Abdul v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GROSS,MR JUSTICE DAVIS |
| Judgment Date | 16 February 2011 |
| Neutral Citation | [2011] EWHC 247 (Admin) |
| Docket Number | Case No: CO/5972/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 February 2011 |
[2011] EWHC 247 (Admin)
Before : Lord Justice Gross
and
Mr Justice Davis
Case No: CO/5972/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Kyri Argyropoulos and Mr Mathew Turner (instructed by Arani Solicitors) for the Appellants
Mr Avi Chaudhuri (instructed by CPS) for the Respondent
Hearing dates: 21/01/2011
INTRODUCTION
At the conclusion of the hearing, we indicated that this appeal would be dismissed and that our reasons would follow. These are my reasons.
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").
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. "
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. "
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.
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.
Thereafter, two of the Appellants, Mr. Abdul and Mr. Choudhury gave evidence. The remaining Appellants chose not to do so.
In the event, five of the seven defendants – the present Appellants – were convicted. The remaining two defendants were acquitted.
The matter now comes before this Court by way of case stated ("the Case").
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
The facts, taken from the Case, may be shortly summarised.
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.
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.
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.
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.
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".
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."
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.
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.
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.
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...
To continue reading
Request your trial
-
Danny Mansfield v DPP
...by the magistrates as a matter of jurisdiction, whether by Staughton LJ at the time or later by the House of Lords in Bennett. 27 In Abdul v DPP [2011] EWHC 247 (Admin) the Divisional Court was invited to consider jurisdiction after the District Judge had declined to determine the abuse of......
-
Michael Overd v The Chief Constable of Avon and Somerset Constabulary
...the relationship between Article 10 ECHR and section 5 Public Order Act 1986, namely Abdul v Director of Public Prosecutions [2011] EWHC 247 (Admin) and Campaign Against Anti-Semitism v Director of Public Prosecutions [2009] EWHC 9 (Admin). He did so because the Abdul case, in particular, ......
-
Fiona James v Director of Public Prosecutions
...conduct" defence. 21 I need to make reference to one more case on this point, one which was decided before Bauer but was not cited in it: Abdul v DPP [2011] EWHC 247 (Admin). This was an appeal by case stated against the decision of the District Judge in respect of convictions under s5 of t......
-
Director of Public Prosecutions v Ziegler and Others
...Home Department [2004] UKHL 56; [2005] 2 AC 68; [2005] 2 WLR 87; [2005] 3 All ER 169, HL(E)Abdul v Director of Public Prosecutions [2011] EWHC 247 (Admin); [2011] HRLR 16, DCArrowsmith v Jenkins [1963] 2 QB 561; [1963] 2 WLR 856; [1963] 2 All ER 210, DCAssociated Provincial Picture Houses L......
-
Section 5 of the Public Order Act 1986: The Threshold of Extreme Protest
...Divisional CourtSection 5 of the Public Order Act 1986: The Threshold ofExtreme ProtestAbdul v DPP [2011] EWHC 247Keywords Protest; Public order; Disorderly conduct; Proportionality ofprosecution; Freedom of expressionOn 10 March 2009, the town centre of Luton hosted a homecomingparade for ......