DPP v Clarke and Others
| Jurisdiction | England & Wales |
| Judgment Date | 30 July 1991 |
| Date | 30 July 1991 |
| Court | Queen's Bench Division |
Queen's Bench Divisional Court
Before Lord Justice Nolan and Mr Justice Rougier
Public order - threatening behaviour - reasonable conduct - objective test
The defence of reasonable conduct in section 5(3)(c) of the Public Order Act 1986 to a charge of using threatening, abusive or insulting behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress contrary to sections 5(1)(b) and 6 of the 1986 Act was to be viewed objectively.
The words "is aware that it may be threatening, abusive or insulting" in section 6(4) imputed a subjective awarenesss on the part of the defendant.
The Queen's Bench Divisional Court so held in a reserved judgment in dismissing an appeal brought by the prosecution by way of case stated against the decision of Stockport Justices on February 28, 1990 to acquit each of the defendants, Michael Edward Clarke, Maurince Wilfred Lewis, Kathleen Marie O'Connell and Katherine Scott O'Keefe of an offence contrary to sections 5(1)(b) and 6 of the 1986 Act.
Mr Anthony Gee, QC, for the prosecution; the defendants did not appear and were not represented.
LORD JUSTICE NOLAN said that the events which gave rise to the charges took place outside a licensed abortion clinic. Each of the defendants was carrying a picture of an aborted foetus at the time of arrest.
The justices applied an objective test and concluded in relation to section 5(3)(c) that the conduct of each of the defendants was not reasonable. But, applying section 6, and using a subjective test they concluded that on the balance of probabilities none of the defendants intended the picture displayed to be threatening, abusive or insulting, nor was any of them aware that the picture might be threatening, abusive or insulting.
In the questions posed for the opinion of the High Court the justices asked whether they were right to apply those tests: the answer in both cases was "yes".
The prosecution argued, however, that the only reasonable conclusion open to the justices was that each of the defendants was aware, at the very least, that the display of the picture might be abusive or insulting.
The prosecution referred to the intentional display of the pictures of an aborted...
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