In Munim Abdul and Others v Director of Public Prosecutions  EWHC 247 (Admin) the High Court ruled that prosecution of a group of people who had shouted slogans, including, “burn in hell”, “baby killers” and “rapists” at a parade of British soldiers, was not a breach of their right to freedom of expression, protected by Article 10 of the European Convention on Human Rights.
Five men were convicted of using threatening, abusive or insulting words within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby (contrary to section 5 of the Public Order Act 1986). The men launched an appeal, raising amongst other things the question of whether the decision to prosecute them for shouting slogans and waving banners close to where the soldiers and other members of the public were was compatible with Article 10.
Freedom of expression is protected under Article 10 of the European Convention. However, Article 10 is subject to a number of qualifications. In practice, UK freedom of speech rights are more constrained than, for example, in the United States, where even “hate speech” is generally protected under the First Amendment to the US Constitution (see Adam Wagner’s post on the Congressman Giffords shooting for more).
“British soldiers go to hell”
The men had intended to participate in a protest against the wars in Iraq and Afghanistan at a parade of British soldiers. Relatives and friends of the soldiers were expected to be among the members of the public attending. Representatives of the protesters met with police beforehand, and management of the protest was discussed, but there was no discussion about what would amount to legitimate protest.
A small group of protesters shouted slogans near to where the soldiers were passing, which included “British soldiers go to hell”, “terrorists” and “cowards”. The protesters were not arrested on the day of the protest (see this report). They complied with directions from the police and there was no evidence the police warned them to cease chanting the slogans. They were filmed during the protest.
Later, after consideration including reviewing of the footage of the protest, they were charged with the section 5 public order offence. DJ Mellanby heard the trial, which led to convictions of 5 of the Appellants. During the trial, the Appellants raised the question of whether Article 10 was breached by the bringing of a prosecution. The Judge considered that it was not, finding that the prosecution was necessary and proportionate. She found they had gone beyond “putting a point across”.
A number of points were raised in the appeal. Of particular interest was the question of whether the Judge had been entitled to come to the conclusion that the prosecution was proportionate, in the light of Article 10.
The Appellants argued that the fact that the police had not arrested them on the day of the protest was a “powerful indication” that prosecution was disproportionate. They questioned what the point of the discussion with the police was, if they were nevertheless to be prosecuted. The importance of freedom of expression was emphasised.
The DPP accepted that the men’s Article 10 rights were engaged, but argued they had gone beyond reasonable legitimate protest. Those in the vicinity would clearly have been alarmed or distressed. The situation was likely to be repeated. It was hard to think of a situation to which the Public Order Acts were more appropriate. Serious public disorder could have resulted from the protest. These factors meant that prosecution was proportionate, it was argued.
The Relationship between Section 5 and Article 10
Lord Justice Gross gave a summary of the legal principles governing the relationship between section 5 and Article 10 at paragraph 49:
“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.
Article 10.2 qualifies the right to freedom of expression. In other words, while some rights are unqualified, meaning they can never be breached lawfully (for instance, Article 3 which prohibits torture), Article 10 contains exceptions. Article 10.2 provides:
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.
Gross LJ continued at paragraph 49:
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.”
In this passage he stressed that every case will depend on its own facts, when it comes to determining when someone’s speech goes beyond what it legitimate. The more serious the threat to public order, the more likely it is that the speech is not legitimate protest. He continued:
“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.
In other words, if the prosecution’s case, assuming that it is proved, would not satisfy all the elements of section 5 necessary for the offence in question to be committed, it cannot be right to prosecute. If all the elements are contained in the prosecution’s case, assuming it can be proved, then the question of whether it is proportionate to prosecute arises. He further added:
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  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.
He considered that the Judge had applied the right test, so was entitled to find that the decision to prosecute was proportionate.
Very clear threat to public order
At paragraph 52 Gross LJ stressed that the Judge was entitled to find that the words in question went well beyond legitimate protest: there was “a very clear threat to public order”. Their words were “potentially defamatory and undoubtedly inflammatory”. This background, and the fact that the events are likely to recur, meant that bringing a prosecution was a proportionate response. The facts that the men were not arrested on the day and they had a discussion with police before the protest did not change this:
… dialogue [with police] 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.
Mr Justice Davis added at paragraph 55, that exercise of the rights in Article 10 and Article 11 (the right to peaceful assembly) carries duties and responsibilities. He noted that two people who had reacted to the protest made by the Appellants were charged and convicted for their actions. In this case, the Appellants were making comments “specifically directed at the nearby marching soldiers” and these comments were “personally abusive and potentially defamatory of those soldiers” (paragraph 61).
The men’s appeal was dismissed. Not all speech is protected by freedom of expression rights, and not all protest is legitimate in the eyes of the state.
This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks.