Welcome to this week’s Weekly Constitutional, where a judgment or other formal document is used as a basis of a discussion about law and policy. This week’s legal texts are section 19 of the Public Order Act 1986 , the sentencing guidelines for that offence and the judgment in the appeal against sentence of Lucy Connolly.
On 2nd September 2024, Lucy Connolly pleaded guilty at the Crown Court to an offence with a maximum sentence of seven years. On 31st October 2024, she received a sentence of two years and seven months. This week that sentence was upheld on appeal.
There has been media controversy about this sentence. This post sets out how that sentence was arrived at and why the appeal was unsuccessful. In essence, given her guilty plea and the law and sentencing guidance, it is difficult to see how the Crown Court and Court of Appeal could have decided differently.
The offence was in respect of a tweet sent by Connolly on 29th July 2024. The text of the tweet was:
Mass deportation now. Set fire to all the fucking hotels full of the bastards for all I care. While you’re at it, take the treacherous government and politicians with them. I feel physically sick knowing what these families will now have to endure. If that makes me racist, so be it.
The context of the tweet was, of course, the horrific murder in Southport of three children and the (false) internet speculation that the murderer was an illegal immigrant. The tweet was viewed 310,000 times and reposted 940 times before it was taken down three and a half hours later. Later there was widespread disorder and criminal damage across the UK.
Connolly was arrested twice and interviewed, and was charged under section 19(1) of the Public Order Act 1986, which provides a person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if they intend thereby to stir up racial hatred, or having regard to all the circumstances racial hatred is likely to be stirred up thereby.
This is a serious offence. The Crown Prosecution Service could have prosecuted under a different offence with a lesser maximum sentence than seven years, but this was the one it selected, no doubt because of the disorder that followed the Southport murders.
Once charged Connolly, like any defendant to a criminal charge, faced a crucial and consequential decision: whether to plead guilty or not guilty. At her appeal against sentence (she could not appeal easily against the conviction as she had pleaded guilty), her barrister said that offending tweet was “angry hyperbole”, an expression of misdirected anguish and rage, and could not be regarded as an incitement to serious violence.
If this was Connolly’s view, then it was open to her to plead not guilty. The offence required either intent or having regard to all the circumstances racial hatred is likely to be stirred up thereby. If that was not actually the case, and it was instead an expression of anguish and rage, then unless the prosecution could show either intent or that the circumstances warranted a conviction, she would not be criminally liable.
But one problem, of course, with her pleading not guilty was that if she was then convicted she would lose any discount on her sentence. The other problem was the wording of her tweet which, the prosecution maintained, showed an intent to stir up racial hatred. Given this situation, Connolly decided to plead guilty.
There was also a further issue that she had to address. The prosecution case was that there was high culpability, in that there was an intention to incite serious violence and that her message also directly encouraged activity which threatened or endangered life. This placed the offence on the A1 category of the relevant sentencing guidelines, which meant a starting point of three years in prison, which could go up to six years.
Connolly thereby faced a second difficult and consequential decision. She could accept the prosecution case or she could put down a different “basis of plea” which would place her in a lesser category for sentencing.
If she did the latter, however, and that was not accepted by the prosecution, there would have to be a so-called Newton hearing, where the judge would establish the relevant facts. And the risk here was if she did this, and lost, she again could lose any discount on the sentence. She took legal advice and decided, probably wisely, not to contest the prosecution version.
The sentencing judge imposed a sentence of three and a half years—the starting point plus six months. Because of the guilty plea and by reason of her not forcing and losing a Newton hearing, that 42-month sentence was then reduced to 31 months. Had Connolly been convicted after a trial, or had her basis of plea been rejected at a Newton hearing, her sentence would have been more.
On appeal against sentence, Connolly maintained that she was sentenced on the wrong basis—that it was in fact a B1 sentence under the guidelines. If this was the case then, of course, she could have contested the prosecution position at a Newton hearing at the Crown Court. But she said that her legal advice from her solicitor had been deficient.
To make this out for the appeal she waived her legal advice privilege and—rare in an appeal case—the Court of Appeal took witness evidence from the solicitor. That examination and cross-examination of her lawyer was not, however, to the benefit of Connolly. The solicitor was able to show that she had been fully and properly advised. Making such an accusation against her solicitor was a high-risk move and it backfired badly.
Connolly’s other ground of appeal—her personal mitigation—seemed more promising. She had herself suffered a dreadful tragedy involving her own child, and she believed that the sentencing judge should have had more regard to this in mitigation. Perhaps had she focused on this one ground rather than making inaccurate claims about her legal advice the appeal, judges would have been more sympathetic.
But the problem with this personal mitigation was, in the appeal court’s view, that it was hard to connect with the text of the tweet sent. As the appeal judgment states “she did not post a message of support and sympathy to the victims of the Southport attack and the bereaved. Nor, we would add, did she post a message of hostility confined to the perpetrator of the Southport attack. She chose instead to incite serious violence against large numbers of persons. The applicant’s personal history cannot significantly reduce her culpability for that serious offence.”
Her other mitigation, which her solicitor advocate emphasised at trial—that she took down the tweet within hours, and then posted an apology and retraction—was more practically relevant to the tweet sent, but the sentencing judge did not place great weight on that, possibly because of the content of other contemporaneous tweets and WhatsApp messages sent by Connolly. It would appear from paragraph 53 of the judgment that this practical mitigation was not emphasised at the appeal.
Stepping back, a sentence of 31 months imprisonment (discounted from 42 months) is an onerous sentence for any speech act. But the law provides that certain speech acts, such as threats to endanger life and stirring up racial hatred, can carry such high sentences.
Here the original two-year maximum sentence of the 1986 Act was increased to seven years in 2001, no doubt as part of that year’s crackdown on crime. If the view is that such sentences are inherently too harsh for speech acts, then it is the law which needs amending, rather than complaining at its application.
Once Connolly was charged with the section 19 offence, with the prosecution asserting there was A1 culpability, she faced a sentence of imprisonment of up to seven years in theory, and up to six years with a three-year starting point in practice.
Given the text of the tweet, she was sensible to plead guilty and to also not force a Newton hearing. That was certainly what she was advised to do by her competent and diligent solicitor. Had she not heeded that advice, her sentence could have been substantially longer than 31 months.
