QUEEN'S BENCH DIVISION
B e f o r e :
MRS JUSTICE HALLETT
|DIRECTOR OF PUBLIC PROSECUTIONS||Defendant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Intervener|
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
MR J FARMER (MISS G GIBBS for judgment) (instructed by Crown Prosecution Service, Norfolk) appeared on behalf of the Defendant
MR HUGO KEITH (instructed by The Treasury Solicitor) appeared on behalf of the Intervener
Crown Copyright ©
1. MRS JUSTICE HALLETT: On 11th and 18th May 2001 the appellant stood trial at the Thetford Magistrates' Court on charges of obstructing the highway and using threatening, abusive and insulting words or behaviour likely to cause harassment, alarm or distress contrary to section 5 of the Public Order Act 1986. It is only the latter charge which concerns this court. District Judge Heley having heard evidence and submissions convicted her of both offences and she was fined a total of £300 and ordered to pay costs. The maximum penalty on conviction for an offence under section 5 is a fine of £1000.
"The need to protect the rights of American service personnel and their families occupying the base to be free from gratuitously insulting behaviour in the ordinary course of their professional and private lives and their right to have their national flag, of significant symbolic importance to them, protected from disrespectful treatment."
"The court found two aspects of this balancing exercise to be of particular significance. First, it was satisfied that there is a pressing social need in a multi-cultural society to prevent the denigration of objects of veneration and symbolic importance for one cultural group. Secondly, it was quite clear that the defendant's conduct which offended against section 5 was not the unavoidable consequence of a peaceful protest against the 'Star Wars' project, which was the defendant's stated intention, but arose from the particular manner in which the defendant chose to make her protest. The court finds the restrictions and penalties attached by section 5 to the defendant's article 10 right to freedom of expression to be necessary in a democratic society for the protection of the rights of others and proportionate to the need to protect such rights."
(i) Was the appellant's conviction under section 5 of the Public Order Act 1986 compatible with Article 10 of the European Convention on Human Rights and Fundamental Freedoms?
(ii) If the answer to question (i) is "No", should the appellant's conviction under section 5 of the Public Order Act be quashed?
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder or crime ... for the protection of the reputation or rights of others..."
"A person is guilty of an offence if he-
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour...
Subsection (3) reads as follows:
"It is a defence for the accused to prove- (a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or...
(c) that his conduct was reasonable."
"A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly."
"Freedom of expression constitutes one of the essential foundations of a democratic society subject to paragraph (2) of Article 10. It is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb. Freedom of expression as enshrined in Article 10 is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established."
35. LORD JUSTICE KENNEDY: I agree.
MR MENON: My Lord and my Lady, could I apply for the appellant's costs from the respondent, subject to a detailed assessment if not agreed, and also apply for a detailed assessment of the appellant's cost subject to the CSL's Regulations?
LORD JUSTICE KENNEDY: Speaking for myself, you need to persuade me about costs. My Lady indicated a moment or two ago that in normal circumstances we would send the matter back for a rehearing.
MR MENON: My Lord, yes.
LORD JUSTICE KENNEDY: Why should costs not lie where they fall?
MR MENON: My Lord, clearly it is entirely a matter for the discretion of the court, and all I can reasonably say, in my respectful submission, is that this was a case of considerable public importance.
LORD JUSTICE KENNEDY: I appreciate that.
MR MENON: The implications are far-reaching, as my Lady's judgment indicated, and in those circumstances, given the findings as far as the District Judge's decisions are concerned, this, in my respectful submission, would be an appropriate case for the respondent to pay the appellant's costs. But I do not think I can reasonably add anything to that.
LORD JUSTICE KENNEDY: She is publicly funded, I gather from what you have just said?
MR MENON: She is, my Lord.
LORD JUSTICE KENNEDY: No, you may have the appropriate order for taxation but no other order in relation to costs.