Public Prosecutions’ appeal by way of case stated against an acquittal, quashed the acquittal and remitted the case to Westminster Magistrates’ Court for retrial before a differently constituted court.
Mr Bussetti had been charged with sending a grossly offensive message by means of a public electronic communications network, contrary to section 127(1)(a) of the Communications Act 2003. He was tried before the Chief Magistrate. On 3 November 2018 Mr Bussetti attended a bonfire night party at a friend’s home attended by about 30 people. One of the effigies brought to be burned on the bonfire was a tall structure depicting Grenfell Tower, inscribed with the word “Grenfell” and showing cut‑out figures including one said by the prosecution to be wearing a hijab. Mr Bussetti filmed the effigy burning and later that evening sent the video to two WhatsApp groups with about 14 and six members respectively. The soundtrack audible on the video included comments such as “help me, help me”, “The little ninja’s getting it”, and “That’s what happens when they don’t pay their rent”, each greeted with laughter. By 5 November the video had been shared on social media. Mr Bussetti attended Croydon Police Station, was interviewed under caution and admitted filming and sending the video. He identified various people in the video by name. He described the footage as “terrible”, acknowledged that it could be “quite offensive to people” and stated it was “shocking” and that survivors of the Grenfell fire would be “even more…terrified” by it. He maintained that there was no intention for it to go viral and that “it was just a horrible video.”
At trial the parties made formal admissions that Mr Bussetti had taken a video of the burning effigy on his mobile telephone and at about 8.57pm sent that video to two WhatsApp groups using his telephone. The prosecution adduced written statements from Ms Ruiz and Mr Taylor describing the trauma caused to them by seeing the video. The prosecution also successfully applied to adduce evidence of racist text messages and other material found on Mr Bussetti’s telephone, which the Chief Magistrate admitted as relevant to mens rea and important explanatory evidence. Mr Bussetti gave evidence and said the cut‑out models depicted his friends. He called a witness, Mr Clifford Smith, who confirmed the effigy depicted friends of the maker at the windows.
At the end of the hearing the prosecution advocate informed the court that Mr Bussetti was not the only person to have posted a video of the effigy; at least one other person, Mr Hancock, had also done so. The prosecution conceded that they could not prove that the video shown to the court was the one sent by Mr Bussetti. The Chief Magistrate held that she could not be sure that the video relied on by the Crown was the one taken by the defendant, nor could she be sure that the cut‑out images were not the defendant and his friends burnt in what she described as a bonfire joke of colossal bad taste. She further held that the truly offensive racist remarks and images sent by the defendant to others on a regular basis could not fill the holes in the Crown’s case. She therefore found the elements of the offence not proved beyond reasonable doubt and acquitted Mr Bussetti. She indicated that had certain issues been raised at half‑time she may well have upheld a submission of no case, and that an abuse of process argument might also have succeeded. She expressed concern that warning bells should have rung once the police became aware of information that potentially undermined their own case.
The DPP applied to state a case and appealed two principal questions. First, whether the court erred in deciding that without seeing the video taken by the defendant it could not be sure that it was similar in content to the video shown at trial and subsequently uploaded onto YouTube by a person unknown. Secondly, whether in all the circumstances the Chief Magistrate was required to consider whether the content contained in a video she could not be sure she had seen was grossly offensive to members of the public or victims of the Grenfell tragedy. After an application by the DPP this court ordered the case stated to be amended to incorporate the admissions and the agreed summary of Mr Bussetti’s interview under caution.
Lord Justice Bean, with whom Mr Justice Dove agreed, reviewed the statutory framework of section 127(1)(a) of the Communications Act 2003 and the leading authorities. He cited the House of Lords’ decision in Director of Public Prosecutions v Collins [2006] 1 WLR 2223, which held that the object of section 127(1)(a) is to prohibit the use of a service provided and funded by the public for the transmission of communications which contravene the basic standards of society. The offence is complete when the message is sent. It is for the justices to determine as a question of fact whether a message is grossly offensive, applying the standards of an open and just multi‑racial society and judging the words in context and in light of all relevant circumstances. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates. As to mens rea, the defendant must intend his words to be grossly offensive to those to whom they relate or be aware that they may be taken to be so. Lord Justice Bean also referred to Chambers v DPP [2013] 1 WLR 1833, which emphasised that a message which does not create fear or apprehension in those to whom it is communicated falls outside the provision where the message lacks menace.
Lord Justice Bean held that the Chief Magistrate did not address the relevance or significance of the interview, the formal admissions or the respondent’s own evidence. He rejected the materiality of her observation that Mr Bussetti’s video might have been shorter or longer than the one she had seen, or that the sound quality might have been different. Importantly, the significance of the defendant’s admissions in interview and the formal admissions at trial were not dealt with. He did not accept the respondent’s submission that the key to understanding the decision under appeal was racism. Section 127(1)(a) does not require any element of racism. The question was whether Mr Bussetti had sent via WhatsApp a message which he intended to be, or was aware might be, grossly offensive to members of the public, in particular members of the Grenfell community. Not all the victims of the Grenfell Tower disaster were from ethnic minorities, though many were. A video of the burning effigy could constitute the offence even without a sound track at all.
Lord Justice Bean held that on 6 November 2018 Mr Bussetti 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 suggested that there were two different effigies burned on the bonfire. The sound quality of Mr Bussetti’s video may not have been as good as that of the video which the court had seen, or the camera angle slightly different, but that was of minimal significance. A court of trial would be entitled to conclude that the section 127(1)(a) offence was constituted by a video of the burning effigy without any sound track at all. He therefore answered question 2 in the case stated in the affirmative. He also answered question 3 affirmatively, holding that the Chief Magistrate was required to consider whether the content of Mr Bussetti’s video was grossly offensive and whether the respondent intended it to be so or was aware that it was likely to be so.
Lord Justice Bean further held that even if the trial court accepted that the cut‑out figures may have been intended to represent the defendant and his friends, that would not provide a defence to the charge. A member of the Grenfell community or other reasonable member of the public seeing a video of the effigy would not know that the figures were intended to be anyone other than the residents of Grenfell Tower. There were no names attached to the cut‑out figures, only the name “Grenfell” at the top of the effigy which clearly depicted a tall building with people at the windows. It was no longer open to this court to order that the case should be remitted for the trial to continue, since the trial had been concluded by a judgment that the defendant was not guilty. That was a final decision, not an interlocutory ruling.
Lord Justice Bean held that the realistic options were remittal to Westminster Magistrates’ Court either with an order for a retrial or with a direction to convict. With some hesitation he concluded that the remittal should be for a new trial before a differently constituted court rather than with a direction to convict. Although the House of Lords in Collins were prepared to replace an acquittal with a conviction, they did so on very simple and obvious facts and partly on the basis of a concession by the defence. On an appeal by way of case stated this court should be slow to substitute its own view of whether a communication is grossly offensive where the court below, even making an error within Edwards v Bairstow [1956] AC 14, has acquitted. In addition, during the course of the hearing it became clear that further legal argument had been advanced on behalf of Mr Bussetti in relation to whether WhatsApp is a public electronic communications network for the purposes of the 2003 Act, and the court did not hear argument on that point.
In short, the appeal was allowed, the acquittal quashed and the matter remitted for retrial before a differently constituted magistrates’ court.
Galbraith [1981] 2 All ER 1060, [1981] 1 WLR 1039, 73 Cr App R 124
Malcolm v Director of Public Prosecutions [2007] EWHC 363 (Admin)
Edwards v Bairstow [1956] AC 14
Public Prosecutions v Collins [2006] 1 WLR 2223
Sweet v Parsley [1970] AC 132, (1969) 53 Cr App R 221
Director of Public Prosecutions v Smith [2017] EWHC 359 (Admin)
Chambers v Director of Public Prosecutions [2012] EWHC 2157 (QB), [2013] 1 WLR 1833
Director of Public Prosecutions v Collins [2006] 1 WLR 2223