The King (on the application of director of Public Prosecutions) v Manchester City Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Fordham J,Mr Justice Fordham,Lord Justice Popplewell |
| Judgment Date | 21 November 2023 |
| Neutral Citation | [2023] EWHC 2938 (Admin) |
| Docket Number | Case No: CO/763/2023 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 2938 (Admin)
Lord Justice Popplewell
Mr Justice Fordham
Case No: CO/763/2023
AC-2022-LON-000887
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Tom Little KC and James Boyd (instructed by CPS) for the Claimant
Tom Wainwright and Elena Papamichael (instructed by Kellys Solicitors) for the First Interested Party
Owen Greenhall and Mira Hammad (instructed by Robert Lizar Solicitors) for the Second Interested Party
Hearing date: 26.10.23
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Fordham J Mr Justice Fordham Introduction
On 15 November 2022 at Manchester Magistrates' Court, Senior District Judge Goldspring (“the Judge”) acquitted the Interested Parties of an offence of using threatening, abusive or insulting words or behaviour with intent, contrary to s.4A of the Public Order Act 1986 (“the 1986 Act”). By an application dated 5 December 2022, the Prosecution asked the Judge to state a case for an appeal to the High Court pursuant to s.111 of the Magistrates' Courts Act 1980 (“the 1980 Act”). The application identified as the decision sought to be appealed the acquittal of the Interested Parties on the basis that “the interference” with their Article 10 and/or Article 11 Convention rights (the “Convention Rights”) was “disproportionate”, and their conduct was “therefore reasonable” under s.4A(3)(b) of the 1986 Act. The Judge was invited to state this question: “was there sufficient evidence on which I could reasonably find as a fact that the [Interested Parties'] conduct amounted to a reasonable exercise of their Convention rights”? The Judge refused to state a case, on the basis that the application was “frivolous”, and issued a reasoned certificate to that effect (“the Certificate”) pursuant to s.111(5) of the 1980 Act. This is the Prosecution's claim for judicial review of the acquittal decision, and the decision not to state a case, for which permission for judicial review was granted at an oral hearing on 22 June 2023.
Section 4A(1) and (3)(b) of the 1986 Act provide:
(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he – (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress… (3) It is a defence for the accused to prove – … (b) that his conduct was reasonable .
I am going to describe as “elements” of the s.4A(1) offence: the necessary conduct (“uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or displays any writing, sign or other visible representation which is threatening, abusive or insulting”); the necessary intent (“intent to cause a person harassment, alarm or distress”); and the necessary consequence (“thereby causing that or another person harassment, alarm or distress”). I will refer to s.4A(3)(b) (“[their] conduct was reasonable”) as the “Reasonable Conduct Defence”. There is a related but lesser offence under s.5 of the 1986 Act (harassment, alarm or distress) which also has the Reasonable Conduct Defence (s.5(3)(c)).
The provisions centrally relevant to the Convention Rights are found in the Human Rights Act 1998 (“the HRA”) at ss.3(1) and 6(1) and Schedule 1 Articles 10 and 11. These provide as follows:
3(1). So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights…
6(1). It is unlawful for a public authority to act in a way which is incompatible with a Convention right…
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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary .
Article 11. (1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. (2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State .
The Issues
The claim for judicial review has raised 3 issues. (1) Whether the Judge's decision that the Interested Parties' conduct amounted to a reasonable exercise of Convention rights involved a material misdirection as regards the application of the statutory defence of reasonable conduct. (2) Whether that decision was unreasonable in failing to take into account a number of highly relevant considerations. (3) Whether the Judge was wrong to characterise the application to state a case as frivolous.
Issue (1) – as it developed – has raised two linked but distinct questions: (i) as to the burden of proof (§13–25 below); and (ii) as to the proportionality assessment (§§26–42 below). Issues (1) and (2) are issues of substance which could have arisen on a case stated appeal. The judicial review court, dealing with a challenge to a refusal to state a case, can address such questions directly in an appropriate case: Sunworld Ltd v Hammersmith & Fulham London Borough Council [2000] 1 WLR 2102 at 2106–2107.
The Ruling and Reasoning
The Judge's ruling acquitting the Interested Parties was given orally at the end of a two-day trial on 14 and 15 November 2022. There are two sources on which we can rely as constituting the Judge's reasons, and which also identify the background and context. The first is a note approved by the Judge on 15 November 2022 after giving the ruling earlier that day (“the Approved Note”). It contained text extracted by Mr Smart – the Prosecution advocate – from his contemporaneously-typed notes of what the Judge had said at the hearing. The second source is the Certificate, written by the Judge.
By way of overview, the Judge recorded (Certificate §§3–4):
3. Mr Haslam and Ms Wood were both charged with an offence under s.4A Public Order Act 1986 (the Act). In respect of these offences, the case was not subject to a half time submission and having heard evidence from witnesses for both the prosecution and defence, plus submissions, I acquitted them both .
4. I emphasised that my decision set no precedent as to what may or may [not] constitute unlawful behaviour in other circumstances – but that in this case, on these facts, the use of those words did not amount to an offence, as in the circumstances it was reasonable and protected by the Convention .
As to the nature of the incident with which the case was concerned, the Certificate recorded the following within a section entitled “the facts” (Certificate §§5–12):
5. On 4th October 2021, the Conservative Party annual conference was taking place at the Midland Hotel in Manchester. Outside the hotel were a large number of protestors with placards and some with drums. At approximately 15:50 Iain Duncan Smith left the Midland Hotel to walk to the Mercure Hotel for a conference about ‘Brexit’. He was accompanied by his wife, Betsy Duncan Smith, and by Primrose Yorke .
6. Between five and eight protestors, including Ruth Wood, began to follow Mr Duncan Smith remaining some distance behind them at all times .
7. Witnesses gave evidence that some of those following Mr Duncan Smith were shouting and swearing. There was no evidence as to what, if anything, Ruth Wood said or did at this stage .
8. As Iain Duncan Smith crossed a side road, an individual ran up behind him and placed a traffic cone on his head. This individual was said to be Elliott Bovill who stood trial with the two defendants but was found not guilty following a submission made at the close of the prosecution case that the identification was so weak that, following the guidance in Galbraith and Turnbull, no tribunal of fact could properly convict the defendant .
9. Mr Duncan Smith removed the traffic cone, called the protestors ‘pathetic’ and continued on his way .
10. The prosecution case against Ruth Wood was based upon video footage taken at this point in the incident, after the traffic cone had been removed and shortly before Mr Duncan Smith arrived at the Meridian hotel. In the footage, Ruth Wood can be seen and heard banging a drum and shouting, still some distance behind Iain Duncan Smith and his party .
11. The prosecution case was that in...
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