Director of Public Prosecutions v Bussetti [2021] EWHC 2140 (Admin)

Bussetti attended a bonfire party at which an effigy of Grenfell Tower was burned, at the top of the tower was cut out figures, one in a hijab. He took a video of the bonfire and set it to two WhatsApp groups, each with limited membership. Comments could be heard on the footage such as “stay in the flat”, “this is what happens when you don’t pay your rent” and “the little ninja’s going to get it”.

Bussetti was charged with sending a grossly offensive message contrary to section 127 of the Communications Act 2003. The prosecution applied to adduce evidence of racist messages and other material found on his phone.

The video sent by him to the WhatsApp groups was never recovered, the prosecution case rested on the contention that the video recovered from YouTube (uploaded by persons unknown) was the video taken. However, at the conclusion of the prosecution case the prosecutor became aware that another person at the party had posted a video and the court was informed.

The DPP applied to the Chief Magistrate to state a case, the questions for the appeal were:

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
   Judgment Approved by the court for handing down. DPP v Bussetti
   similar in content to the video shown and subsequently
   uploaded onto YouTube by a person unknown?
3. In all the circumstances was I required to consider
   whether the content contained in a video I could not be sure
   I had seen was grossly offensive to members of the public or
   victims of the Grenfell tragedy?”

The District Judge found the defendant not guilty, the acquittal was quashed and the case remitted to the Magistrates Court for a retrial. The Court said the question was whether Bussetti sent a message which he intended to be, or was aware might be, grossly offensive to members of the public who saw it. The fact message was in bad taste was not enough, in this case the racism factor was potentially relevant. A court of trial would be entitled to conclude the offence was constituted by a video of the burning effigy without any soundtrack at all.