Explaining a 31-month sentence for a tweet

For some a prison sentence – or indeed any criminal sanction – for a speech act needs an explanation.

An offence for a speech act can seem different to, say, where there is tangible damage to the person or to property.

You say [x] aloud, or you type and publish [y], and you go from not having criminal liability to having criminal liability, because of the words that you used.

But there are many offences which come down to speech acts: many forms of fraud, breaches of the Official Secrets Act, planning or inciting crimes, obscene publications, terrorism offences, and various forms of threatening behaviour.

All are about just words, and all are offences.

In fact there are more criminal offences about speech acts than many realise.

There are all sorts of crimes that one commit by saying the wrong thing at the wrong time in the wrong way.

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There was media disquiet about the 31-month sentence for Lucy Connolly in respect of a tweet which was online for about three and a half hours. Some have criticised the judges for the sentence.

I have written about this case at Prospect – please click and read here.

Here I just want to add some further comments, as I have a longstanding interest in social media and criminal liability (and I was once the successful appeal solicitor in a leading case in this area).

There were three key decisions which led to this sentence – none of which were taken by any judge in this case. Indeed, these three decisions taken together left the court with little choice as to the range of sentences.

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The first decision was that of Parliament.

In 2001 the maximum sentence for relevant offence under the Public Order Act was increased from two years to seven years:

This meant that anyone convicted under the offence at the Crown Court would necessarily have a starting point for their sentence higher than before. This is a form of sentencing inflation which governments of all parties do again and again, for their regular ritual of being “tough on crime”.

And the seven year range is reflected in the sentencing guidelines:

Sentencing guidelines, to adapt Parkinson’s law, tend to expand to fill the maximum sentence available.

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The second decision was that of the Crown Prosecution Service in electing to charge Connolly under section 19 of the Public Order Act 1986:

This is quite a serious offence. The CPS could have elected to charge her under a lesser offence, such as under section 127 of the Communications Act 2003, which has a maximum sentence of six months.

But the CPS chose not do this, no doubt because of the violent disorder that happened following the tweet.

You will see that the offence charged has two elements.

First, person has to publish or distribute “written material which is threatening, abusive or insulting”. This is a question of fact.

Second, if a person has published or distributed such written material, that the person “intends thereby to stir up racial hatred, or […] having regard to all the circumstances racial hatred is likely to be stirred up thereby.”

Here we come to the intention of the person – or to the circumstances of the publication.

In this case, the CPS adopted the position that Connolly (a) published or distributed “written material which is threatening, abusive or insulting” and (b) she intended to stir up racial hatred. The CPS did not rely on “all the circumstances”. They insisted she had intent.

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The third decision was that of Lucy Connolly herself.

She decided to plead guilty.

At her appeal against sentence, her barrister said the tweet was hyperbole:

However, if this was actually the case and Connolly had intended only to vent and that she had not published anything that was “threatening, abusive or insulting” to be taken seriously, then she should have considered pleading not guilty.

But once she pleaded guilty without disputing the CPS position on intent, she necessarily admitted that (a) the words were “threatening, abusive or insulting” and that (b) she intended to stir up racial hatred.

She could have pleaded guilty but disputed intent, but if the CPS did not accept this she would have faced a “Newton Hearing” mini-trial, and if the judge went against her, she could lose any discount on sentence.

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All these decisions were made by others and not the judge at first instance or the judges on appeal.

Connolly decided to plead guilty, to a serious charge decided by the CPS, under an offence which parliament decided had a maximum sentence of seven years.

If any of these decisions had been different then there could have been a different sentence – or, if Connolly had been found not guilty, no sentence at all.

Connolly was advised that the wording of her tweet made it likely that a court would convict:

She was advised that it was likely that a jury would decide that (a) the words were “threatening, abusive or insulting” and that (b) she intended to stir up racial hatred.

Faced with that advice, she had to decide whether to plead guilty and get a discount on sentence or plead not guilty and risk a longer sentence.

As it was the Crown Court judge imposed a 42-month sentence discounted to 31 months – that is two years and seven months discounted from three and a half years.

Given that she accepted she had intent, and given the sentencing guidelines, there was little the court could have done otherwise.

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Personally I think the court could have put more weight on the practical mitigation that she took the post down herself within hours. That is something to be encouraged when otherwise offending things are published, however vile. (I don’t think the personal mitigation was relevant, for the reasons given by the court of appeal.)

But even taken this practical mitigation at its highest, it would not have much reduced the sentence.

If you think the seven year maximum sentence is too high (thereby meaning that the starting points for sentences are also high) then your complaint is with parliament.

If you think the CPS over-charged and should have gone with a lesser offence then your complaint is with the CPS.

And if you think that Connolly’s tweet was not “threatening, abusive or insulting”, and that she did not intend to stir up racial hatred, then this means you think Connolly should not have pleaded guilty to the charge brought.

For it was these three decisions, and not any decision of the court of any judge, that explain the sentence imposed on Connolly.