England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/02/2011

LORD JUSTICE GROSS:

INTRODUCTION

1. At the conclusion of the hearing, we indicated that this appeal would be dismissed and that our reasons would follow. These are my reasons.
2. Following a parade in Luton town centre on the 10^th March, 2009, to celebrate the homecoming of the local Royal Anglian Regiment from its duties in Afghanistan and Iraq, seven individuals, including the five Appellants, were charged with an offence under s.5 of the Public Order Act, 1986 ("the Act").
3. S. 5of the Act, insofar as material, provides as follows:

"(1) A person is guilty of an offence if 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,

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. "

4. S.6(4) of the Act deals with the relevant mental element of the offence in the following terms:

"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. "

5. The proceedings came before DJ Mellanby. Somewhat disconcertingly, the matter appears to have taken up court time over a period of 6 days. Even making allowance for the loss of time due to inclement weather, it is not obvious why that should have been so.
6. At the conclusion of the Crown case, the defendants made a number of applications. They contended that the proceedings should be stayed on the ground of abuse of process; that evidence should be excluded under s.78 of the Police and Criminal Evidence Act 1984 ("PACE"); and that there was no case to answer. All these applications failed.
7. Thereafter, two of the Appellants, Mr. Abdul and Mr. Choudhury gave evidence. The remaining Appellants chose not to do so.
8. In the event, five of the seven defendants – the present Appellants – were convicted. The remaining two defendants were acquitted.
9. The matter now comes before this Court by way of case stated ("the Case").
10. The questions for this Court ("the Questions") are as follows:

" 1. Did I apply the correct principles in determining the issue raised by counsel at the conclusion of the prosecution case?

2. If not, what considerations should I have applied?

3. (a) Should I have given full consideration to Article 10.2 of the European Convention on Human Rights as being part of what the prosecution must prove at this stage?

(b) If so, what is the weight or test that should be applied?

4. Did I apply the proper test under section 6(4) of the Public Order Act 1986 as set out in my written judgment of 11.1.10 at page 10, para. 3 and page 13, para. 3?

5. At paragraphs 7-8, pages 15-18 of my judgment I set out my analysis of why I found the prosecution of 5 of the 7 defendants to be a proportionate response, taking into account and applying the principles of Article 10.2 of the European Convention on Human Rights and the case of Ajit Singh Dehal [2005] EWHC 2154.

(a) Did I apply the correct principles/tests?

(b) If not, what are the correct principles/tests? "

THE FACTS

11. The facts, taken from the Case, may be shortly summarised.
12. As already recounted, the parade was scheduled for the 10^th March, 2009. The crowd was expected to include and did include well-wishers - relatives, friends and others from the locality. The parade was a public event, organised with the police.
13. There were also some who wished to make use of the occasion (as expressed in the Case) to "mark their opposition to the war in Iraq and Afghanistan". Representatives of the protesters, including Mr. Bashir and one of the acquitted defendants, met with the police on the 9^th March, 2009. The aim was to agree how any protest could be peacefully managed. The understanding was that there would be about 50 protesters and that the police would facilitate the protest. There was an arrangement for the police, if need be, to talk to a Mr. Kareem (not a defendant) as a representative of the group. It was agreed that the protesters would gather in Bute Street and would remain there between 12.30 and 13.30. The police arranged for officers to be with the protesters because "some feeling in the community" was anticipated. There was no discussion as to what would be deemed appropriate or legitimate protest.
14. The police were anxious to keep the day free of tension and, as of first thing in the morning of the 10^th March, had no reason to think that any public order problems were likely to develop; officers were, however, in reserve, in the event that such difficulties arose. In any event, police officers – overtly – took extensive film footage, before, during and after the parade. Some of that footage, which was or became central to the case against the defendants, contained sound recording.
15. The parade, attended as already noted by a crowd of well-wishers, commenced at about 12.30. At about this time, contrary to the previous day's agreement, a small group of about 12 or 13 protesters with placards, including the Appellants, advanced towards Upper George Street. The police saw them as "late arrivers" and directed them to stand in Upper George Street. By now, the police had become concerned that a "public order situation" might develop.
16. As these protesters took up their position in Upper George Street, the military band and soldiers came into view and the six defendants present began to shout slogans and wave banners close to where the soldiers were passing. The Appellants were heard and seen to shout the following:

i) Mr. Abdul: "British soldiers murderers";

ii) Mr. Ahmed: (a cheer leader) "British soldiers murderers"; "Baby killers"; "Rapists all of you";

iii) Mr. Bashir: "British soldiers go to hell";

iv) Mr. Choudhury: "Shame on you"; "Go to hell"; "Murderers"; "Baby killers";

v) Mr. Rahman: "British soldiers go to hell".

17. The Case records what happened next:

" Members of the public reacted to this protest and the police immediately formed a barrier between the public and protesters…..The shouting [by the Appellants, recorded above] went on for 3-4 minutes and the parading soldiers can be seen on the video footage. They clearly had to slightly alter course round the protesters who were surrounded by 11 or 12 police officers. This small group of protesters numbering 13, were then escorted/shepherded by police officers away from Upper George Street……They then returned back down the same route to the previously agreed venue in Bute Street."

18. The Appellants were compliant in moving to Bute Street. Once there, now at about 12.45, the Appellants joined a larger group of protesters. Again, the police formed a barrier between the protesters and other members of the public who were angered by the demonstration. While in Bute Street, the Appellants were heard and seen to shout the following:

i) Mr. Abdul: "Terrorists"; "Murderers"; "Burn in hell";

ii) Mr. Ahmed: Part of the chanting group;

iii) Mr. Bashir: "British soldiers burn in hell"; "British soldiers you will pay"; "Cowards"; "Baby killers"; "Terrorists";

iv) Mr. Choudhury (using a loud speaker chanting): "British soldiers go to hell"; "Terrorists"; "Murderers"; "Burn in hell";

v) Mr. Rahman: not heard to shout anything.

19. During their time in Bute Street, abuse and threats were directed at the protesters by angry members of the public; at one stage bacon was thrown at them. At about 14.00, they were escorted away by police officers. On the evidence, the Appellants were compliant throughout to directions from the police; there was no evidence of any warnings given to the Appellants to desist from their behaviour, or of any efforts made to confiscate their placards or PA system. A letter had been received on behalf of the Regiment saying (commendably) that they had not been bothered "one jot" by the demonstration.
20. The defendants were not arrested or charged on the day. According to the evidence of DCI Upex (the Senior Investigating Officer), no decision to prosecute was taken until months later – following the viewing of hours of video footage and in consultation with the Complex Trial Unit of the CPS. DCI Upex said, inter alia, that in taking the decision to charge the defendants, he had taken into account "the individual's right to demonstrate". Although he had expected the prosecution to rely on the placards, in the event, the prosecution disclaimed such reliance and focussed solely on the words shouted by the defendants. The defendants were ultimately charged on the 11^th and 12^th August, 2009, so within the 6 month time limit for summary prosecutions.
21. Following their arrests, the defendants were interviewed. In the course of his interview/s, Mr. Ahmed said that he thought he had permission to protest. He said that he would not have dared to say anything insulting to the soldiers personally. With hindsight, he thought that what he had done was "quite silly". If what he had said was offensive, he apologised. In a prepared statement, Mr. Bashir said that his conduct was lawful and entirely reasonable. His intention had been to raise awareness so that politicians should be questioned about their decisions. He complained of being prosecuted when the police had not given him any warnings on the day: "the police action as a whole gave me the clear impression that my action was totally lawful and protected by the police". The remaining Appellants gave no comment interviews.
22. In his evidence at trial, Mr. Abdul said that he believed the war was "illegal". He would have stopped at any time if the police had told him to do so. He had chosen his words "carefully and selectively" in order not to harass, alarm or distress. He also said that those who commit crimes "go to hell". He was distressed by the hostility from the crowd. The police were protecting him.
23. The only other Appellant to give evidence at the trial was Mr. Choudhury. He said that had he been asked to moderate his language by the police he would have done so. His words depicted the truth of the situation in Afghanistan; he wanted people to "open their eyes". He had intended a peaceful demonstration from start to finish. He said that the nature of the event (presumably, as I understand his evidence, the parade) was "an insult to me and the Muslim community". The words he used were not abusive and insulting because they were true.

THE RULINGS AND DECISION OF DJ MELLANBY

24. Before turning to the Judge's rulings and her final decision, it is convenient to set out Art. 10 of the European Convention on Human Rights ("the ECHR").

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

25. Rulings at the conclusion of the prosecution case: As earlier foreshadowed, at the close of the prosecution case, the defendants sought a stay on the ground of abuse of process; they contended that they had a legitimate expectation that they would not be prosecuted and that it was unfair for them to be tried. Having regard to the decision of this court in Nembhard v DPP [2009] EWHC 194 (Admin), at [13] – [14], DJ Mellanby ruled that, as a District Judge, she did not have jurisdiction to stay proceedings on this basis; it would involve trespassing into the territory "of overseeing executive action". It would appear that DJ Mellanby refused an adjournment requested by the defendants to raise the jurisdiction question with the High Court.
26. As to the defendants' application under s.78 of PACE and Art. 10 of the ECHR, the Judge held that Art. 10 only conferred a qualified right to freedom of expression; she would give appropriate weight to Art. 10 in her final judgment.
27. Directing herself along traditional Galbraith lines, the Judge further held that there was a case for the defendants to answer.
28. DJ Mellanby's final judgment: In her judgment, the Judge worked her way through the ingredients of the offence contained in s.5 of the Act, in the context of Art. 10, ECHR. Having done so, she concluded by considering the necessity and proportionality of the prosecution.
29. The Judge began by holding that the words shouted by the defendants were both abusive and insulting; the crowd of well-wishers at the event would "not just be deeply offended but also distressed by the words these defendants were using on such an occasion". The Judge expressly had regard to the defendants' right to stage a legitimate demonstration against the wars in Iraq and Afghanistan and to their Art. 10 rights, albeit that those came with duties and responsibilities. The Judge said this:

" The defendants went significantly beyond the legitimate expressions of protest when viewed within the context and circumstances of the day…… I accept that demonstrations, by their very nature, will often make people angry. Freedom of speech extends to protest activity that many others may find shocking, disturbing or offensive. However, no one has the right to be gratuitously offensive or insulting. I have no doubt it is abusive and insulting to tell soldiers to 'Go to hell' – to call soldiers 'murderers; rapists; baby killers.' It is not just insulting to the soldiers but to the citizens and public of Luton who were out on the streets that day to honour and welcome the soldiers home. Citizens of Luton are entitled to demonstrate their support for the troops without experiencing insults and abuse. Their freedom of expression must be protected. Whilst Article 10.2 protects the rights of people to hold and express a different viewpoint, it does not give these particular defendants the right to abuse and insult soldiers gratuitously. "

30. These words, DJ Mellanby continued, had been said within the sight and hearing of persons likely to be caused harassment, alarm or distress. It was not only members of (allegedly anti-Muslim) extremist groups who would have been distressed.
31. The defendants had been fully aware that their words were threatening and abusive. They had wanted people to be shocked. They had gone beyond "putting a point across" and had "crossed the threshold of legitimate protest". The fact that the police had to concentrate their efforts on keeping the distressed and angry public at bay must have given the defendants "a clear awareness of the effect of their words".
32. DJ Mellanby next turned to s.5(3) of the Act, keeping Art. 10 well in mind. She concluded that the defendants had marked their expression of opinion on a matter of public interest in words that were "disproportionate and unreasonable". She said this:

" The method they chose to convey an otherwise legitimate belief…..was so unreasonable and disproportionately expressed so as to deprive them of the protection of article 10. "

33. Turning to the justification for the prosecution, DJ Mellanby referred in terms to the need to construe the exceptions in Art. 10 narrowly and the necessity for any restrictions on freedom of expression to be convincingly established. The defendants had argued that the conduct of the police, both as to the meeting and the arrangements made on the day before the protest as well their conduct on the day, led to the conclusion that the prosecution was neither a proportionate response to the defendants' behaviour nor necessary to prevent public disorder. The Judge rejected that argument. The conduct of the police did not amount to an unequivocal representation that the defendants would not be prosecuted. Neither the fact that the defendants had not been arrested on the day nor the conduct of the police during the protest, amounted to an acceptance that the defendants had been behaving lawfully.
34. Elaborating on her reasoning, the Judge spoke of the "careful balancing act" required under Art. 10.2, ECHR. She continued as follows:

" On the evidence I have heard from Detective Chief Inspector Upex, the senior investigating officer, I find:

i. The decision to prosecute was a carefully considered and measured one…..

ii. Consultation with the CPS took place at the highest level;

iii. A special investigation team was set up with hours of video footage viewed and reviewed;

iv. There were over 500 pages of unused material accumulated which demonstrates the rigour and thoroughness of the investigation and the consideration given to the prosecution;

v. There was no evidence of improper outside influence being brought to bear

…….

I find that a criminal prosecution and conviction of 5 of the 7 defendants is a proportionate response to the legitimate aim of protection of society and maintenance of public order not only for the future but to ensure that there is public confidence and support in the peace keeping responsibilities of the police and the courts. "

35. The Judge spoke of the police having a duty to maintain law and order, both at the time and for the future. This had not been a prosecution "at any cost". This incident had provoked a public outcry, evidenced by letters to the local media. It demanded an investigation, a decision as to whether a criminal offence had been committed and, if so, consideration of prosecution. The public had a right to "expect a proper measured response and that is precisely what occurred". The Judge then considered the position of each defendant individually and convicted the five Appellants while acquitting the two remaining defendants.
36. As is common ground, this Court is solely concerned with the Questions. There is no appeal from the fact findings of the Judge. I turn to the Questions.

QUESTIONS I and II

37. These two Questions were argued, attractively succinctly, for the Appellants by Mr. Turner. The only live issue related to abuse of process. Realistically, Mr. Turner accepted that the argument on s.78 of PACE stood or fell with the argument on abuse of process. Insofar as any point was to be pursued on there having been no case to answer, it was contained within Question III.
38. Mr. Turner submitted that two points arose in connection with abuse of process:

i) Whether DJ Mellanby erred in deciding that she lacked jurisdiction? ("Jurisdiction")

ii) Whether the abuse argument can be sustained? ("Substance")

Having regard to the stage the case had now reached, there was no question of remitting it to the Judge for reconsideration.

39. Substance: Given the view which I take of the matter, it is convenient to consider the substance of the abuse argument first. Mr. Turner submitted that it was unfair for the Appellants to be tried. The conduct of the police immediately before and on the day of the protest amounted to an assertion, albeit implicit rather than explicit, that what the Appellants were doing was within the law. The Appellants did not need to establish an "unequivocal representation" (cf., R v Abu Hamza [2006] EWCA Crim 2918, at [54]) but, in any event, they had relied on the conduct of the police to their detriment. Such reliance went both to the meeting on the 9^th March and to the course of action (or inaction) followed by the police in the course of the protest – the absence of warnings, directions and the like, together with the failure to pursue the arrangements made the day before to discuss matters with Mr. Kareem. The police had done nothing about the Appellants' placards; by contrast, they had taken down a banner (displayed by others) with Arabic writing. The Appellants had displayed their placards openly; their chanting or shouting used the same wording as that displayed on their placards. Insofar as the police had given directions on the day, the Appellants had complied with them.
40. For the Respondent, Mr. Chaudhuri, in likewise attractive submissions, contended the Appellants' case of abuse failed. At the 9^th March meeting, there had been no assurances other than that the police would do their best to facilitate the protest. On the 10^th March, the police had a difficult balance to strike. There had been no unequivocal representation that prosecution would not follow; to the contrary, the overt filming of events suggested otherwise.
41. On the substance of the issue of abuse of process and with respect to Mr. Turner's submissions, I have a clear preference for those of Mr. Chaudhuri. On the facts, it is unnecessary to decide whether the test is that of an "unequivocal representation" that the Appellants would not be prosecuted or whether there would be "…'an overriding affront to public justice in the trial being permitted to take place at all'…" – a test also culled from Abu Hamza (supra), at [63]. Whichever test is applied, in my judgment, the only reasonable conclusion was that there was no abuse of process here.

i) So far as concerns the meeting on the 9^th March, I agree with Mr. Chaudhuri; the police gave no assurances other than that they would do their best to facilitate the protest. It is important to underline that there was no discussion about what would be appropriate or legitimate protest. The mere fact that the police would do what they could to assist, did not begin to amount to a blank cheque as to the Appellants' future conduct.

ii) Turning to the events of the day, as is clear from the Case, the police faced a most difficult task. Holding the ring in such circumstances was anything but easy. As it seems to me, the police were fully occupied in safeguarding both the parade and the Appellants' protest – not to mention the Appellants themselves. Nothing they did or did not do on that day (as set out in the Case) rendered future prosecution unfair. The Appellants' case, with respect, risks standing reality on its head; the police were not the Appellants' legal advisers. It was the Appellants' duty to keep on the right side of the law; that was not a responsibility they could abdicate or transfer to the police. The police had a broad discretion whether or not to intervene in the light of the Appellants' words and conduct; but the exercise of the discretion not to intervene did not jeopardise any future prosecution. Moreover, the criticism can readily be imagined which would have been levelled at the police had they, there and then, directed the Appellants to cease their protest.

iii) For these reasons, relating both to the events of the 9^th and 10^th March, there was nothing unfair in the prosecution of the Appellants – subject of course to the issues raised by Question V, dealt with below.

42. Jurisdiction: My conclusion as to substance renders the jurisdiction point academic. The question of whether Nembhard (supra) meant that DJ Mellanby lacked jurisdiction to deal with this facet of abuse of process or whether R v Horseferry Rd. Ct., Ex p. Bennett [1994] 1 AC 42 and R v Belmarsh Magistrates' Court, Ex p. Fiona Watts [1999] EWHC Admin 112 (8^th February, 1999) empowered her to do so, is not entirely straightforward. The key question is whether the issue as to abuse of process in the present case, falls within the following passage in the speech of Lord Griffiths, in Bennett, at p.64:

" …in the case of magistrates this power [exercising control over their proceedings through an abuse of process jurisdiction] should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures."

See too, Watts (supra), at [24].

43. Any such decision must be fact specific (as indeed would be the decision whether to grant or refuse an adjournment, while the matter was explored in the High Court). As it is unnecessary to decide the point, I do not do so and say no more than that I incline to the view that DJ Mellanby could properly have exercised jurisdiction – in particular, given the factual overlap between Questions I and II and Question V. In the light, however, of my decision on the substance of the abuse argument, nothing turns on this provisional observation.

QUESTIONS III and IV

44. Mr. Argyropoulos, who dealt with Questions III – V on behalf of the Appellants, realistically concentrated on Question V. In effect, while not abandoning Questions III and IV, he, rightly, did not press either.
45. I take Question III shortly. At the close of the prosecution case, it was for the prosecution to show a case upon which a reasonable tribunal, properly directing itself, could convict. It was not in dispute (on the facts of this case) that s.5 of the Act was to be read together with Art. 10, ECHR. Accordingly, in order to reach a proper conclusion that the case was fit to continue, the Judge was required to have regard both to Art. 10, as well as ss. 5(1) and 6(4) of the Act. She did not of course need to decide the Appellants' guilt at the close of the prosecution case – simply whether the prosecution's case was properly capable of resulting in a conviction. (For completeness, s.5(3) of the Act, where the burden rests on the defence, did not require consideration at this stage.) On the face of the Judge's ruling it would appear that she did give some consideration to Art. 10 at the close of the Crown case. But even if such consideration fell short of that which was required (and it is not apparent that it did), nothing turns on it here. The only reasonable conclusion to which DJ Mellanby could have come was that there manifestly was a sufficient case to continue.
46. Question IV can be dealt with summarily. The Judge properly applied s.6(4) of the Act, so that the answer is "yes". Nothing in the Appellants' skeleton – beyond which Mr. Argyropoulos did not venture – suggests otherwise.

QUESTION V

47. (1) The rival arguments: The Appellants' submissions on this question, as developed by Mr. Argyropoulos, pointed to an overlap between Question V and Questions I and II. Mr. Argyropoulos highlighted that the Appellants were not arrested on the day of the protest. While he accepted that was not decisive, he submitted it was a "powerful indication" that it was disproportionate to prosecute. The protesters had done as much as they could in an effort to do what was right. What was the point of dialogue with the police if prosecution was nonetheless to result? Mr. Argyropoulos emphasised the importance of freedom of expression, having regard to the authorities in this area. There were a number of distinctions to be drawn, favourable to the Appellants, between this case and the authority of Hammond v DPP [2004] EWHC 69 (to which the Court, through Davis J, had drawn the parties' attention). Mr. Hammond had been belligerent; the Appellants compliant; Mr. Hammond had been given opportunities to desist; the Appellants none; Mr. Hammond had behaved in a cloak and dagger fashion as to the sign he was carrying; by contrast, the Appellants placards (in the same words as those shouted) had been openly displayed.
48. For the Respondent, Mr. Chaudhuri accepted throughout that the Appellants' Art. 10 rights were engaged. They had, however, gone beyond reasonable legitimate protest. Mr. Chaudhuri submitted that this was a worse case than Hammond. Mr. Hammond had simply expressed a point of view ("Stop Immorality", "Stop Homsexuality" and "Stop Lesbianism"). Moreover, the context was very different; the sexual orientation of those in the vicinity of Mr. Hammond was not known, so it could not necessarily be said that they were likely to be harassed, alarmed or distressed. Here, there was no doubt whatever that those in the vicinity of the Appellants would have been alarmed or distressed by the words they shouted. Other authorities referred to by the Appellants were distinguishable; it was difficult to think of a situation to which the application of the Public Order Acts was more suited than this. Moreover, it could not be said that this was a one-off protest; the situation was likely to be repeated, so there was every reason for prosecution. As for the day itself, it was plain, from the material in the Case, that there could have been serious public disorder.
49. (2) The legal framework: While the authorities are of course fact specific, the principles to be distilled from them governing the relationship between s.5 of the Act and Art. 10 of the ECHR, are now familiar. For present purposes, I would venture the following summary:

i) The starting point is the importance of the right to freedom of expression.

ii) In this regard, it must be recognised that legitimate protest can be offensive at least to some – and on occasions must be, if it is to have impact. Moreover, the right to freedom of expression would be unacceptably devalued if it did no more than protect those holding popular, mainstream views; it must plainly extend beyond that so that minority views can be freely expressed, even if distasteful.

iii) The justification for interference with the right to freedom of expression must be convincingly established. Accordingly, while Art. 10 does not confer an unqualified right to freedom of expression, the restrictions contained in Art. 10.2 are to be narrowly construed.

iv) There is not and cannot be any universal test for resolving when speech goes beyond legitimate protest, so attracting the sanction of the criminal law. The justification for invoking the criminal law is the threat to public order. Inevitably, the context of the particular occasion will be of the first importance.

v) The relevance of the threat to public order should not be taken as meaning that the risk of violence by those reacting to the protest is, without more, determinative; some times it may be that protesters are to be protected. That said, in striking the right balance when determining whether speech is "threatening, abusive or insulting", the focus on minority rights should not result in overlooking the rights of the majority.

vi) Plainly, if there is no prima facie case that speech was "threatening, abusive or insulting" or that the other elements of the s.5 offence can be made good, then no question of prosecution will arise. However, even if there is otherwise a prima facie case for contending that an offence has been committed under s.5, it is still for the Crown to establish that prosecution is a proportionate response, necessary for the preservation of public order.

vii) If the line between legitimate freedom of expression and a threat to public order has indeed been crossed, freedom of speech will not have been impaired by "ruling …out" threatening, abusive or insulting speech: per Lord Reid, in Brutus v Cozens [1973] AC 854, at p. 862.

viii) The legislature has entrusted the decision in a case such as the present to Magistrates or a District Judge. The test for this Court on an appeal of this nature is whether the decision to which the District Judge has come was open to her or not. This Court should not interfere unless, on well known grounds, the Appellants can establish that the decision to which the District Judge has come is one she could not properly have reached.

See: Percy v DPP [2001] EWHC Admin 1125; Hammond (supra); Dehal v Crown Prosecution Service [2005] EWHC 2154 (Admin).

50. (3) Discussion: As it seems to me, the Judge proceeded very much in accordance with the relevant principles, summarised above. She took into account Art. 10, ECHR and plainly had regard to the tension between freedom of expression and public order; her decision reflects a careful balancing of such considerations. Her conclusion - that prosecution was a proportionate response - was rooted in the threat to public order, described in the Case. She highlighted the evidence of the care taken with regard to the decision to prosecute.
51. For my part, I do not think that authority tells against the Judge's decision. As to Dehal (supra), the key consideration there, over and above the paucity of reasons in the judgment under challenge, was the absence of evidence of a threat to public order, given the very restricted class of person who was or might have been affected. Insofar as it matters, this incident would appear to have given rise to a significantly more potent threat to public order than the facts disclosed in Hammond (supra) – to my mind, a case most helpfully seen as illustrating the reluctance of this Court to interfere with the decision of the justices. Suffice to say that the facts of Percy were far removed from those of the present case.
52. It follows – and it is sufficient to decide Question V – that the decision to which DJ Mellanby came was one she was entitled to reach and, in my view, amply so. Pulling the threads together and having regard to the facts set out in the Case:

i) Context is of the first importance. There was all the difference between expressing the view that the wars in Iraq and Afghanistan were illegal or immoral and that British forces should not be engaged in them and the abusive and insulting chants of the Appellants. To attend a parade of this nature and to shout that this country's soldiers were "murderers", "baby killers", "rapists all of you" who would or should "burn in hell", gave rise, as the Judge concluded, to a very clear threat to public order. In passing, that the words shouted were the same as those on the placards, does not advance the Appellants' case; whatever impression the placards would of themselves have conveyed, the impact of the chants must have added significantly to the charged atmosphere on the day. Nothing in the evidence suggests that only bigots or extremists were outraged. It is the Appellants' good fortune, most probably attributable to skilful policing, that there was no serious outbreak of violence. As Mr. Chaudhuri put it for the Crown, what the Appellants shouted was potentially defamatory and undoubtedly inflammatory. I agree. The Judge was entitled to hold that it went well beyond legitimate expressions of protest.

ii) Against this background, both with regard to the events of the day itself and also because, unfortunately, such incidents may recur, prosecution was a proportionate response. For completeness, it is not without interest, that, as we were told, prosecution followed too in the case of some who had evinced hostility to the Appellants and their supporters.

iii) In essence, the Appellants' response overlaps with the considerations already discussed under Questions I and II: namely, the fact that the Appellants were not arrested on the day. I am unable to accept this argument. While I do not think that the police could for a moment have been criticised had they arrested the Appellants there and then, there is much to be said for the police efforts to keep the events of that day as low key as possible, concentrating on the more immediate matter of preventing outbreaks of violence. On the facts of this case, there is likewise much to be said for the deferred and measured decision to prosecute, taken following a careful review of the evidence and after the dust had settled. On any view, I cannot see that the manner in which the decision to prosecute unfolded in any way renders the prosecution disproportionate. For the avoidance of doubt, nothing said in this judgment should discourage dialogue with the police in advance of any protest; such dialogue can only help to reduce the risk of untoward events but it cannot guarantee in advance that the words and conduct of protesters will not contravene the law – a fortiori, when nothing has been said in such discussions as to what will be said or exhibited in the course of the protest.

THE QUESTIONS ANSWERED

53. For the reasons set out above, I would dismiss the appeal and answer the Questions in the Case as follows:

i) Questions I and II: The only reasonable conclusion to which the Judge (or this Court) could have come was that there was no abuse of process. Accordingly, though the Judge may have erred (I express no final view) in holding that she lacked jurisdiction to consider the aspect of abuse of process in issue, the point is academic.

ii) Question III: At the close of the prosecution case, the Judge was bound to consider Art. 10, ECHR, in that s.5 of the Act is to be read together with Art. 10. It is not apparent that the Judge did not consider Art. 10. If, however, she did not or did not adequately do so, it makes no practical difference, because the only reasonable conclusion to which the Judge could have come was that the submission of no case to answer was to be rejected.

iii) Question IV: Yes.

iv) Question V: The Judge was entitled to conclude that the prosecution of the Appellants was a proportionate response. Question V(a) is to be answered "yes". Question V(b) does not arise.

MR JUSTICE DAVIS:

54. I agree. I add only a few remarks.
55. Article 10 sets out the core right of freedom of expression. But, as the qualification contained in the Article states at the outset, the exercise of that freedom necessarily carries with it duties and responsibilities. The same applies to the exercise of the freedom of peaceful assembly under Article 11 (on which no separate reliance was in fact placed before us on this appeal) which contains broadly corresponding words of qualification. There can be no argument – and certainly none was advanced before us – that section 5 of the Act is of itself incompatible with the Convention. It obviously is compatible with the Convention.
56. It follows that, in a factual context of a kind where the right of freedom of expression is being asserted, whether a prosecution and conviction under section 5 of the Act is justified and proportionate has to be assessed on the facts and circumstances of the individual case. To an extent, that is imparted by s.5 (3) (c) of the Act, albeit it is for the defendant under that sub-section to prove that his conduct was "reasonable". But in any event over and above that the prosecution in each such case has to be in a position to establish that prosecution and conviction is justified and proportionate by reference to the provisions of Article 10.
57. Decisions on this necessarily proceed on a fact specific basis. It is not, as I see it, possible to establish in advance a bright line statement of approach whereby prospective conduct or language can be styled as within or outwith the proper exercise of freedom of expression. Certainly it is a vital starting-point to respect the core right; and this cannot be allowed to become a matter of lip-service only. The District Judge herself rightly noted that freedom of speech extends to protect activity that others may find shocking, disturbing or offensive. As Sedley LJ put it in Redmond-Bate v DPP [2000] HRLR 249 at paragraph 20: "Freedom only to speak inoffensively is not worth having…".
58. As stated by May LJ in Hammond, it can be said that there are cases where the preservation of public order should be directed at stopping those who react rather than stopping the expression of views: as he put it, it can be a "very knotty problem" for the law to sort out. (It is of interest that in the present case two of those who reacted against the defendants were, as we were told, themselves charged and convicted). In Hammond itself, Mr Hammond, who had strong personal religious convictions, held up a placard in a public square bearing the words "Stop Immorality", "Stop Homosexuality" and "Stop Lesbianism". A crowd gathered and (as Mr Hammond had foreseen might happen and as had happened to him on previous occasions) there was trouble. It seems that Mr Hammond did not himself, aside from holding up the placard and preaching his views, otherwise behave in an aggressive or provocative way: although he refused a police request to desist when the trouble broke out. Mr Hammond was convicted and the Divisional Court dismissed the appeal on the footing that the conclusion was one open to the justices, May LJ saying that he had not found it "easy" to decide whether the words on the placard were "insulting" for the purposes of the Act. In Norwood v DPP [2003] EWHC 1564 (Admin), Mr Norwood, a BNP member, after the events of 9/11 displayed a poster in his window in his home in a small rural town in Shropshire saying "Islam out of Britain" and "Protect the British People", with a photograph of one of the twin towers in flames and a prohibition sign over the Crescent and Star. No Muslim saw the poster but a complaint was made by one member of the public. Mr Norwood was convicted by the District Judge and the conviction was upheld by the Divisional Court, on the basis that the District Judge was "entitle to conclude" that the offence had been made out and that Mr Norwood's conduct was unreasonable "having regard to the clear legitimate aim…to protect the rights of others and / or to prevent crime and disorder" (per Auld LJ at paragraph 40).
59. Perhaps cases such as those go close to the limit of what may justify a prosecution and conviction under s.5 of the Act. Views can legitimately differ: see, for example, the most interesting and powerful critique by Professor James Weinstein in his essay "Extreme Speech, Public Order and Democracy" contained in Extreme Speech and Democracy, edited by Ivan Hare and James Weinstein, Oxford UP 2010. But these decisions show the appellate courts in England and Wales adopting a pragmatic approach by reference to the fact finding and evaluative exercise of the lower courts in this context. If the lower courts themselves approached the matter having duly considered all the relevant principles, the appellate courts will – also on established principles, applicable to appellate courts – be disinclined to interfere. An example of where interference was necessary can be found in the case of Dehal where (on very unusual facts) the decision of the justices was set aside for a failure to give any reasons as to why prosecution was justified and proportionate in pursuit of a legitimate aim. I might add that, with regard to the case of Norwood, the European Court of Human Rights itself gave short shrift to Mr Norwood's application to that court, declaring the application inadmissible and indeed going so far as to rely on Article 17 for that purpose: Application 23131/03, [2004] EHRR 11.
60. In my view, so far as the present case is concerned, the limits of what can be justified as a proportionate response in pursuit of a legitimate aim by way of prosecution and conviction under s.5 of the Act are, given the findings of the District Judge, not significantly tested. It was of course in no way illegitimate in principle for these appellants to wish to express their opposition to the war in Afghanistan by protest at the public march, even though offence might predictably be caused: indeed the public nature of (and potential publicity for) the event would give greater exposure to their views. But it was, in my view, fully open to the District Judge, on her findings of fact, to conclude that what they actually shouted, and the way in which they conducted themselves, on the day in question went too far and justified prosecution and conviction under s.5 of the Act.
61. In this regard, the evidence was that people present – inevitably including families and well-wishers of the regiment – were upset and offended and trouble arose. It is to be noted that what these appellants were chanting included comments specifically directed at the nearby marching soldiers: these were not just generalised statements of views, vigorously expressed, on the morality of the war but were personally abusive and potentially defamatory of those soldiers. That the soldiers themselves were, as it happened, broad-shouldered enough not to care one jot does not matter: it was, in any case, unsurprising that attending well-wishers were offended and insulted and provoked. Further, whilst chants of "Go to hell" and the like are not in themselves perhaps potentially defamatory, they certainly are, set in context, potentially inflammatory: and in any event each of the appellants clearly, on the District Judge's findings, associated himself with and lent himself to the chants such as "Rapists" "Baby killers" and so on. Others, in the future, may be tempted to follow this sort of behaviour. Thus, for the purposes of the qualification contained in Article 10, it can properly be said, in this particular case, that prosecution and conviction was proportionate in pursuit of a legitimate aim not only of the prevention of disorder (although that of course is capable of being sufficient in itself) but also of the protection of the reputation or rights of others.
62. In agreement with Gross LJ, with whose judgment I wholly concur, I too would dismiss this appeal.