Freedom of Expression in UK Law

I, for my part, agree with Mr Keith that the provisions of section 5 and section 6 of the Public Order Act, as enacted and applied by the courts of this country, contain the necessary balance between the right of freedom of expression and the right of others not to be insulted and distressed. The right to freedom of expression was well established in the United Kingdom before the incorporation of the Convention. Peaceful protest was not outlawed by section 5 of the Public Order Act.

Where the right to freedom of expression under Article 10 is engaged, as in my view is undoubtedly the case here, it is clear from the European authorities put before us that the justification for any interference with that right must be convincingly established.

I have no difficulty in principle with the concept that there will be circumstances in which citizens of this country and visiting foreign nationals should be protected from intentionally and gratuitously insulting behaviour, causing them alarm or distress. There may well be a pressing social need to protect people from such behaviour.

Whether or not undertakings of confidentiality had been signed, both domestic law and Art. 10(2) would recognise the propriety of suppressing wanton or self-interested disclosure of confidential information; but both correspondingly recognise the legitimacy of disclosure, undertakings notwithstanding, if the public interest in the free flow of information and ideas will be served by it.

Paragraph 89 echoes the understanding that the conscientious motives of protestors will be taken into account when they are sentenced for their offences but that there is in essence a bargain or mutual understanding operating in such cases. A sense of proportion on the part of the offenders in avoiding excessive damage or inconvenience is matched by a relatively benign approach to sentencing.

For some POA offences, the position has been clear for some time. Norwood and Hammond show that these rights and the qualifications to them, and thus the proportionality of the prohibitions or restraints on expression and assembly, form part of the statutory defence that the accused's conduct was reasonable. That is also what should have been decided in Dehal. It is the point on which the issue in Abdul turned in substance, and where the focus of the legal analysis should have been.

There is no question of Art. 8 furnishing an absolute right to privacy. Art. 8.2 qualifies, in terms, the right conferred by Art. 8.1. The claims of privacy must of course also be read with the right to freedom of expression provided by Art. 10 (in this jurisdiction, to be read together with s.12 of the HRA).