Deborah Hicks v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain,Lord Justice Bean |
| Judgment Date | 09 May 2023 |
| Neutral Citation | [2023] EWHC 1089 (Admin) |
| Docket Number | Case No: CO/1597/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 1089 (Admin)
Lord Justice Bean
and
Mr Justice Chamberlain
Case No: CO/1597/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Merry van Woodenberg (instructed by Murray Hughman Solicitors) for the Appellant
Richard Posner (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 26 – 27 April 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 9 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 19 January 2022, District Judge Wattam (“the judge”), sitting at Cheltenham Magistrates' Court, convicted Debbie Hicks of an offence of using threatening or abusive words or behaviour within sight or hearing of a person likely to be caused harassment, alarm or distress, contrary to s. 5 of the Public Order Act 1986 (“the 1986 Act”).
Ms Hicks invited the judge to pose three questions: first, whether he had erred in finding that the evidence established to the requisite standard that Ms Hicks' words and behaviour were “threatening, abusive or disorderly” within the meaning of section 5 of the 1986 Act, and that she intended them to be such, or was aware of a risk that they would be perceived as such; second, whether he was correct in rejecting Ms Hicks' defence of reasonable excuse under s. 5(3) of the 1986 Act; third, whether he was correct to find that convicting Ms Hicks was a necessary and proportionate interference with her rights under Article 10 of the European Convention on Human Rights (“the ECHR”).
The judge, while not accepting that these questions necessarily raised points of law, nonetheless invited this court to address them.
The incident giving rise to the charge
The charge arose from an incident on 28 December 2020, during one of the lockdowns imposed to contain the transmission of Covid-19.
Ms Hicks was concerned about reports in the mainstream media about the effect of Covid-19 on hospitals. She doubted that hospitals were really overflowing with patients. She therefore decided to go to the Gloucester Royal Hospital (“the Hospital”) to witness what was happening there, video it on her mobile phone and publicise it on Facebook.
Her first visit was on the day before the incident which gave rise to this charge, 27 December 2020, when she took video of the inside of the hospital and streamed it on or uploaded it to Facebook. She wanted to do so again, from different parts of the hospital, to demonstrate that the hospital was not busy. She attended on the afternoon of 28 December 2020.
Ms Hicks was in the stairwell of the main block of the Hospital, on the fifth floor, when she came across a small group of health care professionals who worked there. This group included Katie Williams and Sophie Brown. Ms Hicks interacted with Ms Williams and Ms Brown for a short period (no more than one minute, on the judge's finding), after which Ms Williams went to the site office to report that Ms Hicks was present. At that point, Ms Hicks left voluntarily.
The case stated and the agreed summary of the evidence
The case stated was originally prepared on 22 April 2022. On 10 October 2022, Sir Ross Cranston, sitting as a judge of this Court, noted that the first question related to the evidential sufficiency of the judge's finding that the appellant's behaviour was “threatening, abusive or disorderly”. The judge had set out some of the evidence in the case stated, but Sir Ross Cranston considered that the court would need a fuller account. This would require the parties to prepare an agreed version of the evidence to assist the judge in his task. The case stated was accordingly returned to the judge with a direction that the parties prepare an agreed summary of the evidence.
The agreed summary was duly prepared. Rather than substantively amend the body of the case stated, the judge included one additional paragraph to the effect that the parties had drafted an agreed summary of the evidence, which was appended to the new version of the case stated, dated 28 November 2022. The agreed summary may therefore be treated as forming part of the case stated.
Ms Williams' evidence was that the conversation with Ms Hicks lasted for about 30 seconds. Ms Hicks was “hostile, quizzical and offensive”, said that she paid their wages through taxes and could film if she wanted. Ms Hicks was “loud and sharp in tone, and it was not a pleasant tone”. Ms Williams said: “the hospital is not the correct place to express those views” and “everyone is entitled to an opinion, but to film a closed department is a breach of confidentiality, so I knew I needed to go and seek help. I didn't know if people were outside waiting to attack us.” Ms Hicks did not, however, say anything personal to her, touch her or threaten her. Ms Williams said: “coming into contact with someone who says they have the right to film, it was aggressive, so I took myself out of the situation”, and “that's what was distressing, that it took my time away from people who needed it”.
Ms Brown's evidence was that Ms Hicks was “abrupt”, “belittling”, “not necessarily aggressive or swearing, just sort of inflammatory. She was trying to walk away from us and thought she was better than us really”; she “started asking a lot of questions about my opinions and hospital and the lockdown”; she did not shout or swear; “she said Covid was a hoax and a shambles, which was aggressive and accusative”. Ms Hicks held the phone an arm's length from Ms Brown's face, pointed at her face, but she accepted that, given the width of the stairwell, it would not have been possible for Ms Hicks to stand more than a metre and a half away. Ms Brown said: “it was more the disrespect, the violation of my personal space”; “the main thing was that I had seen the video and seen how popular it was and that there were lots of comments. After having the camera in my face, I thought that I might be seen by thousands of people who might be abusive, which was intimidating”; and she confirmed that her distress was caused “partly by the possible repercussions of the video” and partly due to DH's “tone”. Ms Hicks did not touch anyone in the group, and did not make any threats or personal comments.
Ms Hicks gave evidence that she was a long-standing political campaigner and had formed the view that the Covid-19 pandemic had led to inappropriate restrictions of civil liberties. When she encountered the group on the stairwell, she tried to avoid their attention. When asked what she was doing, she had answered: “Do you not feel the public have a right to know what's going on? We pay taxes for the NHS.” She did not want to have this conversation, but she had been unable to get past the group of workers on the stairwell. She had no intention to distress anyone.
The facts found by the judge, as recorded in the case stated
The parts of the case stated where the judge recorded his findings of fact were as follows:
“25… I found that both Ms Williams and Ms Brown gave evidence that was cogent, credible and without exaggeration. Their accounts stood up well to cross examination.
26. Whilst it is clear that Ms Hicks did not, at first, seek confrontation with these two women on that stairwell, once enquiry was made as to whether she required ‘any help’ a confrontation did develop. And once engaged with them I have no doubt that both Ms Williams and Ms Brown did feel threatened and abused by Ms Hicks' words and behaviour on the stairwell of these hospital premises that afternoon. That she was aggressive and dismissive of them and attempted to conduct a non-consensual interview with them whilst holding a mobile camera phone towards their faces at arms-length and apparently filming them. Both women were visibly distressed when giving evidence about the contemporaneous impact of Ms Hicks' behaviour upon them. Both told me that they were intimidated by Ms Hicks and were concerned that any film that she was taking with her camera phone was being streamed online and that they might be identified from that footage later.
27. Both were aware of and had seen the video footage livestreamed by Ms Hicks the previous day. Both told me that in view of their own recent experiences they found that footage and what was said by Ms Hicks in her running commentary distressing. Both told me that they were aware – contemporaneously – of online comments made by others (so called antivaxxers and the like) which demonstrated the strength of feeling about the issue Ms Hicks sought to highlight.
28. Both women also expressed concern for the confidentiality of patients in that place — at the hospital. Ms Williams was so alarmed that she sought help immediately, reporting what had happened to the site office – ‘raising the alarm’ as she put it — so that Ms Hicks might be removed from the hospital. Both witnesses described this all to me on oath and, taken together my finding of fact is that Ms Hicks' behaviour clearly did amount to harassment and was threatening and abusive to both Ms Brown and Ms Williams.
29. I am also sure as to Ms Hicks' subjective state of mind, namely that she was bound to be aware in all of these circumstances, that her behaviour might be threatening and/or abusive to others. Ms Hicks' own case is that her attendance at the hospital was ‘undercover’. Clearly she understood that she had no business being at the hospital; that she should not be there. In fact her livestream video commentary demonstrates Ms Hicks making efforts not to be noticed at all. I am also struck by the fact that, despite having the ability to do so, Ms Hicks decided, on reflection, not to live stream the...
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