Campaign Against Antisemitism v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Mr Justice Nicol |
| Judgment Date | 09 January 2019 |
| Neutral Citation | [2019] EWHC 9 (Admin) |
| Docket Number | Case No: CO/3306/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 January 2019 |
and
[2019] EWHC 9 (Admin)
Lord Justice Hickinbottom
and
Mr Justice Nicol
Case No: CO/3306/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sam Grodzinski QC (instructed by Sonn Macmillan Walker) for the Claimant
John McGuinness QC (instructed by CPS Appeals and Review Unit) for the Respondent
The Interested Party neither appearing nor being represented
Hearing date: 18 December 2018
Approved Judgment
Introduction
The Claimant (“the CAA”) is a charitable organisation which seeks to counter antisemitism.
In this claim, the CAA challenges the decision of the Defendant (“the DPP”) to take over and discontinue its private prosecution of the Interested Party (“Mr Ali”) under section 5 of the Public Order Act 1986 (“the 1986 Act”) for statements he made at a rally which he led in Central London on 18 June 2017. Under section 5, it is an offence to use abusive words within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. The DPP took the view that, in all the circumstances, the words used were not “abusive” within the meaning of that provision so that a prosecution was more likely than not to fail. As a result, under the DPP's policy in respect of private prosecutions, she was bound to take over the prosecution and discontinue it, which she did. The CAA submits that, on the undisputed facts, that decision was irrational. The DPP maintains that the decision was lawful.
Before us, Sam Grodzinski QC appeared for the CAA and John McGuinness QC for the DPP; and, at the outset, I thank them for their helpful submissions.
The Law: Freedom of Expression and its Limits
Article 10 of the European Convention on Human Rights (“article 10”) provides, so far as relevant to this claim:
“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 and 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.”
Thus, the right is not absolute: freedom of expression may be restricted if and insofar as restriction is prescribed by law and is “necessary in a democratic society for the protection of the rights and interests of others” on one of the identified grounds which include “for the prevention of disorder or crime” and “for the protection of the… rights of others”. Article 17 of the Convention – which states that nothing in the Convention may be interpreted as implying a right to destroy or limit the Convention rights and freedoms to a greater extent than the Convention itself provides – informs the extent to which the freedom of expression may be relied upon ( Norwood v Director of Public Prosecutions [2002] EWHC 1564 (Admin) at [40] per Auld LJ).
Nevertheless, freedom of expression enjoys a privileged status in the hierarchy of norms within a democratic society, and particularly so in respect of the freedom of political expression. Thus, as Lord Nicholls put it in his leading speech in Reynolds v Times Newspapers Limited [1999] UKHL 45; [2001] 2 AC 127 at pages 200D, 203 and 208A, in balancing interests of which freedom of expression is one, it is the “starting point”. Consequently:
“The court is faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly construed” ( Sunday Times v United Kingdom (1979) 2 EHRR 245; (1979) ECHR 1 at [65]).
Therefore, although it has been said that the proper meaning of an ordinary word such as “abusive” is a question of fact and not of law (see, e.g., Brutus v Cozens [1973] AC 854 at page 862E-F per Lord Reid; and Director of Public Prosecutions v Clarke (1992) 94 Cr App R 359 at page 366 per Nolan LJ), section 5 of the 1986 Act has to be read in the context of article 10.
As originally enacted, section 5(1) provided, so far as relevant to this claim:
“A person is guilty of an offence if he… uses threatening, abusive or insulting words or behaviour, or disorderly behaviour…”.
Section 6(4) provided:
“A person is guilty of an offence under section 5 only if he intends his words or behaviour… 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”.
It was generally accepted that sections 5 and 6 of the 1986 Act, as so enacted and applied by the courts, maintained the necessary balance required by article 10 between the right of freedom of expression on the one hand, and the threat to public disorder and right of others not be harassed, alarmed or distressed by what might be said on the other hand; in that the phrase “threatening, abusive and insulting” was construed so that the right to freedom of expression was not compromised (see, e.g. Percy v Director of Public Prosecutions [2001] EWHC 125 (Admin) at [25] per Hallett J (as she then was)). However, that balance was shifted by Parliament, in favour of freedom of expression, in section 57(2) of the Crime and Courts Act 2013 which amended those sections of the 1986 Act by removing “insulting”, so that, to be criminal, the words or behaviour now have to be “threatening or abusive”.
The relationship between section 5 and article 10 was considered by this court in Abdul v Director of Public Prosecutions [2011] EWHC 247 (Admin), which concerned a public parade to mark the homecoming of a local regiment from its duties in Afghanistan and Iraq, and a counter-demonstration (of which the appellants were participants) to mark opposition to that war. During the appellants' protest, they were heard and seen to shout at the passing soldiers, amongst other things, “British soldiers murderers”, “Baby killers”, “Rapists all of you” and “British soldiers go to hell”. The families and well-wishers of the soldiers were upset and distressed by these words. Trouble ensued. Five of the protesters were convicted of offences under section 5. The District Judge (Magistrates' Court) found that, in the circumstances, the words used in the protest were a “very clear threat to public order”; and were both abusive and insulting.
In upholding the convictions in this court, Gross LJ, giving the lead judgment, stressed that whether words are abusive or insulting (which was then still included in the section) is a fact-specific issue, but at [49] he distilled the following relevant principles from the authorities:
“(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. [As Davis J (as he then was) added at [57]: “[F]reedom of speech extends to protect activity that others may find shocking, disturbing or offensive.”]
(iii) The justification for interference with the right to freedom of expression must be convincingly established. Accordingly, while article 10 does not confer an unqualified right to freedom of expression, the restrictions contained in article 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; sometimes 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) …
(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 ( Brutus v Cozens… at page 862 per Lord Reid)…”.
Those principles are uncontentious, and I gratefully adopt them.
The Law: Prosecutorial Decisions
In relation to private prosecutions, the role of the DPP and those who work under (now) him in the Crown Prosecution Service (“the CPS”) is set out in the Prosecution of Offences Act 1985 (“the 1985 Act”). Under the heading “Prosecutions instituted and conducted otherwise than by the Service”, section 6(2) provides:
“Where criminal proceedings are instituted in circumstances in which the [DPP] is not under a duty to take over their conduct, he may nevertheless do so at any stage”.
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