QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE HARRISON
|HARRY JOHN HAMMOND||(CLAIMANT)|
|DEPARTMENT OF PUBLIC PROSECUTIONS||(DEFENDANT)|
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MR N SEED QC (instructed by CPS Dorset) appeared on behalf of the DEFENDANT
Crown Copyright ©
"(a) [Mr Hammond] is an Evangelical Christian who has been a preacher for 20 years; he is a sincere man with deeply held religious beliefs and a desire to convert others to his way of thinking.
(b) During the summer of 2001, [Mr Hammond] had a large double sided sign made bearing the words: 'Stop Immorality', 'Stop Homosexuality' and 'Stop Lesbianism' on each side and attached to a pole.
(c) Prior to 13th October 2001, [Mr Hammond] had on at least one previous occasion preached whilst displaying the sign and had received a hostile reaction from members of the public, some of whom attempted to deface the sign and leading to one person trying to set it on fire.
(d) During the afternoon of Saturday 13th October 2001, [Mr Hammond] travelled by bus to The Square, Bournemouth to preach with the sign; during the bus journey [Mr Hammond] covered the sign with a black plastic bin liner as he believed the sign might cause a fracas if displayed inside the bus, because of the reaction he had previously received.
(e) On arriving at The Square, Bournemouth [Mr Hammond] positioned himself by a floral display near the Obscura cafe in the pedestrianised area of the town centre and began preaching holding the sign upright so that it was clearly visible to passers-by.
(f) A group of 30 to 40 people gathered around [Mr Hammond], arguing and shouting; some people in the crowd were angry, others were aggressive or distressed; some threw soil at the appellant; one person was hit over the head with the placard.
(g) Members of the public in the area at the time included: Miss Laura Backley, who was disgusted by the sign and found it annoying and, although not personally insulted, felt it was insulting to homosexuals and lesbians; Ms Michelle Watling who was upset, shocked and insulted by the sign; Miss Kerry Warden who found the sign insulting; Mr Sean Tapper, a homosexual, who lived in the street where the incident occurred and was personally insulted by the sign, upset and angry; and Mr Christopher Roger Mooney, Sean Tapper's partner, who found the sign insulting and distressing.
(h) At one point someone tried to pull the placard away from the [Mr Hammond] during which [Mr Hammond] fell backwards to the ground; [Mr Hammond] got up again and continued with his preaching displaying the sign; at this point a member of the public poured water over [Mr Hammond's] head.
(i) Police Constables Gandy and Elliot attended the scene; Police Constable Gandy found the crowd to be agitated, angry and insulted.
(j) Police Constable Gandy spoke to [Mr Hammond] for several minutes and asked him to take the sign down and leave the area; [he] refused saying he was aware that his sign was insulting because he had had a similar reaction previously but that he intended to return the following Saturday to preach with the sign again.
(k) Police Constables Gandy and Elliott discussed the situation for several minutes, during which time they were approached by members of the public who were outraged that [Mr Hammond] had not been arrested.
(l) Police Constable Elliott was of the opinion that it was not necessary for the police to become involved in the incident or to take any action.
(m) Police Constable Gandy was of the view that the appellant was provoking violence and that it was not safe for her to leave the scene without intervening, and she therefore arrested [Mr Hammond] for breach of the peace."
We have been shown two photographs of the sign that Mr Hammond was holding on that occasion. The sign shows the words which the magistrates have found and also, as it happens, in each of four corners of the sign, are the words "Jesus is Lord".
"Parliament had to solve the difficult question of how far freedom of speech or behaviour must be limited in the general public interest. It would have been going much too far to prohibit all speech or conduct likely to occasion a breach of the peace because determined opponents might not shrink from organising or at least threatening a breach of the peace in order to silence a speaker whose views they detest. Therefore vigorous and it may be distasteful or unmannerly speech or behaviour is permitted so long as it does not go beyond any one of three limits. It must not be threatening. It must not be abusive. It must not be insulting. I see no reason why any of these should be construed as having a specially wide or a specially narrow meaning. They are all limits easily recognisable by the ordinary man. Free speech is not impaired by ruling them out."
Those words were spoken with reference to a section of the Public Order Act 1936.
"Counsel for the claimant submitted the case law justified the following. In order to exercise the now exceptional common law power of arrest, certain conditions must be met in relation to the person who is to be arrested and his conduct:
(1) There must be the clearest of circumstances and a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully -- Foulkes.
(2) The threat must be coming from the person who is to be arrested -- Redmond-Bate.
(3) The conduct must clearly interfere with the rights of others -- Redmond-Bate.
(4) The natural consequence of the conduct must be violence from a third party -- Redmond-Bate.
(5) The violence in (4) must not be wholly unreasonable -- Redmond-Bate.
(6) The conduct of the person to be arrested must be unreasonable -- Nicol.
I consider that this accurately states the law. Of course I accept that it is desirable that violence be prevented. It is also desirable that citizens neither doing nor threatening any wrong are not deprived of their liberty."
" . . . the court would surely not find a s.115 complaint [a breach of the peace] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable -- as, of course, it would be if the defendant's conduct was not merely lawful but such as in no material way interfered with the other's rights."
Those two quotations concern cases which were dealing with alleged breaches of the peace and the thorny problem is resolved, in so far as the case is resolved, by holding that a person exercising freedom of expression or otherwise acting lawfully may, nevertheless, be subject to arrest if the natural consequence of their conduct must be violence from a third party and that that violence, albeit it may itself be unlawful, would not be wholly unreasonable.
"(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 . . .
(3) It is a defence for the accused to prove . . .
(c) that his conduct was reasonable."
Section 6 is relevant as to the mental element involved in such an offence. Section 6(4) provides that:
"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."
"(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 or impartiality of the judiciary."
So it is of cardinal importance that everyone has the right of freedom of expression. That right may only be restricted in accordance with the second subparagraph of this article. One of the circumstances has to be that the restriction was prescribed by law. Another has to be that it is necessary in a democratic society, in particular, with reference to this case, for the prevention of disorder or crime.
"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."
The need for the restriction must be convincingly established by a compelling countervailing consideration and the means employed must be proportionate to the end sought to be achieved.
"(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in worship, teaching, practice and observance.
(2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society, in the interests of public safety, for the protection of public order, health or morals or for the protection of the rights and freedoms of others."
"(a) The words displayed on the sign, 'Stop Immorality', 'Stop Homosexuality' and 'Stop Lesbianism', were in fact insulting and caused distress to persons who were present.
(b) The appellant was aware that those words on the sign were insulting; he admitted this to Police Constable Gandy. His awareness was also demonstrated by his actions in covering the sign with a black plastic sack whilst travelling on the bus, and by acknowledging that he had received a similar reaction in the past.
(c) The restriction of the appellant's right to freedom of expression had the legitimate aim of preventing disorder in view of the reaction of people in the crowd to the appellant's sign.
(d) There was a pressing social need for the restriction and the restriction corresponded to that need; the words on the appellant's sign were directed specifically towards the homosexual and lesbian communities implying that they were immoral and there is a need to show tolerance towards all sections of society; the sign was displayed in the town centre on a Saturday afternoon provoking hostility from members of the public.
(e) The interference with the appellant's right to freedom of expression by prosecuting him for an offence under section 5 of the Public Order Act was a proportionate response in view of the fact that the appellant's behaviour went beyond legitimate protest, was provoking violence and disorder and interfered with the rights of others.
(f) Although the appellant knew that insult, distress and disturbance was likely to be caused by using the placard having received a similar reaction in the past he refused to take the sign down or leave in response to Police Constable Gandy's request.
(g) In these circumstances the appellant's conduct was not reasonable."
They accordingly found that he was guilty of the information. They imposed a fine of £300 and ordered him to pay £395 towards the prosecution costs and also ordered the forfeiture of the sign.
"(a) In the circumstances of this case were we correct to find that the appellant's right to freedom of expression under Article 10 of the European Convention on Human Rights should be qualified and restricted for the prevention of disorder or crime?
(b) In the circumstances of this case were we correct to find that the arrest and prosecution under section 5 of the Public Order Act 1986 was necessary and justified and therefore a proportionate response?
(c) In the circumstances of this case were we correct to convict the appellant of the offence under section 5 of the Public Order Act 1986?
(d) Is the answer to question (a) above affected by the fact that the claimant was seeking to proselytise, within the meaning of Article 9 of the European Convention on Human Rights?
(e) Is the answer to questions (a) and (b) above affected by the application of section 13 of the Human Rights Act 1988?
(f) Do Articles 9 and/or 10 read in conjunction with Article 13 of the European Convention on Human Rights require the authorities to protect individuals such as the claimant, in the circumstances of this case, where violence and/or threat of disorder emanated from others present?"
It seems to me that those questions usefully encompass the considerations which this appeal gives rise to but the question which the court ultimately has to consider is whether, on the facts found by the justices, Mr Hammond was properly convicted of an offence under section 5 of the Public Order Act 1986. That involves analysing the effect and application of Articles 9 and 10 of the Human Rights Convention upon that question. Mr Tomlinson, in my judgment correctly, accepts that these Articles, and indeed the Human Rights Convention generally, does not, as such, provide a defence to the information but he submits, again, in my judgment correctly, that human rights considerations have to be brought into play in an appropriate way when the offence created by this section is looked at and when the facts as found by the justices are applied to it.
"As this court said in Percy, a prosecution under section 5 does not per se engage Article 10. It depends on the facts and the drawing of an appropriate balance of competing interests under Article 10.1 and 10.2, bearing always in mind that the restrictions in article 10.2 should be narrowly construed and convincingly established. As I have indicated earlier in this judgment, in the absence of a challenge to the compatibility of section 5 with the convention [I think he means section 5 of the statute], the mechanics of the Article's operation on a prosecution under it seem to me to be confined to the objective defence of reasonableness in section 5(3). It cannot bear in any reasoned way on whether the prosecution had proved the two limbs under section 5(1), first, intentional or foreseen insulting conduct and, second, an objective likelihood of harassment, alarm or distress."
Certainly the second part of that is not entirely consonant with the views that I expressed earlier in this judgment. The first part of it, however, is and it does seem to me, that when the justices are considering whether Mr Hammond established a defence of reasonableness under section 5(3) of the statute, they should -- and as I believe in this case, did -- bring into play all the relevant questions concerned with Article 10 of the convention.