The first convictions in Britain for publishing racially inflammatory material on the internet were wrong because the publications were outside the jurisdiction of British courts, the Court of Appeal has been told.

Andrew Davies, counsel for Simon Sheppard, told three Appeal Court judges that the material for which his client and co-appellant Stephen Whittle were convicted, much of which was virulently antisemitic, might have been written here. But it was then sent electronically to a web server in Torrance, California, where such material would have been permitted under the American constitution.

Mr Davies also argued that the only people who had seen the material were two police officers and that there was no evidence that it had been seen by any member of the general public. The Crown, he said, had produced no evidence to that effect . “I have been unable to find anywhere any definition of what constitutes a section of the public in English law,” he said.

Sheppard, 51, from Selby, Yorkshire, and Whittle, 42, from Preston, Lancashire, were jailed for four years and 10 months and two years and four months respectively in July. The pair stood trial at Leeds Crown Court last year but fled to America when the jury was halfway through giving its verdicts. They asked for political asylum but a US judge turned down their plea in March and the pair were sent back and jailed.

Now the two men have appealed against conviction and sentence for the offences that involved the electronic transmission of the material.