On Friday 11 July 2008 Simon Sheppard was found guilty of eleven counts of ‘publishing material deemed likely to be racially inflammatory’ – all relating to internet distribution from Torrance, California – words protected by the First Amendment! Luke O’Farrell was found guilty on five counts also relating to internet publishing. The case had some analogies with the (failed) extradition hearings in London for Dr Toben’s deportation for trial in Germany for ‘holocaust denial’ and with the Zundel trial. However the German government claims jurisdiction over German nationals even if they post material on the internet abroad and/or live abroad. In the case of the Heretical Two an English court went further still by asserting jurisdiction over writings on the internet if they could be downloaded in England.
Simon’s remaining seven charges were considered by the jury the following Monday. These related mainly to printed material on which the jury was unable to reach a decision. However, they left over the weekend for Ireland, then flew to Los Angeles International Airport (LAX) and surrendered to officials in order to seek political asylum in the USA.
The law over internet publishing in the UK had been reinterpreted without debate to end freedom of speech on the internet, presumably acting on the orders of their masters in the EU and the Heretical Two were facing the imminent prospect of lengthy prison sentences. They were held by the Department of Homeland Security (DHS) at Santa Ana Jail, California, USA. Correspondents were asked not to place return address stickers on envelopes as all letters with labels of any kind were being sent back marked ‘unauthorized.’ They could only send two replies per week so used this site to thank the many people who had already written with messages of support and requested they kept writing, as it all helped. They also thanked those who contributed to the defence funds.
The first Immigration Court session was held on 17 September with Bruce Leichty who was hired as their defence attorney. The judge claimed that she did not have the power to release the Heretical Two under the defensive procedures adopted by the US authorities. The ‘asylum-only proceedings’ for the Heretical Two were heard by immigration judge Rose Peters on 14 October. An attempt to get them released before the asylum ruling was denied by the judge, whose reasoning appeared contradictory. At the ‘calendar meeting’ of the Immigration Court on 13 November the judge scheduled the Merits (main) hearing for three afternoons in blocks of four hours each, starting at 2pm on 10, 12 and 24 March 2009.
Ironically the H2 were detained in an American jail for activities which the British government now deems to be crimes, i.e. exercising the right to free speech, but which are not held to be crimes under American law.
In December 2008 Simon’s retrial was held in his absence, as the British government was not prepared to wait for the outcome of the political asylum proceedings in the US. The new trial commenced on 8 December at Leeds Crown Court and six charges were considered – one charge was dropped. On 22 December the trial was deferred to 5 January 2009 – the following day the jury went out to deliberate and on 8 January found Simon guilty on three counts relating to Tales of the Holohoax and later in the day, by a majority verdict on two charges relating to Don’t be Sheeple – even Professor Rabkin’s cogent arguments that the Jews were a religion and not a race had failed to impress the jury.
The establishment had so far effectively managed to contain reporting on the trials and asylum attempt to cold and slanted reports in the Yorkshire and Lancashire media, without any discussion of the many issues arising from the case. The H2 belatedly obtained considerable publicity in this area – the Yorkshire Post carried the most extensive reports, but was extremely biased, to the point of dishonesty.
The Heretical Two’s asylum hearings of 10, 12 and 24 March 2009 proceeded before US Immigration Judge Rose Peters. The Merits hearing on 10 March lasted only 90 minutes and concerned documentation. Simon Sheppard and Stephen Whittle were brought into court in handcuffs and leg irons each time, which, they confirmed, was standard procedure when asylum seekers are held in detention pending the hearing of their case, and not any particular victimization. The H2 presented their own cases. The US government was represented by its attorney, Ms. Myers. The Court heard evidence from Simon and Stephen about their experiences at the hands of the British police and Crown Prosecution Service, and also during one hearing from Sheppard’s English counsel, Adrian Davies, who gave evidence about the relevant provisions of English law (the Public Order Act 1986, as amended) and the English Court’s assertion of jurisdiction over web pages hosted on a server located in Torrance, California. Inevitably Simon and Stephen were at some disadvantage, because they are not lawyers, and are moreover being held in prison, where they have had very limited facilities to prepare for the hearing.
After the lengthy sitting on 12 March, the Court adjourned to 1pm on 24 March, when Simon and Stephen addressed the Court on their own behalf, and Ms. Myers made representations on behalf of the US government. On 24 March, Judge Peters heard closing arguments from Ms. Myers, counsel for the US government, and Messrs Sheppard and Whittle on their own behalf. At the conclusion of the arguments, HHJ Peters reserved judgment, which was to be handed down in writing in due course. Since the case of the Heretical Two involved unusual questions of fact and law and more documentary evidence than is usual in asylum hearings, the judge’s decision to reserve her judgment was unsurprising. It was to be delivered within 30 days. In the meanwhile, Messrs Sheppard and Whittle remained in Santa Ana Jail.
The Leeds Crown Court hearing on 30 March was deferred until 15 May to await the decision of the American asylum hearings. There was further limited reporting in the UK – in the Yorkshire Post 31 March and Hull and East Riding News on 28 March.
The Heretical Two were informed that they had lost their Claim for asylum on 5 April 2009. In fact Judge Peters had previously supported the cause of Sean Kelly (O’Cealleagh), granting asylum to this IRA member because “it was a purely political case.” Kelly was one of three men sentenced to life for the public beating, stripping and shooting of Corporals Derek Wood and David Howes in Belfast in 1988. He had been released under the terms of the Good Friday Agreement, relocated to the USA, and then post-9/11 served with a deportation order. The H2 had 30 days to appeal against the decision, but Simon subsequently contacted the authorities to say that they would not appeal. Simon and Steve were deported from LAX on June 16 and arrived in London on June 17, where they were arrested, taken quickly to Leeds Crown Court, and then to prison. The Heretical Two would like to express their sincere thanks to all their American supporters who wrote with letters of support, visited and sent in funds.
In retrospect it is obvious that Judge Peters decision was pre-determined. Ms. Myers submissions consisted almost entirely of internet print-outs of provisional proposals for EU Directives seeking to make certain material on the internet unlawful. This suggests very strongly that Ms. Myers had been told that her case need only have cursory preparation, since the outcome was a foregone conclusion. Peters and Myers had been a duo since at least the days of the Sean Kelly decision.
On 10 July 2009 the Heretical Two were returned to Leeds Crown Court again for sentencing. Simon received a very harsh sentence of 4 years and 10 months and Stephen two years and four months. Simon’s sentence comprised 12 months concurrent on the three counts relating to Tales of the Holohoax, followed by a consecutive sentence of 12 months in aggregate on the two counts relating to Don’t Be Sheeple, followed by two years and six months in aggregate on the eleven Internet counts. In addition he was given four months on the Bail Act charge, for failing to re-attend court after having fled to the USA.
On 14 July the Court of Appeal (Richards LJ, Jack J and HHJ Baker QC) gave leave to appeal against conviction on all the Internet counts, but refused leave to appeal with respect to the hard copy counts.
A forfeiture hearing took place on 31 July before Judge Grant at Leeds. The judge decided every contested point against Simon and contravened the letter, as well as the spirit, of the law, as many items had been illegally seized by the police during their three raids. He ordered the forfeiture and destruction of large amounts of valuable office equipment – mainly comprising large printers, which Simon had serviced. An appeal lodged against sentence re. forfeiture of the printers, computers and other office equipment was heard at the same time as the internet publishing appeal, i.e. not within the statutory twenty-one days. This full appeal hearing before three judges was held on 26 and 27 November 2009 at the Law Courts, Strand, London.
An appeal is being made to the European Court of Human Rights over the decision by the Leeds judge not to review the notorious decision in Reg. v. Birdwood when Judge Pownall’s decision that “the truth is no defence” in race cases was upheld. This appeal should result in some useful publicity in a few years’ time. Stephen was moved from HMP Leeds (Armley prison) to the lower category Everthorpe Prison in East Yorkshire, but Simon remained at Armley voluntarily as a category C prisoner, as he had “a decent job in the print shop.” On 29 January 2010 news was received that the appeal against conviction on internet publishing on a foreign website was lost. The order for forfeiture of Simon’s publishing equipment was upheld also.
Fortunately, the appeal judges ruled the sentences were excessive and reduced Simon Sheppard’s sentence by a year to 3 years and 10 months and Stephen Whittle’s sentence by six months to 1 year and 10 months. Leave to appeal against sentence was granted on internet publishing, but appeal with respect to the forfeiture of goods order was denied. A subsequent appeal court hearing certified “points of law of general importance” which enables the H2 to directly petition the Supreme Court for the right to appeal on these points.
The Supreme Court of the United Kingdom, formerly the judicial committee of the House of Lords, refused the H2 leave to appeal (no surprise there then!!!). It is the practice of this Court not to give reasons for refusing leave to appeal, whereas it would be considered an error of law for any other court not to give reasons for its decision. The H2 are now entitled to petition the European Court of Human Rights for leave to appeal to that court, which they could not do before, as would-be petitioners are obliged to exhaust all domestic recourse first. All Simon’s publishing equipment has now been destroyed by the authorities – who are no doubt exuding quiet satisfaction over a ‘job well done.’
On 15 July 2010 Simon Sheppard was moved from Armley to a privately run prison – HMP Wolds – and was ‘downgraded’ to a category D prisoner. on 17 December 2010 he was moved again – this time to HMP Sudbury in Derbyshire. This is an open prison and has a good reputation and extensive grounds, but has large numbers of Moslem prisoners and “racist incident report boxes everywhere you looked.” On 22 December, five days later, three prison officers arrived at 7.30am and he was handcuffed to a Negro officer, in a deliberate attempt to provoke him. He was then banged up in a segregated holding cell to await transport back to HMP Wolds. The Prison governor arrogantly refused to explain the reason for this summary action, but Simon was later informed that his ‘offence’ put him in a special security classification which meant that HMP Wolds could not allocate him – a higher office had to give permission, and this procedural irregularity had given the prison governor the excuse he wanted. Thus he was shipped back to HMP Wolds. His treatment, ostensibly, had nothing to do with his behaviour at HMP Sudbury, but likely much more to do with his views and and those of his supporters. Simon was kept at HMP Wolds in East Yorkshire until 17 May 2011.
He was then released from prison under licence, and escorted directly to a bail hostel in York. He is now subject to ‘MAPPA3,’ the only one in North Yorkshire, as he is classed as one of the ‘critical few’! This regime involves two roll calls per day, case conferences by senior police officers and the probation service, and no internet access. “MAPPA3 is for high risk, or high profile offenders, it is not exclusively for sex offenders.” The usual stay at the hostel is 12 weeks, but he could be obliged to stay there until the expiry of his licence in 2013 – depending on various factors, such as availability of somewhere else to live. This is a back door way of increasing his sentence and he has been treated as if he were a recidivist criminal, or a dangerous paedophile. However, the hostel is small and at least he is now be able to go out and visit a library, park, or cafe...
Simon reports that he is spending his time productively and is writing a book on psychology.