Maurice Lewis v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,MR JUSTICE KEENE |
| Judgment Date | 07 March 1995 |
| Neutral Citation | [1995] EWHC J0307-5 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 3447/94 |
| Date | 07 March 1995 |
[1995] EWHC J0307-5
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(DIVISIONAL COURT)
Before: Lord Justice Pill and Mr Justice Keene
CO 3447/94
MR J FINNIS (instructed by Martin Cray & Co, 177 Edward Street, Brighton, East Sussex BN2 2JB) appeared on behalf of the Appellant.
MR R GRIFFITHS (instructed by Solicitors for the Crown Prosecution Service) appeared on behalf of the Respondent.
This is a defendant's appeal by way of case stated from the Crown Court at Knightsbridge, Mr Recorder G Owen QC and Justices. On 15th February 1994 they heard an appeal against the conviction of Maurice Lewis at Wells Street Magistrates' Court on 3rd September 1993. The Appellant had been charged with an offence committed on 22nd May 1993, that, at Manstone Road, London NW2, he had displayed writing, sign or other visible representation which was threatening, abusive or insulting within the hearing or sight of a person likely to be caused harassment, alarm or distress, thereby contrary to section 5(1) of the Public Order Act 1986.
The facts as found by the Court were that on 22nd May 1993 police officers attended at the premises of the Marie Stokes Clinic in London NW2. Their attention was drawn to a placard which was being displayed by a group of six or seven people, including the Appellant, who were protesting against abortions being carried out inside the clinic. The Court found that at the relevant time the behaviour of those present was orderly and, indeed, that their principal purposes in going there were to pray, hand out leaflets and offer counselling.
The placard is described in paragraph 2(ii) of the case:
"The dimensions of the placard were approximately 2 1/2 feet by 1 1/2 feet. There were very graphic colour pictures on both sides of the cardboard. On one side was what looked like the decomposed body of a baby in pieces; on the other was a baby lying in a pool of blood and afterbirth with the legend '21 WEEK ABORTION'."
Witnesses had generally used the word 'baby' and that is no doubt why the Court adopted it in their findings. One witness had used the word 'foetus'.
Within the hearing of the Appellant, Constable Howells spoke to a woman holding the placard and told her that he found it offensive and asked her to stop displaying it. He made reference to the 1986 Act. Constable Howells requested the attendance of his Section Sergeant, Police Sergeant Phillips, who also spoke to the group of protesters and explained to them the significance of section 5 of the 1986 Act. The woman agreed not to display the placard, whereupon the Appellant picked it up and held it above his head on the pavement outside the clinic. He held it so that it could be seen by those inside the premises as well as by those entering and leaving. The placard was observed by Miss Smith, a patient inside the clinic. The Court found that she was caused considerable distress by the picture of the baby on the placard. It made her feel sick.
Sergeant Phillips again warned the Appellant to desist from his action in displaying the placard in that location. When the Appellant ignored that warning, the officers dispossessed him of the placard and arrested him for a section 5 offence.
The Justices found that the Appellant had believed that:
"…..something wrong was going on inside the clinic, albeit under the Abortion Act 1967 abortion is lawful under certain circumstances."
The Magistrates expressed their findings in this way:
"However, the Appellant did display a placard which was abusive and insulting. He did so deliberately in the sight of persons likely to be caused harassment, alarm and distress by it. Moreover, he intended the representations on the placard to be abusive and insulting and was aware that it may have that effect upon those in whose sight he held it up. After the woman in his group had acceded to the Sergeant's request to desist from displaying the placard he picked it up and held it aloft. Even after he himself had been asked to desist and had been warned of the consequences if he did not, he still held it up in full view of those inside the clinic as well as those entering and leaving the premises. For that reason we found that his conduct was unreasonable and his defence under section 5(3)(c) therefore failed."
The submission made to the Court as recorded in the case is that:
"It was contended that his defence [under section 5(3)(c)] must succeed because he was attempting to express his sincere beliefs about what he considered to be the evil of abortion."
After recording the dismissal of the appeal, the Court posed the question in this way:
"Were we entitled on the evidence to uphold the Appellant's conviction of the offence under section 5(1) of the Public Order Act 1986?"
Section 5(1)(b) of the Act provides:
"A person is guilty of an offence if he-
(b) 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 thereby."
Section 5(3)(c) provides:
"It is a defence for the accused to prove-
(c) that his conduct was reasonable."
Section 6(4) provides:
"A person is guilty of an offence under section 5 only if he intends his words, or behaviour, or the writing, sign or other visible representation, 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 has rightly been stressed that what is alleged against the Appellant is a 'display' and not 'behaviour'.
It is common ground that the Court's finding as to intention stands or falls with the Court's finding as to whether the display was capable of being abusive or insulting.
The question to this Court is put in the general way of asking whether the conviction was justified, but three specific submissions are made. First, it is submitted that the contents of the placard displayed outside the clinic were not capable of amounting to what was abusive or insulting within the meaning of section 5(1)(b). "The question whether the placard was abusive or insulting was essentially one for the Justices." (Nolan LJ in DPP v Clarke [1992] 94 Cr.App.R. 359, 366, citing Brutus v Cozens [1973] AC 854.) "There must, however, be limits in order to ensure that the statute is not interpreted more widely than its words bear." (Lord Kilbrandon in Brutus at page 866.)
The point taken is that the photograph on the placard was an accurate representation of the result of abortion, and that what is truthful cannot be abusive or insulting within the meaning of the statute. There are differing views about the morality of abortion, but what was being done at the clinic was a lawful activity and acceptable to those engaged in it in the circumstances in which they found themselves. A patient (or it appears to me someone visiting a patient, or a member of staff at the clinic) may be abused or insulted in having the result of the activities at the clinic (lawful activities in this case) depicted in the way they were on the placard. The Court was entitled to find that the placard was abusive and insulting.
Secondly, it is submitted that, while the test under section 5(3)(c) as to whether the conduct is reasonable can only be answered by reference to an objective standard of reasonableness ( Clarke at page 365), that test must be applied to the facts as the defendant honestly believes them to be. An honest belief in consent is a defence to rape, and an honest belief in a threatened attack can be a defence to what otherwise would be an assault.
The analogy is not sound. In those cases the defendant's belief as to what is happening may be different from the actual state of affairs, and the tribunal of fact can take that into account. In this case the Appellant's belief as to what is happening in the clinic accords with the actual state of affairs. His belief as to what is happening is no different from anyone else's belief. What is different is his view about the morality or the lawfulness of those events. The genuineness of his motivation may be a factor that the Court can take into account in its overall view of the reasonableness of his conduct when considering a defence under section 5(3)(c) but he is not entitled in law to have his conduct judged only on the basis of his own moral stance or beliefs.
The third submission is that the Court reached its conclusion that the Appellant's conduct in displaying the placard was unreasonable because of the police sergeant's view that the Appellant's conduct was unlawful. Of course I agree with the submission that a police sergeant's belief that a display is abusive or insulting and his view that conduct is unreasonable does not bind the Court. The Court must form its own view on those...
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