Norwood v DPP
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Mr Justice Goldring |
| Judgment Date | 03 July 2003 |
| Neutral Citation | [2003] EWHC 1564 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1742/2003 |
| Date | 03 July 2003 |
Lord Justice Auld and
Mr Justice Goldring
Case No: CO/1742/2003
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Miss C Miskin (Instructed by Hallinan, Blackburn, Gittings & Nott) for the Appellant
Mrs Janet Pitt-Lewis (instructed by Crown Prosecution Service) for the Respondent
The appellant appeals by way of case stated from his conviction by District Judge Browning at Oswestry Magistrates Court on 13 th December 2002, of an offence of causing alarm or distress under section 5 (1) (b) of the Public Order Act 1986, aggravated in the manner provided by sections 28 and 31 of the Crime and Disorder act 1998 (as amended by section 39 of the Anti-terrorism, Crime and Security Act 2001).
The nature of the statutory offence charged
Section 5 provides, so far as material:
"(1) 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.
(2) An offence under this section may be committed in a public or a private place ….
(3) It is a defence for the accused to prove – (a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or duress, or (b) that he was inside a dwelling and had no reason to believe that the words or the behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or (c) that his conduct was reasonable."
Those provisions should be read with section 6(4) of the 1986 Act, which provides:
"A person is guilty of an offence under section 5 only if he intends … the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting …"
The 1998 Act, as amended, introduced a statutory aggravation to a number of offences, including section 5 of the 1986 Act, carrying with it higher maximum penalties than the offences would have carried without such aggravation. Section 31 (1) (c) made it an offence under that section for a person to commit an offence under section 5 of the 1986 Act which is "racially or religiously aggravated" if, as provided in section 28(1)(b) of the Act "the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group". And, for this purpose, section 28(5) provides that "religious group" means "a group of persons defined by reference to religious belief or lack of religious belief".
The facts
The charge of which the appellant was convicted was of displaying a sign in the form of a poster which was threatening abusive or insulting within the hearing or sight of a person to whom it was likely to cause harassment alarm or distress, and which was religiously aggravated in accordance with the above provisions.
The Magistrate found the following facts, which I take from paragraph 2 of the case stated. On 9 th January 2002 the appellant displayed a poster, measuring about 24 inches wide and 15 inches deep, in the first-floor window of his flat in Gobowen, a small rural town in Shropshire, containing words in very large print "Islam out of Britain" and "Protect the British people". And it bore a reproduction of a photograph of one of the twin towers of the World Trade Centre in flames on 11 th September 2001 and a Crescent and Star surrounded by a prohibition sign.
The poster had been supplied by, and bore the initials of, the British National Party, of which the appellant was the regional organiser for Shropshire. It had been displayed continuously since a date in November 2001 in one window or another of his flat and was clearly visible to passers-by. A member of the public, Mr. Karl Davies, who was offended by the poster when he saw it on 9 th January 2002, reported the matter to the Police.
The Police visited the appellant's flat and removed the poster. On the following day a police officer telephoned the appellant and invited him to attend the local police station for interview. The appellant declined to do so and made no statement.
The District Judge heard evidence from Mr. Davies, who said that he had felt quite sick when he had seen the poster and had thought that it would cause offence. The District Judge also heard evidence from two police officers. Police Constables Barnes and Butcher. PC Barnes said that he considered the poster to be in bad taste and inflammatory. PC Butcher said that the poster left a "bad taste" and that, having worked in London, he knew the kind of violence "this sort of material" could stir up, namely distress and racial feeling in the area.
The appellant and Nicholas John Griffin, the Chairman of the British National Party, gave evidence for the defence. The appellant said that the poster had been issued by the British National Party, of which he was a member and the local regional organiser; that it was intended to refer to Muslin extremism in the light of the attack of 11 th September; and that he did not consider the poster offensive or emotive. Mr Griffin said that 10,000 copies of the poster had been printed and distributed to members of British National Party branches; that they were intended primarily for use at demonstrations, including one in Parliament Square, which had not led to any prosecutions; that the poster was a "slogan against creeping Islamification" and that he did not agree that the poster was offensive to Muslims.
The appellant's case before the District Judge was that: the poster was not abusive or insulting; that there was no evidence of anyone having been harassed, alarmed or distressed by it —in particular no Muslim had been called to give evidence; if the offence was not religiously aggravated, there was no power to convict him of the basic offence under section 5, which should have been charged in the alternative; conviction of him would infringe his right to freedom of expression under Article 10.1 of the European Convention on Human Rights and would be wrongfully discriminatory, in contravention of Article 14.
The respondent/prosecutor's case before the District Judge was that: the contents of the poster were threatening, abusive or insulting, as they suggested that Muslims were not welcome in this country, and that they were within sight of persons likely to be caused harassment, alarm or distress; the offence was religiously aggravated as provided by sections 28 and 31 of the 1998 Act; the appellant was not entitled to the protection of Article 10.1 since the restrictions imposed by section 5 of the 1986 Act fell within Article 10 (2), which permits the restriction of the right in ways prescribed by law and which are necessary in a democratic society for the protection of the rights of others; the Article 10 right was also overridden in the circumstances by the prohibition in Article 17 against abuse of Convention rights of others; and, as the appellant was not entitled to rely on Article 10, Article 14 was not engaged.
The District Judge convicted the appellant and fined him £300. In doing so, he found that: the poster was abusive and insulting to Islam and, on its terms and in its symbols, to the followers of that religion; it was likely to cause harassment, alarm or distress; its display was not objectively reasonable within section 5(3) (c) of the 1986 Act; the offence was religiously aggravated in that it was, as provided by section 28(1)(b) of the 1998 Act, motivated (wholly or partly) by hostility towards members of a religious group based on their membership of that group; Article 10.1 was engaged, but the restrictions on it imposed by section 5 of the 1986 Act were, on the facts, saved by the provisions of Article 10.2 subjecting the right to freedom of expression to restrictions prescribed by law that pursued a legitimate aim and were necessary in a democratic society for the prevention of disorder or crime and for the protection of the rights of others, a saving that was supported by Article 17; and Article 14 was not engaged and there was, in any event, no evidence to support the appellant's recourse to it.
The case stated and the structure of the statutory offence
By the case stated, the District Judge has asked the Court whether he correctly found that; the poster was insulting; that it was likely to cause alarm or distress; that its display was not objectively reasonable; that the offence was religiously aggravated; and that the right to freedom of expression in Article 10 did not entitle the appellant to display the poster. In the light of the Court's answers to all those questions, he asked finally, did he correctly convict the appellant.
Before considering each of the questions and the submissions of counsel on them, I should say something about the structure of the offence created by section 5 of the 1986 Act and of the religious aggravation of it as provided in sections 28 and 31 of the 1998 Act.
First, as to section 5 – Its structure is to require proof by the prosecution of the following four elements: 1), a fact —display by a defendant of a visible representation; 2), a value-judgment that the representation is threatening, abusive or insulting; 3), a fact —that the defendant either intended, or was aware that it might be, threatening, abusive or insulting; and...
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