Divisional Court
| DOI | 10.1350/jcla.69.1.8.58960 |
| Published date | 01 February 2005 |
| Date | 01 February 2005 |
| Subject Matter | Divisional Court |
Public Order Act 1986, s. 5—Compatibility with
European Convention on Human Rights
Hammond v DPP [2004] EWHC 69 (Admin), [2004] Crim LR 851
On 13 October 2003, the appellant was preaching in The Square, Bour-
nemouth. He was an evangelical Christian who had been a preacher for
20 years. In order to augment the impact of his preaching, the appellant
had a large, double-sided sign with the words ‘Stop Immorality’, ‘Stop
Homosexuality’, and ‘Stop Lesbianism’, on each side. The sign was
clearly visible to passers by.
As he was preaching, a crowd of 30–40 people gathered around the
appellant and began shouting and arguing with him, clearly agitated
both by the sign and by his preaching. At one point, someone tried to
pull the sign from him and the appellant fell to the ground. In spite of
this, he continued with his preaching whereupon a member of the
public poured a glass of water over him.
Police officers attended the scene and requested the appellant to take
down his sign but the appellant refused. Whilst the police officers were
deciding on an appropriate course of action, they were approached by
several members of the public who expressed outrage that the appellant
had not been arrested. The police officers decided that the appellant was
provoking violence. He was arrested for breach of the peace and was
subsequently charged with an offence contrary to s. 5 of the Public
Order Act 1986. Section 5(1)(b) of the 1986 Act provides that a person
will be guilty of an offence if he 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. The terms of s. 5 of the 1986 Act do not actually require any
person to be harassed, alarmed or distressed but merely that harass-
ment, alarm or distress must be likely to be caused to a person in whose
hearing or sight the accused’s conduct occurs. Whether such words or
writing will be considered threatening, abusive or insulting is a matter of
fact. The mens rea for an offence under the 1986 Act is to be found in
s. 6 of the Act. It states that the accused must either intend his words or
the writing to be offensive or be aware that they may be offensive. The
appellant, in his conversation with police officers, had stated that he
acknowledged that the sign could be insulting and indeed had received
a similar reaction when he had used the sign to preach on previous
occasions.
At trial, the justices decided that the words displayed on the appel-
lant’s sign were, in fact, insulting and that they had caused distress to
those persons present, a number of whom had given their names to
police. It was held that the appellant was aware of the distress his sign
was causing and he was, accordingly, found guilty. In his defence, the
appellant relied on s. 5(3)(c) of the 1986 Act. This provides that it is a
8
Public Order Act 1986, s. 5—Compatibility with European Convention
defence for an accused to prove that his conduct was reasonable. The
appellant maintained that under Article 10 of the European Convention
on Human Rights he had the right to free speech and that this was
enshrined into English law by virtue of the Human Rights Act 1998. The
appellant stated that the court should read s. 5(3)(c) of the 1986 Act in
a way that is compliant with his rights under the Convention. Therefore,
the appellant maintained that his behaviour should be interpreted as
being reasonable. However, the justices stated that since he had refused
to stop displaying the sign when it was clearly causing such offence, the
appellant’s behaviour was not reasonable and as such did not bring him
within the defence laid down in s. 5(3)(c) of the 1986 Act. The justices
felt that there was a pressing social need to restrict the appellant’s right
to freedom of expression under Article 10 of the European Convention
on Human Rights in order to promote tolerance towards all sections of
society. Additionally, the restriction of the appellant’s right to freedom of
expression was deemed to be legitimate when balanced against the
threat of disorder from the crowd of people reacting to the sign.
The case stated posed a number of questions relating to the inter-
action between the appellant’s conviction and his rights under the
Convention. It was argued that the justices had misdirected themselves
in finding the words on the sign insulting and that a proper application
of the Convention should have led to the acquittal of the appellant.
Specifically, did the arrest and subsequent conviction under s. 5 repre-
sent a proportionate response to the appellant’s behaviour? Also, should
his freedom of expression under Article 10 of the Convention have been
qualified and restricted for the prevention of disorder or crime? The
point was also raised as to whether the appellant had any protection
under rights enshrined in Article 9 of the Convention, namely the
freedom of thought, conscience and religion. The final question, a
broader one, concerned itself with whether Articles 9 and 10 actually
required the authorities to protect the appellant and individuals like him
where any threat of violence and disorder emanated from others
present.
HELD, DISMISSING THE APPEAL, the justices in this case were entitled to
conclude on the facts which they found that an offence had been made
out under s. 5 of the Public Order Act 1986. Despite the fact that the
words on the sign were not expressed in intemperate language, the
court agreed with the magistrates that they did appear to equate homo-
sexuality and lesbianism with immorality. Accordingly, it was open to
the magistrates to reach the conclusion, under the terms of s. 5(1)(b) of
the 1986 Act that as a matter of fact, that the words ‘Stop Immorality’,
‘Stop Homosexuality’ and ‘Stop Lesbianism’ could be insulting.
In relation to the question of reasonableness, in light of Articles 9 and
10 of the Convention, the court held that the magistrates...
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