Percy v DPP

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date21 Dec 2001
Neutral Citation[2001] EWHC 1125 (Admin)
Docket NumberNO: CO/3212/01

[2001] EWHC 1125 (Admin)





Lord Justice Kennedy and

Mrs Justice Hallett

NO: CO/3212/01

Director of Public Prosecutions

MR K STARMAR and MR P MENON (instructed by Birnberg Peirce & Partners, London NW1 7HJ) appeared on behalf of the Claimant

MR J FARMER and MR HUGO KEITH (MISS G GIBBS for judgment) (instructed by Treasury Solicitor) appeared on behalf of the Defendant

Friday, 21st December 2001


On 11th and 18th May 2001 the appellant stood trial at the Thetford Magistrates' Court on charges of obstructing the highway and using threatening, abusive and insulting words or behaviour likely to cause harassment, alarm or distress contrary to section 5 of the Public Order Act 1986. It is only the latter charge which concerns this court. District Judge Heley having heard evidence and submissions convicted her of both offences and she was fined a total of £300 and ordered to pay costs. The maximum penalty on conviction for an offence under section 5 is a fine of £1000.


The convictions arose from the appellant's behaviour at an American air base at RAF Feltwell. The appellant is a co-ordinator of an organisation called the "Campaign for Accountability of American Bases" and has experience over many years of protesting against the use of weapons of mass destruction and against American military policy, including the Star Wars National Missile Defence System. She believed that the base at Feltwell would have a part to play in such a system. She defaced the American flag by putting a stripe across the stars and by writing the words "Stop Star Wars" across the stripes. She stepped in front of a vehicle and she placed the flag down in front of it and stood upon it. Those affected by her behaviour were mostly American service personnel or their families, five of whom gave evidence of their distress to varying degrees. They regarded her acts as a desecration of their national flag to which they attach considerable importance. The District Judge rejected the appellant's evidence that she was unaware of the effect of her conduct upon those present. He relied upon various passages of her evidence which, in his judgment, indicated that she understood the importance that many Americans, particularly military personnel, attach to their national flag as a symbol of freedom and democracy. The court concluded from her failure to offer any explanation save that "it was a spontaneous protest" to place the flag on the floor and stand upon it, that her actions were calculated to offend. The court found that the appellant's behaviour with the flag was insulting to American citizens at whom it was directed.


The appellant did, however, satisfy the court that her behaviour was motivated by strongly held beliefs that the " Star Wars" project was misguided, posed a danger to international stability and was not in the best interests of the United Kingdom. She failed to persuade the court that her conduct on the balance of probabilities was reasonable. Having made his findings of fact, which on the evidence called before him are unimpeachable, the District Judge then turned to the impact of Article 10 of the European Convention on Human Rights on section 5 of the Public Order Act. He acknowledged that Article 10 applied and that it protected an individual's right to express views which are unpopular and offensive to others. He highlighted, however, that under Article 10(2) the right is not unqualified. The exercise of the right to freedom of expression carries attendant duties and responsibilities and so may be restricted and made subject to penalties, provided they there are prescribed by law and are necessary in a democratic society (for example, for the prevention of disorder, or for the protection of the rights of others). The court considered in this case the risk of disorder and criminal offences by others to be slight. His only concern, therefore, was as to the protection of the rights of others. So far so good. No one takes exception to his approach to this point.


The District Judge went on to consider, however:

"The need to protect the rights of American service personnel and their families occupying the base to be free from gratuitously insulting behaviour in the ordinary course of their professional and private lives and their right to have their national flag, of significant symbolic importance to them, protected from disrespectful treatment."


He concluded with these words when dealing with the Article 10 provisions:

"The court found two aspects of this balancing exercise to be of particular significance. First, it was satisfied that there is a pressing social need in a multi-cultural society to prevent the denigration of objects of veneration and symbolic importance for one cultural group. Secondly, it was quite clear that the defendant's conduct which offended against section 5 was not the unavoidable consequence of a peaceful protest against the ' Star Wars' project, which was the defendant's stated intention, but arose from the particular manner in which the defendant chose to make her protest. The court finds the restrictions and penalties attached by section 5 to the defendant's article 10 right to freedom of expression to be necessary in a democratic society for the protection of the rights of others and proportionate to the need to protect such rights."


He accordingly held that there would be no violation of the appellant's right under Article 10 in convicting her of an offence under section 5.


The questions posed for this court in the case stated are:

(i) Was the appellant's conviction under section 5 of the Public Order Act 1986 compatible with Article 10 of the European Convention on Human Rights and Fundamental Freedoms?

(ii) If the answer to question (i) is "No", should the appellant's conviction under section 5 of the Public Order Act be quashed?


The provisions under Article 10 and section 5 so far as relevant to these proceedings are as follows:

"Article 10(1)

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the prevention of disorder or crime … for the protection of the reputation or rights of others…"


Section 5(1) of the Public Order Act reads as follows:

"A person is guilty of an offence if he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour…

Subsection (3) reads as follows:

"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 distress, or…

(c) that his conduct was reasonable."


Section 6(4) reads:

"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."


Mr Keir Starmer, on behalf of Ms Percy, the appellant, takes no point upon the fact that under section 5(3) the burden is on the accused to establish on the balance of probabilities that her conduct was reasonable. He does, however, take comfort from the fact that the court must be satisfied that the conduct was unreasonable before convicting. This, he says, ensures that the accused's right to freedom of expression under Article 10 of the European Convention is brought into play.


Mr Starmer originally sought a declaration of incompatibility between section 5 of the Public Order Act and Article 10. In argument, however, he accepted the force of the submissions made by Mr Keith, on behalf of the Secretary of State, that the court's discretion to make a declaration of incompatibility under section 4 of the Human Rights Act 1998 is a remedy of last resort. A court shall seek to avoid making a declaration unless the clear and expressed wording of the statute under review makes it impossible. The application of a general rule of interpretation pursuant to section 3 of the Human Rights Act 1998 is required only where the clear words of the statute demand in every case the determination of an issue in such a way that apparently violates a Convention right. A prosecution under section 5 may not engage the right under Article 10 in any way. Mr Keith gave as an example the case of Vigon v the Director of Public Prosecutions [1998] 162 JPR 115 where a man was found guilty of insulting behaviour on the basis that he operated a partially concealed camera in a woman's changing room.


Mr Keith submitted, therefore, that where the matter is one of discretion for the decision-maker on the facts of a particular case, as here, and where there is only the possibility that the operation of the primary legislation might violate a Convention right, there is no requirement to apply the strong interpretative remedy of section 3 by way of general rule or, indeed, the incompatibility provision. If a public authority, including a court, acts in breach of its Convection obligations in an individual case, the proper remedy can be found in sections 6 to 8 of the Human...

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