Lee Brown and Public Prosecution Service for Northern Ireland
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2022] NICA 5 |
| Date | 31 January 2022 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2022] NICA 5
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: KEE11716
ICOS No: 18/111795/A02
Delivered: 31/01/2022
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
ON APPEAL FROM THE COUNTY COURT BY WAY OF CASE STATED
PURSUANT TO ORDER 61 OF THE RULES OF THE COURT OF JUDICATURE
(NORTHERN IRELAND) 1981 AND ARTICLE 61 OF THE
COUNTY COURT (NORTHERN IRELAND) ORDER 1980
___________
Between:
LEE BROWN
Appellant
and
PUBLIC PROSECUTION SERVICE FOR NORTHERN IRELAND
Respondent
___________
Ms Quinlivan QC with Mr Moriarty (instructed by Madden & Finucane Solicitors) for the
Appellant
Dr McGleenan QC with Mr Henry (instructed by the PPS) for the Respondent
___________
Before: Keegan LCJ, Treacy LJ and Sir Declan Morgan
___________
KEEGAN LCJ (delivering the judgment of the court)
Introduction
[1] This is an appeal by way of case stated which involves consideration of a legal
question as to whether the appellant’s conviction for an offence under the Public
Order (Northern Ireland) Order 1987 (“the Order”) is lawful.
[2] The conviction can only be lawful if all of the ingredients of the offence are
established and the conviction is compatible with the right to freedom of expression
contained in Article 10 of the European Convention on Human Rights (”the ECHR”).
This question requires consideration as to whether the facts of this case constitute
2
“hate speech” which can be punished by criminal sanction within the meaning of the
case law of the European Court of Human Rights (“ECtHR”).
[3] The term “hate speech” does not appear in the public order legislation under
which the appellant was convicted. However, the term hate speech is understood to
mean any kind of communication in speech, writing or behaviour that attacks or
uses pejorative or discriminatory language with reference to a person or a group on
the basis of who they are, in other words, based on their religion, ethnicity,
nationality, race, colour, descent, gender or other identity factor (per United Nations
Strategy and plan of action on Hate Speech, May 2019). To come within the domestic
criminal law the hate speech must also cause hatred or fear of those it is directed
against. This can in extreme cases manifest itself as violence but it can also cause
discrimination and intolerance. The fact that the expression in question involves
hate speech and is intended or likely to stir up hatred or fear does not in principle
preclude it from falling within the scope of Article 10, however whether the speech
is protected by the Convention will depend on the specific facts and context of the
case.
[4] In this case the conviction arises as a result of events on 20 October 2018. On
that day the appellant assisted in the distribution of leaflets to households in
Ballymena on behalf of a far right political party called Britain First. The first page of
the leaflet contained some images of people from an ethnic minority background
and the following narrative:
“The people of Ballymena are furious at the massive
influx of gypsy migrants from Eastern Europe.
Anti-social behaviour has become common place and
there have been attacks by migrants on local residents.
Many local houses that could have been given to local
people have been handed out to bus-loads of these
migrants. Most of these migrants are given benefits
draining council resources that could have been spent on
the people of Ballymena. This is not just a few migrants ,
but a deluge of immigrants that has virtually changed the
face of Ballymena. The local politicians, council and
police are ignoring the complaints of local residents who
are fed up of this enormous influx into the local area.
Britain First is leading the campaign against this huge
wave of immigration and we are demanding an
immediate halt to any further migrant placement in
Ballymena. Enough is enough, this is our town! It is time
we forced the politicians to listen to the people of
Ballymena!”
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