Index on Censorship on Sentencing Policy

There has been some excitement around the four year sentence handed down to two men, Jordan Blackshaw and Perry Sutcliffe-Keenan, who were involved in an attempt to encourage a riot in their neighbourhood.:

Both men pleaded guilty under sections 44 and 46 of the Serious Crime Act to intentionally encouraging another to assist the commission of an indictable offence.

The prosecution said Blackshaw had created a Facebook event called “Smash d[o]wn in Northwich Town”, intended for the receipt of the “Mob Hill Massive Northwich Lootin”.

The page said people should meet on 9 August, between 13:00 and 16:00 BST, “behind maccies” – thought to be McDonald’s in Northwich town centre.

Chris Johnson, of Moss Haselhurst solicitors in Winsford, said: “It was something which was started as a joke by Jordan.

“Obviously it was rather misplaced and misguided.

“We are not aware of any one taking up the call that they made.

“Northwich, as far as we understand, has remained peaceful.”

The two men are appealing their sentence. They may succeed, or not, depending on the Court of Appeal’s  reading of the precedents and authorities. That isn’t the subject of this post.

Rather, I’d like to talk about Index on Censorship’s criticism of these sentences. As you’d expect, their key focus is on the extent to which the sentences infringe freedom of expression.

Emily Butselaar, Online editor of Index on Censorship said: “These sentences and the government’s rhetoric on banning social media during unrest are undermining our international reputation as a bastion of free expression and justice. The fact the Chinese state media have praised the UK government for suggesting such a ban should be acutely embarrassing for No. 10.

“In adopting a one-size-fits-all approach to sentencing, the courts have failed to recognise that these are very different cases. Sutcliffe-Keenan claimed he created the Facebook event as a drunken joke. His post was only up for a matter of hours before he took it down and apologised online, whereas Blackshaw was arrested by police at the meeting place he’d designated.

“The sentences were imposed with the aim of deterrence but Index is concerned that the courts are in danger of undermining the UK’s reputation for both justice and freedom of speech. Even though these cases did not lead to violence, these “speech crimes” have led to some of the harshest sentences seen following the riots in the UK last week.”

The men did not know each other. Blackshaw, who will serve his sentence at a young offenders’ institution, called upon his virtual friends to meet for a “lootin’”. He created a Facebook page entitled “Smash Dwn in Northwich Town”. Only nine of his 147 friends responded to the event and Blackshaw arrived alone at the designated meeting place.  He was met by police officers rather than fellow looters and was immediately arrested.

On 9 August, Sutcliffe-Keenan created a page called “Let’s Have a Riot in Latchford”. A few hours later, he took down the post. According to his lawyer, Rebecca Tanner, Sutcliffe-Keenan was drunk while posting the messages and quickly removed the event after “a phone call from a friend prompted him to remember his action”. Once he “realised the gravity” of his actions, Sutcliffe-Keenan removed the page and made a public apology. No one turned up for the event, but 47 individuals confirmed their attendance on the page. According to prosecutors, the Facebook post still caused panic in the town.

The key difference between the two cases is that Blackshaw turned up to the meeting place, whereas Sutcliffe-Keenan did not.

Blackshaw claimed that the proposed “event” was a “joke”. No doubt he tried to persuade the court that he turned up at the meeting point to share the joke with anybody who had also strolled along. In any case, the court evidently did not accept that Blackshaw’s actions constituted a joke, and sent him to prison.

Sutcliffe-Keenan, by contrast, engendered online support for his proposed riot, but thought better of it and took the Facebook group down. According to the IoC report, his defence was also that the event was a “joke”.

I am not entirely sure what Index on Censorship regards this, in essence, as a a freedom of expression issue. I suppose it might be if they accept that either, or both, of these “events” were jokes: amusing satirical comment on the previous day’s utter destruction and misery in Tottenham. Perhaps this is a defence of the right to engage in black, bad-taste humour.

Fair enough. Except that the Court doesn’t appear to have accepted the claim that the event was posted as a joke. It isn’t at all clear to me that it was a joke. The fact that nobody turned up (although some signed up to come) doesn’t prove that it was meant as a joke, or indeed that those who saw it would inevitably realise it was a joke.

IoC regards it as significant that the riot didn’t happen. However, we don’t regard speech which encourages people to commit crimes to be protected, merely because it fails in its object. If I urge my friends to beat up members of an opposing football team, but they chicken out, I’m no less guilty of inciting them to do so.

Finally, IoC believes that the praise of the “Chinese state media” is a relevant factor. However, China is an authoritarian dictatorship which brutally suppresses legitimate political protest. Encouraging yobs to meet up for a riot round the back of McDonalds isn’t really the same sort of thing.

Prison reformers and those who are interested in sentencing policy might well complain about the use of imprisonment to punish rioters and their accomplices. It is stretching this somewhat, however, to make it a free speech issue.