England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		27 September 2005

Tuesday, 27 September 2005

MR JUSTICE MOSES:

1. This is an unfortunate case. It is an appeal by way of case stated brought by the appellant who has been convicted of an offence under section 4A(1) of the Public Order Act 1986. It is unfortunate because it was brought on urgently before a single judge in vacation court because there are apparently other proceedings arising out of it. Normally where so fundamental a right is engaged, namely that under Article 10, as the judge in charge of the Administrative list said, it should be decided by a Divisional Court; but the exigencies of time were such that it has come before me as a matter of urgency.

2. The appellant was convicted under section 4A(1) of the Public Order Act 1986 by the Luton Justices on 18 March 2004. He appealed and his appeal was heard at the Crown Court at Luton on 18 and 19 October 2004. It was an old case that took up the time of the Crown Court for two days.

3. The facts found by the justices are set out in the case stated, which reads as follows:

"1. On the 18th March 2004 the appellant was convicted by Justices for the County of Bedford sitting at the Luton Magistrates' Court of an offence contrary to section 4A(1) Public Order Act 1986 in that he 'on 4.6.2003 at Luton Guruwarda, 2A Dallow Road, Luton with intent to cause Jasvinder Singh Nagra harassment, alarm or distress displayed any writing, sign, or visible representation which was threatening, abusive or insulting, thereby causing that person or another harassment, alarm or distress'.

2. By Notice dated the 29th June 2004 the appellant appealed against his conviction and the grounds of the appeal were 'I deny that I acted in an antisocial manner which was likely to cause harassment, alarm or distress to anyone. I attended at The Temple merely to express my religious views. I did not behave in any way other than entirely peacefully. The court relied upon an incorrect translation of a poster I had prepared'.

3. The appeal was heard at the Crown Court at Luton by way of rehearing on the 18th and 19th October 2003. I was the presiding judge and Mr I Rutherford and Miss M Baird, Justice of the Peace, sat with me.

4. Whilst little effort appeared to have been made to adopt the wording of the charge against the appellant to the facts of the case, no point was taken as to that and we were satisfied that the appellant clearly understood the nature of the prosecution case.

5. We made the following findings of fact:

(a) on the 4th June 2003 the appellant, who at all material times resided in the Birmingham area, entered the Sikh Temple (or Guruwarda) at 2A Dallow Road, Luton, Beds ('the Temple') and affixed to the notice board a notice ('the notice') a true copy whereof is annexed hereto and marked 'A';

(b) the notice was in Punjabi and had been prepared by the appellant and an agreed translation thereof is annexed hereto and marked 'B'. [The dispute as to the accuracy of the translation was resolved by adopting the translation prepared by the appellant's interpreter which, despite its apparent shortcomings and save for minor matters of no material consequence, was agreed by the interpreter instructed by the prosecution];

(c) the Temple is frequented by many Sikhs in the Luton area who go there in order to worship;

(d) the appellant had attended the Temple for many years and had repeatedly expressed publicly his disagreement with the religious teachings of that establishment and asserted that such teachings resulted from an incorrect interpretation of the Holy Book;

(e) the appellant intended that the notice should be read by the users of the Temple;

(f) the business of the Temple was at all material times managed by a committee and the committee was chaired by a President;

(g) Jasvinder Singh Nagra was President of the Temple on the 4th June 2003;

(h) the words 'Hypocrite President' are a clear and unequivocal reference to Mr Nagra;

(i) Mr Nagra read the notice on the 4th June 2003, and interpreted it as referring to him in its entirety (as well as to other members of the committee); and as describing him as a hypocrite; a liar; a maker of false statements to police in order to have the appellant arrested; a maker of false statements to the press in order to discredit the appellant; a proud, mad dog; a man who has joined with others in assaulting the appellant and who exploits the congregation of the Temple in order to satisfy his own greed;

(j) Mr Nagra believed that other worshippers at the Temple would interpret the notice similarly;

(k) the terms of the notice were abusive and insulting;

(l) Mr Nagra was harassed and distressed by it.

6. Counsel for the appellant submitted (i) that the appellant's professed belief in the correctness of the contents of his poster precluded a finding that he had the necessary intent required by the statute, namely an intent to cause Mr Nagra harassment, alarm or distress; and (ii) that by reason of his belief the appellant's actions could be regarded as 'reasonable' under section 4A(3)(b) of the Public Order Act 1986.

We rejected both submissions. We found the appellant to be an untruthful witness and were satisfied, in any event, that a belief in the truth of what he wrote did not prevent the appellant from forming the intention required by the statute. Having regard to the terms of the notice, the history of attempted interference by the appellant in the affairs of the Temple even after he had moved from the area and the serious additional allegations he made against Mr Nagra and other members of the committee during the course of his testimony which we were satisfied were untrue, we found that the appellant intended to cause Mr Nagra harassment, alarm or distress both by the terms of the notice and by exhibiting as he did. We also found that the test of what was reasonable under section 4A(3)(b) was an objective test and we did not regard the terms of the notice as objectively reasonable.

7. Counsel for the appellant further submitted that Article 10(1) of the rights set out in Schedule 1 to the Human Rights Act 1990 (the right to freedom of expression) afforded a defence to the appellant on the facts of this case. As to the scope of this right, it was submitted that freedom of expression 'constitutes one of the essential foundations' of a democratic society, and applies '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 the State or any sector of the population'.

8. Counsel for the prosecution submitted that, having regard to the terms of Article 10(2), in the circumstances of this case a prosecution under section 4A(1) was a proportionate response to the appellant's conduct.

9. We were referred to the cases of Handyside v UK 1 EHRR 737, para 49 [Archbold 2005, paras 16-119, page 1674]; Redmond-Bate v DPP (Divisional Court, 23.7.1999; Hammond v DPP (Divisional Court 13.1.2004, CO/3347/2002); and mark Anthony Norwood v DPP (Divisional Court, 3.7.2003).

10. We agreed with the submission made by counsel for the Crown and, having regard to our findings that the appellant's conduct was intended to cause Mr Nagra harassment, alarm or distress and that the terms of the notice could not be regarded as objectively reasonable, we dismissed the appeal.

The question for the opinion of the High Court is whether, on the facts as we found them to be, we were right:

(1) to find that the prosecution of the appellant was a proportionate response to this conduct.

(2) that Article 10 did not afford him a defence and to dismiss the appeal accordingly."

1. Section 4A(1) of the Public Order Act 1986 provides:

"A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he --

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour; or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress."

Subsection (3) provides:

"It is a defence for the accused to prove --

....

(b) that his conduct was reasonable."

As is plain from the case stated, the Crown Court was sure that part of the poster was abusive and insulting (see the finding at paragraph 5(k)), and that it was posted with intent to cause harassment, alarm or distress (see the finding at paragraph 6). They also found that the object of that poster was harassed and distressed by it.

5. The grounds of the appeal rest upon the relationship between that section and Article 10. There have been a number of authorities which stress the fundamental importance of the right enshrined in Article 10 of the European Convention on Human Rights. Article 10 provides:

"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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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 public health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for the maintaining the authority and impartiality of the judiciary."

This is not the occasion for further analysis of the relationship between Article 10 and section 4 since the fundamental feature of that relationship is that the criminal law should not be invoked unless and until it is established that the conduct which is the subject of the charge amounts to such a threat to public disorder as to require the invocation of the criminal as opposed to the civil law. There is ample authority for that proposition. It is unnecessary to refer yet again to those authorities in detail, save to say that it is important that all courts bear in mind that the justification for any criminal sanction must be convincingly established: see Sunday Times v United Kingdom (No 2) [1992] 14 EHRR 123.

6. A number of these authorities were referred to the court. The court was reminded of the important words of Sedley LJ in Redmond-Bate v DPP (DC 23.7.99), in which (although the case was decided before the Human Rights Act came into force) he stressed that the mere fact that words were irritating, contentious, unwelcome and provocative was not enough to justify the invocation of the criminal law unless they tended to provoke violence.

7. After the coming into force of the Human Rights Act Hallett J (as she then was) spoke of the need to ensure that there was no restriction of that which was no more than a legitimate protest. It is neither desirable nor possible to provide any universal test for that which goes beyond being a matter of legitimate protest, save to stress the importance of providing a justification for invoking the criminal law, namely where there is a threat to public order. The impact of the very words of the statute the "Public Order" Act should remind the court of the importance of drawing that distinction.

8. In the instant case, unfortunately, having referred by name to the authorities, the court merely cites the argument of counsel for the prosecution that the prosecution was a proportionate response to the appellant's conduct. It does not even set out the reasons why counsel for the prosecution (who is not counsel before me today) made that submission. In conclusion the Crown Court merely said:

"We agreed with the submissions made by counsel for the Crown and having regard to our findings that the appellant's conduct was intended to cause Mr Nagra harassment, alarm or distress and that the terms of the notice could not be regarded as objectively reasonable, we dismissed the appeal."

9. There has been and could be no challenge to the finding as to the appellant's intention, but that does not help in any way as to the proportionality of the criminal prosecution. Nor does the fact that the notice was not objectively reasonable. The court had earlier, apparently, found that there was no basis for the allegation being made against the Temple. What was needed was not merely a conclusion, namely that the prosecution was a proportionate response, but a careful analysis of the reasons why it was necessary to bring a criminal prosecution at all. In order to justify one of the essential foundations of democratic society the prosecution must demonstrate that it is being brought in pursuit of a legitimate aim, namely the protection of society against violence and that a criminal prosecution is the only method necessary to achieve that aim. The court must carefully consider those considerations and set out their findings as to why they have reached their conclusion. So much is well-settled. Indeed, in Hammond v Director of Public Prosecutions [2004] EWHC 69 Admin, which was cited, the careful questions the justices posed to themselves in that case and their answers are set out at paragraph 19 of that decision.

10. In the instant case no such reasoning is given. There is a reference in paragraph 6 to attempted interference by the appellant in the affairs of the Temple, but that is far from a finding of any past history of violence or threat to public order.

11. In the very helpful skeleton argument made by counsel for the Crown in this appeal, there is reference to a history of unrest between the appellants and the Temple. That I can well believe, but there is no evidence about it, nor any findings about it in the case stated, nor any findings as to the extent of that unrest and whether it amounted to a threat to public order.

12. I repeat, the important factor upon which the Crown Court should have focused and upon which on its face it appears not to have focused is the justification for bringing any criminal prosecution at all. However insulting, however unjustified what the appellant said about the President of the Temple, a criminal prosecution was unlawful as a result of section 3 of the Human Rights Act and Article 10 unless and until it could be established that such a prosecution was necessary in order to prevent public disorder. There is no such finding or any justification whatever given in the case stated. In those circumstances, whether this case be meritorious or not, I am bound to allow the appeal. There was, in short, no basis found by the Crown Court for concluding that this prosecution was a proportionate response to his conduct. In those circumstances I would answer question 1 "No". It follows that question 2 must also me answered in the negative.

13. For those reasons this appeal is allowed.

MR MACKINNON: Thank you, my Lord. Could I make an application for costs to follow?

MISS SUMMERS: My Lord, in the circumstances I cannot resist that.

MR JUSTICE MOSES: No. I shall allow the appeal with costs. Thank you. I think you ought to remind your client that any repetition of this behaviour may well be met with further sanctions that might well be justified. Nothing that I have said in this appeal is designed in any way to endorse his conduct.

MR MACKINNON: My Lord, yes.

MR JUSTICE MOSES: He may find himself back before the courts if he does not find a more legitimate way of expressing his dissatisfaction.