QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GOLDRING
| MARK ANTHONY NORWOOD
|- and -
|DIRECTOR OF PUBLIC PROSECUTIONS
Mrs Janet Pitt-Lewis (instructed by Crown Prosecution Service) for the Respondent
Hearing dates : 11th June 2003
Crown Copyright ©
The nature of the statutory offence charged
"(1) a person is guilty of an offence if he; …. (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
(2) An offence under this section may be committed in a public or a private place ….
(3) 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 duress, or (b) that he was inside a dwelling and had no reason to believe that the words or the behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or (c) that his conduct was reasonable."
"A person is guilty of an offence under section 5 only if he intends … the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting …"
The case stated and the structure of the statutory offence
"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 unreasonable before convicting. 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 … is brought into play."
"… Free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. …"
To similar effect are the words of Lord Nicholls of Birkenhead, giving the leading speech in Reynolds v. Times Newspapers Ltd  2 AC 127, a defamation case, at 200E-F:
"Under section 12 of the Human Rights Act 1998 ….. the court is required, in relevant cases, to have particular regard to the importance of the right to freedom of expression. The common law is to be developed and applied in a manner consistent with article 10 … and the court must take into account relevant decisions of the European Court of Human Rights … To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved."
Proof of the section 5 offence in its aggravated form
Article 10 and the section 5(3) defence
"(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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
Mr Justice Goldring