Neutral Citation Number: [2001] EWHC Admin 1125 
Case No: CO/3212/01
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2

Friday, 21st December 2001
B e f o r e:

LORD JUSTICE KENNEDY

and

MRS JUSTICE HALLETT

- - - - - - -

PERCY
Claimant
-v-

DIRECTOR OF PUBLIC PROSECUTIONS
Defendant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Intervener
- - - - - -
Computer-Aided Transcript of the stenograph notes of
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 K STARMAR and MR P MENON (instructed by Birnberg Peirce & Partners, London NW1 7HJ) appeared on behalf of the Claimant
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
- - - - - - -
J U D G M E N T

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.
2.	The convictions arose from the appellant's behaviour at an American air base at RAF Feltwell. The appellant is a co-ordinator of an organisation called the “Campaign for Accountability of American Bases” and has experience over many years of protesting against the use of weapons of mass destruction and against American military policy, including the Star Wars National Missile Defence System. She believed that the base at Feltwell would have a part to play in such a system. She defaced the American flag by putting a stripe across the stars and by writing the words “Stop Star Wars” across the stripes. She stepped in front of a vehicle and she placed the flag down in front of it and stood upon it. Those affected by her behaviour were mostly American service personnel or their families, five of whom gave evidence of their distress to varying degrees. They regarded her acts as a desecration of their national flag to which they attach considerable importance. The District Judge rejected the appellant's evidence that she was unaware of the effect of her conduct upon those present. He relied upon various passages of her evidence which, in his judgment, indicated that she understood the importance that many Americans, particularly military personnel, attach to their national flag as a symbol of freedom and democracy. The court concluded from her failure to offer any explanation save that “it was a spontaneous protest” to place the flag on the floor and stand upon it, that her actions were calculated to offend. The court found that the appellant's behaviour with the flag was insulting to American citizens at whom it was directed.
3.	The appellant did, however, satisfy the court that her behaviour was motivated by strongly held beliefs that the “Star Wars” project was misguided, posed a danger to international stability and was not in the best interests of the United Kingdom. She failed to persuade the court that her conduct on the balance of probabilities was reasonable. Having made his findings of fact, which on the evidence called before him are unimpeachable, the District Judge then turned to the impact of Article 10 of the European Convention on Human Rights on section 5 of the Public Order Act. He acknowledged that Article 10 applied and that it protected an individual's right to express views which are unpopular and offensive to others. He highlighted, however, that under Article 10(2) the right is not unqualified. The exercise of the right to freedom of expression carries attendant duties and responsibilities and so may be restricted and made subject to penalties, provided they there are prescribed by law and are necessary in a democratic society (for example, for the prevention of disorder, or for the protection of the rights of others). The court considered in this case the risk of disorder and criminal offences by others to be slight. His only concern, therefore, was as to the protection of the rights of others. So far so good. No one takes exception to his approach to this point.
4.	The District Judge went on to consider, however:
“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.” 
5.	He concluded with these words when dealing with the Article 10 provisions: 
“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.” 
6.	He accordingly held that there would be no violation of the appellant's right under Article 10 in convicting her of an offence under section 5.
7.	The questions posed for this court in the case stated are:
	(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? 
8.	The provisions under Article 10 and section 5 so far as relevant to these proceedings are as follows:
“Article 10(1)
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...” 
9.	Section 5(1) of the Public Order Act reads as follows:
“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.” 
10.	Section 6(4) reads:
“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.” 
11.	Mr Keir Starmer, on behalf of Ms Percy, the appellant, takes no point upon the fact that under section 5(3) the burden is on the accused to establish on the balance of probabilities that her conduct was reasonable. He does, however, take comfort from the fact that the court must be satisfied that the conduct was unreasonable before convicting. This, he says, ensures that the accused's right to freedom of expression under Article 10 of the European Convention is brought into play.
12.	Mr Starmer originally sought a declaration of incompatibility between section 5 of the Public Order Act and Article 10. In argument, however, he accepted the force of the submissions made by Mr Keith, on behalf of the Secretary of State, that the court's discretion to make a declaration of incompatibility under section 4 of the Human Rights Act 1998 is a remedy of last resort. A court shall seek to avoid making a declaration unless the clear and expressed wording of the statute under review makes it impossible. The application of a general rule of interpretation pursuant to section 3 of the Human Rights Act 1998 is required only where the clear words of the statute demand in every case the determination of an issue in such a way that apparently violates a Convention right. A prosecution under section 5 may not engage the right under Article 10 in any way. Mr Keith gave as an example the case of Vigon v the Director of Public Prosecutions [1998] 162 JPR 115 where a man was found guilty of insulting behaviour on the basis that he operated a partially concealed camera in a woman's changing room.
13.	Mr Keith submitted, therefore, that where the matter is one of discretion for the decision-maker on the facts of a particular case, as here, and where there is only the possibility that the operation of the primary legislation might violate a Convention right, there is no requirement to apply the strong interpretative remedy of section 3 by way of general rule or, indeed, the incompatibility provision. If a public authority, including a court, acts in breach of its Convection obligations in an individual case, the proper remedy can be found in sections 6 to 8 of the Human Rights Act 1998.
14.	Mr Starmer focused his submission therefore, rightly in my view, on the ingredients of the effect of section 5 itself, in particular section 5(3) coupled with a consideration of the appellant's right to freedom of expression under the European Convention. He referred us to a number of decisions of the European Court in which the importance of the right to freedom of expression in a democratic society has been highlighted time and time again. The principles are well-established and I do not need to rehearse the passages from every decision. I content myself with a passage from Sunday Times v United Kingdom No (2) [1992] 14 EHRR 123, which reads as follows:
“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.” 
15.	The court went on to repeat that “necessity” means a pressing social need.
16.	Thus, argued Mr Starmer, Article 10 enjoys a special status under the Convention. Indeed, the right to freedom of speech is reflected in the English common law. Freedom of speech extends to protest activity that others find shocking, disturbing, or offensive: “Such are the demands of that pluralism, tolerance and broad-mindedness without which there is no democratic society”: see Handyside v United Kingdom [1979] 1 EHRR 373. Any restrictions on such a fundamental right must be narrowly constrained and the necessity for them convincingly demonstrated.
17.	Flag denigration, he submitted, is a form of protest activity recognised the world over and has been afforded protection in other jurisdictions, for example in the United States of America itself. In Texas v Johnson (1989) 491 US 397, the Supreme Court by a majority held that a conviction for desecrating a venerable object, namely the United States flag, was in breach of the accused's right under the First Amendment to the Constitution to legitimate free speech.
18.	Mr Starmer submitted that where an individual is engaged in peaceful protest so that Article 10 is engaged, it is not enough for the prosecution under section 5 to establish that the individual's conduct is insulting, there must be something more. The necessary additional element, he suggested, might be, for example, a racial or religious element. The behaviour may be directed at a particular person, or to an official carrying out his duties. Where, however, the conduct alleged is insulting with no risk of disorder, as here, he submitted that a review of the European case law indicated that a high threshold had to be overcome for a conviction to remain compatible with the individual's Convention rights. 
19.	He took issue with the District Judge's finding that there was a pressing social need to prevent the denigration of the US flag as an object of veneration and symbolic importance to United States service personnel. The appellant had the right to freedom of expression unless and until the prosecution established it was necessary and proportionate to restrict it. To find that American servicemen found the behaviour insulting and, therefore, it was necessary to protect their sensitivities was, he contended, a circular argument. It failed to address the issue of what it was necessary to do in a free and democratic society. He also submitted that to find, as the District Judge did, that the appellant could have registered her protest lawfully, without resorting to insulting behaviour, was to fail to apply either the right test or a sufficiently rigorous test. By penalising the means by which Ms Percy conveyed her message the court has, in effect, extinguished her fundamental right to convey that message.
20.	Mr Farmer, on behalf of the Crown Prosecution Service, submitted that the Crown did not seek to restrict the appellant's right to protest the “Star Wars project”. She plainly has such a right under Article 10(1), but her right is limited by Article 10(2). The protection of the rights of others under Article 10(2) means, he submitted, that no one has the right to be gratuitously offensive or insulting. It is the use of insulting behaviour rather than the expression of an opinion which has been punished here.
21.	He suggested that Mr Starmer was attempting to go behind the findings of fact made by the District Judge. He concentrated his attention upon those findings. He submitted that none of the authorities to which our attention has been drawn, and which Mr Starmer accepted could each be distinguished on the individual facts, contained the essential element here of a deliberate intention to insult. He submitted that the use of the flag to convey the message was almost irrelevant. What was significant in this case was that knowing how American servicemen feel about the American flag, the appellant deliberately targeted them, intending to insult them and succeeded in so doing. Thus the insults became personal. In fact, as Mr Starmer pointed out in reply, the District Judge found the appellant had been aware of the likely effect of her actions on the American personnel, rather than that she had intended to insult them.
22.	Mr Keith, on behalf of the Secretary of State, only dealt briefly with the declaration of compatibility point in the light of the concession made by Mr Starmer. He was invited, however, to assist the court on how the Secretary of State suggested we should approach the issues in this case.
23.	He took us through section 5, which he submitted provided a sensible and balanced framework for the consideration of whether or not behaviour of the kind alleged here should constitute a criminal offence. Peaceful protest which is insulting is not prohibited. It is for the magistrates' court to determine whether on the facts of an individual's case the accused not only used insulting words or behaviour, but also whether he or she had the necessary mens rea within the terms of section 6(4), and whether or not the conduct was objectively reasonable within the terms of section 5(3). The mens rea test, he submitted, meant that legitimate matters of public debate are generally unlikely to fall foul of section 5. He submitted that the District Judge in this case approached the provisions of section 5 and Article 10 correctly. The only question for this court he said was: were his conclusions justified? Normally, this court would only intervene if it decided the judge had erred in law, or made an irrational finding of fact. In this case, however, he submitted that this court should consider the matter afresh and decide whether or not the appellant's Convention right had been violated. If we are of the opinion that it was, he suggested we should give effect to it by quashing the conviction.
24.	He suggested that the cases put before us on breach of the peace were not helpful because they dealt specifically with the question of the risk of public disorder. This case is different. It concerns, he said, the interrelationship of the message which Ms Percy wished to convey, which is protected by Article 10, and the way in which it was conveyed, by defacing the American flag. If her only intention was to insult the Americans by defacing the flag then Article 10 would not necessarily be engaged. But in this case the District Judge found as a fact that she had attended at the base to protest about “Stars Wars”, and her behaviour was motivated by her very strong beliefs. The question for the court, therefore, was: was the method she chose to convey an otherwise inoffensive message so unreasonable or disproportionate as to deprive her of the protection of Article 10?
25.	I, for my part, agree with Mr Keith that the provisions of section 5 and section 6 of the Public Order Act, as enacted and applied by the courts of this country, contain the necessary balance between the right of freedom of expression and the right of others not to be insulted and distressed. The right to freedom of expression was well established in the United Kingdom before the incorporation of the Convention. Peaceful protest was not outlawed by section 5 of the Public Order Act. Behaviour which is an affront to other people, or is disrespectful or contemptuous of them, is not prohibited: see Brutus v Cozens (1973) AC 854. A peaceful protest will only come within the terms of section 5 and constitute an offence where the conduct goes beyond legitimate protest and moves into the realms of threatening, abusive or insulting behaviour, which is calculated to insult either intentionally or recklessly, and which is unreasonable.
26.	It is significant in my view that sections 5(3)(c) and section 6(4) of the Public Order Act specifically provides for there to be proof of mens rea and for the defence of reasonableness. Even where a court finds that conduct has been calculated to insult and has, in fact, caused alarm or distress, the accused may still establish on the balance of probabilities that his or her conduct was reasonable. The question of reasonableness must be a question of fact for the tribunal concerned taking into account all the circumstances.
27.	Where the right to freedom of expression under Article 10 is engaged, as in my view is undoubtedly the case here, it is clear from the European authorities put before us that the justification for any interference with that right must be convincingly established. Article 10(1) protects in substance and in form a right to freedom of expression which others may find insulting. Restrictions under Article 10(2) must be narrowly construed. In this case, therefore, the court had to presume that the appellant's conduct in relation to the American flag was protected by Article 10 unless and until it was established that a restriction on her freedom of expression was strictly necessary.
28.	I have no difficulty in principle with the concept that there will be circumstances in which citizens of this country and visiting foreign nationals should be protected from intentionally and gratuitously insulting behaviour, causing them alarm or distress. There may well be a pressing social need to protect people from such behaviour. It is, therefore, in my view, a legitimate aim, provided of course that any restrictions on the rights of peaceful protesters are proportionate to the mischief at which they are aimed. Some people will be more robust than others. What one persons finds insulting and distressing may be water off a duck's back to another. A civilised society must strike an appropriate balance between the competing rights of those who may be insulted by a particular course of conduct and those who wish to register their protest on an important matter of public interest. The problem comes in striking that balance, giving due weight to the presumption in the accused's favour of the right to freedom of expression.
29.	I turn to the way in which the District Judge approached the task that confronted him in this case. I remind myself that Ms Percy attended RAF Feltwell intending to protest against the “Star Wars” project, a matter of legitimate public debate. The message she wished to convey, namely “Stop Star Wars” was a perfectly lawful, political message. It only became insulting because of the manner in which she chose to convey the message. That manner was only insulting because she chose to use a national flag of symbolic importance to some of her target audience.
30.	In carrying out the balancing exercise, the District Judge first found 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. For my part, I am prepared to accept that he was entitled to find that such protection was a legitimate aim. The next stage of his task was to assess whether or not interference with the accused's right to free expression by criminal prosecution for using her own property to convey a lawful message in an insulting way was a proportionate response to that aim. The only aspect of the case referred to by the District Judge in this respect was the fact that the appellant's “conduct was not the unavoidable consequence of a peaceful protest against the 'Star Wars' project, which was her stated intention, but arose from the particular manner in which she chose to make her protest.”
31.	The fact that the appellant could have demonstrated her message in a way which did not involve the use of a national flag of symbolic significance to her target audience was undoubtedly a factor to be taken into account when determining the overall reasonableness and proportionality of her behaviour and the state's response to it. But, in my view, it was only one factor.
32.	Relevant factors in a case such as this, depending on the court's findings, might include the fact that the accused's behaviour went beyond legitimate protest; that the behaviour had not formed part of an open expression of opinion on a matter of public interest, but had become disproportionate and unreasonable; that an accused knew full well the likely effect of their conduct upon witnesses; that the accused deliberately chose to desecrate the national flag of those witnesses, a symbol of very considerable importance to many, particularly those who are in the armed forces; the fact that an accused targeted such people, for whom it became a very personal matter; the fact that an accused was well aware of the likely effect of their conduct; the fact that an accused's use of a flag had nothing, in effect, to do with conveying a message or the expression of opinion; that it amounted to a gratuitous and calculated insult, which a number people at whom it was directed found deeply distressing.
33.	In my judgment, at the crucial stage of a balancing exercise under Article 10 the learned District Judge appears to have placed either sole or too much reliance on just the one factor, namely that the appellant's insulting behaviour could have been avoided. This seems to me to give insufficient weight to the presumption in the appellant's favour, to which I have already referred. On the face of it, this approach fails to address adequately the question of proportionality which should have been, and may well have been, uppermost in the District Judge's mind. Merely stating that interference is proportionate is not sufficient. It is not clear to me from the District Judge's reasons, given in relation to his findings under Article 10, that he has in fact applied the appropriate test. Accordingly, in my view, it appears that the learned judge inadvertently, in the course of a very careful and thorough examination of the facts and the law, has fallen into error. I am driven to the conclusion, therefore, that this conviction is incompatible with the appellant's rights under the European Convention on Human Rights and I would answer the first question posed in the case stated: “No”.
34.	I turn to the second question before us. In my view, this case could and should have been dealt with by way of an appeal to the Crown Court and a rehearing. It would be possible now to send the case back to the magistrates' court for a rehearing. The conduct alleged, however, is not of the utmost gravity, albeit no doubt distressing to the witnesses. The appellant was convicted of a highways offence in relation to her conduct on that day which stands unchallenged. I am satisfied that, in all the circumstances, the appropriate course, therefore, is simply to quash the convictions. I would answer the second question posed: “Yes”.
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.
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