The sentencing guidelines aren't relevant to Ricky he was found not guilty.
To get into the details a bit more...
Lucy Connolly
- The Offence
was charged with an offense under Section 19(1) of the Public Order Act 1986.
The offense is "distributing written material with the intention of stirring up racial hatred".
To establish guilt (were it contested), the prosecution would have need to prove the following 3 elements
- Publication or distribution of written material.
- The material must be threatening, abusive, or insulting.
- Either:
(a) The defendant must have intended to stir up racial hatred,
or
(b) Racial hatred was likely to be stirred up, considering all circumstances.
Elements 1 and 2 are, obviously, made out.
For element 3, even if Connolly could have persuaded a court that 3(a) was not satisfied - by denying it was her intention - the issue is that the CPS would likely have a far easier time proving 3(b) instead, particularly considering "all the circumstances" involved the riots.
- Defences
There were not a great deal of defences available to Connolly, in terms of whether or not she was guilty.
She may have been able to defend 3(a), by arguing it was not her intent (and perhaps received a lesser sentence if she showed it was unintentional) or used Mental Health or Diminished Capacity as a partial defence.
Undermining even these defences were her private messages, where she indicated her intention to deny responsibility for the tweet or "play the mental health card" if arrested.
2. Sentencing
When it comes to sentencing itself, there are two factors related to the seriousness of the offence that the court had to weigh, to determine the starting point.
The first is Culpability, the second is Harm.
For Culpability, it can be A (mostly serious), B (moderate) or C (least serious, not relevant here).
At the time of initial sentencing, the CPS argued for A, and Connolly agreed. She has now said she acted on bad advice and B would have been more reasonable. She appealed on this basis, at the Court of Appeal, and lost.
The criteria for A and B are below. Please note that not every element needs to be made out - they are guidance of the types of factors that the court must weigh
A - Most Culpable
- Intent to incite serious violence.
- Use of position of influence or trust.
- Premeditated or persistent behavior.
- Use of sophisticated methods.
- Exploitation of public fear or unrest.
- No remorse, or attempts to deflect responsibility.
B - Moderate
- Intent to stir up hatred, but not violence.
- Single incident, not part of a pattern.
- Some planning, but not sophisticated.
- Limited reach.
- May show some remorse or lack of awareness of impact.
I do think that A is the appropriate category, because:
- the Tweet referenced serious violence, not just general hatred;
- Connolly had a history of making racist tweets, so it was not "out of the blue";
- The timing heavily indicates that it was intended to exploit public unrest;
- The tweet was widely shared (and she did have a fairly significant following); and
- Her WhatsApp messages indicated strategic thinking on her part - and that she was aware of the impact of her words, was not remorseful, and was already planning (after the event) how she might evade culpability.
The 3 judges of the Court of Appeal felt similarly.
Harm is also assessed on a 3-tier scale, 1 being the most serious.
I won't go into detail, here, because even on Appeal, Connolly accepted her tweet fell into the highest category, but the following are relevant to Category 1:
- Encourages or incites violence.
- Is disseminated widely or virally, especially via social media.
- Is published in a volatile or sensitive context (e.g., during civil unrest).
- Has a real-world impact, such as contributing to riots.
- Targets vulnerable or marginalized groups in a way that increases risk.
Had her appeal been successful, and established that 1B was appropriate, not 1A, the starting point for sentencing would have been 2 years (range 1-4).
As it is, she was in category 1A (3 years starting point, 2-6 typical range) and her sentence was at the lowest end.
Rick Jones
- The Offence
Was charged under Section 44–46 of the Serious Crime Act.
The offence is Encouraging Violent Disorder.
The elements, which all need to be proven, are:
- The defendant must have done something capable of encouraging others to commit violent disorder;
- The defendant must have:
(a) Intended to encourage the commission of violent disorder,
or
(b) Been reckless as to whether their conduct would encourage it;
- The act must be objectively capable of encouraging violent disorder; and
- The encouragement must relate to conduct that would amount to violent disorder, which itself involves three or more persons using or threatening unlawful violence.
1, 3 and 4 are plainly made out (I'd say).
The second element is the one where Jones successfully defended. Essentially, he argued that:
-
he was referring to "slitting the throats" of those National Front members who had hidden switchblades in public places (this is relevant because nobody knows who the NF members who did that actually were, so there's no obvious target for violence);
-
the crowd did not understand it to be a genuine call to seek out those people and slit their throats; and
-
that his comment was a one-off, spoken in the heated of the moment.
That last part is relevant in assessing "recklessness" under 2(b), because, while a person is "reckless" if they are aware of a risk that their conduct could cause a particular result and, if spoken impulsively, unplanned and in a reactive/emotional context, then "awareness of the risk" is much harder to prove.
2. Sentencing is not relevant really, since Jones was not found guilty.
I really don't think there can be many complaints about how the law was applied to Connolly in sentencing - it was pretty much open and shut. It probably does not help her, either, that unlike with Jones, there were actual attempts - after her tweets - or burning down hotels housing migrants.
Jones, I think, was on the precipice, but I do think it was the right decision. In the absence or corroborating evidence, that demonstrated that he knew and had in his mind at the moment he spoke, seemingly-off-the-cuff, that his words might prompt those at the protest to actually slit people's throats (particularly those NF members who had been hiding switchblades, and whose identities and locations were unknown), I don't think you can prove even the "reckless" intent beyond all reasonable doubt.
However - to throw you a bit of a bone here - I do think there is a reasonable argument that 3(b) of the offence Connolly was charged with should be replaced by something more similar to 2(b) of Jones's - where (at minimum), reckless intent was needed. Had the law given Connolly the ability to deny intent, to avoid being found guilty, she may have felt more able to plead Not Guilty.
We cannot say for sure how a trial of Connolly would have panned out were there a hypothetical "recklessness" requirement - she might have found a sympathetic jury. I would say, though, that even if the law was changed, the evidence against Connolly (on intent) was significantly stronger than the evidence against Jones. My guess is that she would have been found Guilty and then ended up with a longer sentence than the one she got.