Norwood v Director of Public Prosecutions

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).

Section 5 provides, so far as material:

Those provisions should be read with section 6(4) of the 1986 Act, which provides:

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 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.

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 4), a mixed fact and value judgment - that the display was within sight of a person likely to be caused, harassment, alarm or distress by it.

With such a bumpy collection of elements, it might be thought simplistic to say that the prosecution must prove all of them to the criminal standard of proof – sureness. That is a straightforward enough exercise for the first and second. But with the third, one of the alternative matters to be proved is a defendant’s awareness that the representation "may be" threatening, abusive or insulting – that is, a sureness of an awareness of a possibility As to the fourth, the matter to be proved is a sureness that the display was within sight of someone "likely to be caused" harassment, alarm or distress by it – that is, a sureness of a likelihood. Whilst both of those elements are less straightforward notions than the others, they are, on analysis, logical applications of the criminal standard of proof in that the matter of which such proof is required is of something less than fact, namely of a possibility or a likelihood. Similar routes to a conviction are to be found in many statutory formulations of criminal offences in different contexts.

If, as here, the offence is also alleged to be religiously aggravated, the prosecution must prove to the criminal standard of proof a fifth element, namely that the accused, in committing the offence, was, in the words of section 28 of the 1998 Act, "motivated (wholly or partly) by hostility towards members of a religious group based on their membership of that group".

Putting aside for a moment, the aggravated form of the offence, if the prosecution prove the first four matters to the criminal standard, the basic section 5 offence is established unless the defendant can take advantage of one or more of the three defences provided by section 5(3)(a) (b) and (c) which, as the subsection states, are for him "to prove". It was suggested by Miss Claire Miskin, who appeared on behalf of the appellant, that that provision did not impose on a defendant a burden to establish any of those defences on a balance of probabilities. She maintained, in reliance on obiter dicta of some members of the House of Lords in R v. Lambert [2001] UKHL 37, [2001] 3 WLR 285, followed by this Court in R v. Carass [2001] EWCA Crim 2845, [2002] 1 WLR 1214, that, as a principle of general application, such a provision, in order to make it Convention compliant, must be read down so to impose an "evidential", not a legal, burden upon a defendant. Thus, she submitted, it is sufficient for a defendant to raise a reasonable doubt on any of the issues raised by the provision to discharge the burden of proof, and thereby to cast on the prosecution the burden, to the criminal standard, of disproving it. In my view, and for the reasons given by the Court of Appeal in R v. Daniel [2003] 1 Cr App R 99, at 106, paras. 23 – 35, that is a difficult proposition whatever the statutory context, at any rate as to any factual issue going to a value judgment to be made by the court as to the reasonableness of the accused’s conduct. Moreover, to impose on an accused a legal burden of proof on a balance of probabilities on matters as those in section 5(3) which are peculiarly within the knowledge of a defendant, may or may not be incompatible with Article 6; see R v. DPP ex p. Kebilene [2000] 2 AC 327, HL, see per Lord Hope at 377G-380D.

However, in this statutory context, whatever the nature of the burden cast on the defence, it is, in any event, hard to find much of a role for any of the section 5(3) defences, directed, as they are, to an objective assessment by the court of the reasonableness of the accused’s conduct. That is because the essentials of the basic section 5 offence require the court to be satisfied as to the accused’s subjective state of mind, namely that he intended that the representation should be, or was aware that it might be, threatening, abusive or insulting. See e.g. DPP v. Clarke & Ors., 30th July 1991, DC, The Times 18^th September 1991, per Nolan LJ. If the section 5(3) burden on the defence is to be "read down" to an evidential burden so as to make it Convention compliant, with the result of casting upon the prosecution the burden of disproving it, it would be harder to find any sensible role for section 5(3). A glimpse of this is to be found in the following words of Hallett J, giving the leading judgment of this Court in Percy v. DPP [2001] EWHC Admin 1125, which concerned a conviction under section 5 of the 1986 Act for publicly defacing and showing contempt for the USA flag at an American airbase:

Add now the fifth element that the prosecution must prove on this religiously aggravated charge, that the appellant, in displaying the poster within the hearing or sight of a person to whom it was likely to cause harassment, harm or distress, was motivated by hostility towards a religious group, and it is even harder to see much of a role for section 5(3) once the prosecution has proved its case under section 5(1) and 6 (4).

It is well established that the restrictions in Article 10.2 are to be narrowly construed. In Redmond-Bate v. DPP [2000] HRLR 249, Div. Ct, which concerned a breach of the peace, Sedley LJ, developing a train of thought of the European Court of Human Rights in Handyside v. UK (1976) 1 EHRR 737, at para. 49, said, at para. 20:

Transposed to the nature of the offence with which this appeal is concerned, which is not far from conduct likely to cause a breach of the peace, the question is whether conduct the subject matter of a prosecution under section 5, in its basic or aggravated form, is unreasonable taking into account Article 10.2, in its provision of permissible restrictions necessary in a democratic society for protection of the rights of others and/or for the prevention or disorder or crime.

Miss Miskin made three main submissions. First, the District Judge wrongly found the conduct of the appellant to fall within the aggravated form of section 5 of the 1986 Act. Second, in considering whether it did so, the District Judge did not give proper weight to the right of free expression enshrined in Article 10.1 and/or too readily gave weight to certain of the factors in Article 10.2 restrictive of that right. However, she did not persist with one of the appellant’s grounds of appeal that, if the District Judge was right in finding that the conduct was caught by section 5 in its aggravated form, that provision is incompatible with the protection provided to the appellant by Article 10. Third, the District Judge, in considering and applying to the facts the reverse burden of proof provided for in section 5(3), wrongly applied a legal burden on the balance of probabilities instead of an evidential burden, a submission, however, that Miss Miskin did not fully develop before us.

The nub of Miss Miskin’s first submission was that the prosecution had not proved the offence in its basic or aggravated form; it had not shown 1) that the display of the poster was threatening, abusive or insulting or, 2) if it was any of those things, that it was within hearing or sight of anyone likely to be caused harassment or alarm or distress. As to the first of those two limbs of the offence, she argued that the poster could not, either on its words or in its symbols, be said to be an attack on Muslims as a religious group. To attack "Islam" was not to attack Muslims, but to attack or criticise the Muslim religion, which was permissible given that it had to vie with the other two great monotheistic religions as the only true way to God. And the reproduction of the photograph of one of the twin towers of the World Trade Centre in flames was, she submitted a matter of public interest - a valid comment to people who were neither politically nor religiously inclined. As to the second of the two limbs of the offence, Miss Miskin submitted that there was no evidence upon which the District Judge could properly find that the appellant’s display of the poster in the front window of his home in a small rural town or village in Shropshire was likely to cause anybody harassment, alarm or distress. In particular, there was no evidence of any Muslims in the vicinity whom it was likely to have offended in any of those ways if they had seen it. She added that the evidence of Mr. Davies that he had felt sick when he had seen it and had thought that it would cause offence, and that of the two police witnesses that it was in bad taste and inflammatory, were not to the point. Their evidence was at best inadmissible because it was of their opinions and that, in any event, the question is not whether the poster did cause distress but whether it was likely to do so.

Miss Miskin relied by way of comparison on a recent French case of Houellebecq, a decision of the Paris 17eme Chambre Correctionelle of 22^nd October 2002, in which the court acquitted the defendant on counts of inciting discrimination, hatred or violence towards a group of persons by reason of their adherence to the Islamic religion, contrary to paragraphs 2 and 3 of Article 33 of the Law of 29^th July 1881. She maintained that decision strongly supported the proposition that criticism of a religion, which, she claimed, is what the appellant’s poster amounted to, is not to be equated with an attack upon its followers. The subject of the prosecution in that case was an article in the Figaro Magazine, which, although it was an intemperate attack on the Koran and the tenets of the Islamic religion, was not regarded by the court as an attack on Muslims as a group, so as to incite discrimination, hatred or violence towards, or to insult, a group of persons by reason to their adherence to that Islam.

Miss Miskin’s second argument was that the District Judge had failed to give sufficient weight to the appellant’s right to freedom of expression. She took as her starting point one of Article 10’s common law fore-runners, Crompton J’s observation in Campbell v. Spottiswood (1863) 3 B & S 769, at 779, that "it is the right of all the Queen’s subjects to discuss public matters". However, she concentrated her submissions on the effect of section 12 of the Human Rights Act 1998 and Article 10 when considering whether the appellant’s conduct was caught by section 5 of the 1986 Act. She said that that the District Judge had bowed too readily to the restrictions on that right contained in Article 10.2 where there is a need to prevent of disorder or crime and/or to protect the rights of others.

In so submitting, she referred the Court to the observations of Sedley LJ in Redmond-Bate v. DPP, and suggested that the District Judge had erred in distinguishing this, the appellant’s case, on its facts from Percy v. DPP

Miss Miskin’s third argument was, as I have said, that the District Judge wrongly applied a legal burden of proof on a balance of probabilities instead of an evidential burden, for which, she submitted R v. Carass was an authority. She maintained that all the appellant had to do was to give an explanation that the District Judge could regard as reasonable. However, she also maintained that, whether the burden was an evidential one or a legal one on a balance of probabilities, the appellant had discharged it.

Mrs Janet Pitt-Lewis, on behalf of the respondent/prosecutor, submitted that the poster and its display gave a clear message to all who might see it: first, that the Islamic religion and its followers are not welcome in the United Kingdom and that they should be kept out and/or removed; and second, that the Islamic religion and its followers pose a danger to the British people. She said that, as a matter of plain common-sense, such a display was capable of being threatening, abusive or insulting, and was likely to cause harassment, alarm or distress to any right-thinking member of society concerned with the preservation of peace and tolerance, and for the avoidance of religious and racial tension, as well as to any follower of the Islamic religion.

Accordingly, she submitted that the District Judge rightly found on the evidence before him that this section 5 prosecution in its aggravated form was justified under Article 10.2, when read with Article 17, because it was prescribed by law, pursued a legitimate aim and was necessary in a democratic society for the prevention of crime and disorder and for the protection of the rights of others. As to the prohibition in Article 17 on abuse of the rights of others, Mrs Pitt-Lewis pointed to the right under Article 9 to Islamic people to follow their own religion and the right under Article 14 not to be discriminated against on account of race or -religion, citing by way of illustration J. Glimmerveen and J, Hagebeek v. The Netherlands (1979) 18 DR 187 ECM\HR; and Kuhren v. Germany (1988) 56 DR 205 ECMHR.

It followed, Mrs Pitt-Lewis submitted, that the public display of the poster, whatever, the precise manner of working of section 5(3), was unreasonable and was likely to stir up religious hatred, contrary to the principles of tolerance and mutual respect on which the Convention was founded, and that the District Judge was entitled to so find.

In my view, on the evidence of the content of the poster and of the circumstances of its display, the District Judge was entitled to find that the first limb of the aggravated section 5 offence was made out, namely that the appellant had displayed the poster intending it to be, or being at least aware that it might be, insulting. The words of the poster alone, and even more so when considered alongside the symbols of one of twin towers of the World Trade centre in flames and the crescent and star surrounded by a prohibition sign, were clearly racially directed and racially insulting. The poster was a public expression of attack on all Muslims in this country, urging all who might read it that followers of the Islamic religion here should be removed from it and warning that their presence here was a threat or a danger to the British people. In my view, it could not, on any reasonable basis be dismissed as merely an intemperate criticism or protest against the tenets of the Muslim religion, as distinct from an unpleasant and insulting attack on its followers generally. The French case of Houellebecq, on which Miss Miskin relied by way of an illustration for her submission, is clearly distinguishable on its facts, as are Redmond-Bate and Percy. Accordingly, in my view, the District Judge, on the evidence before him, was entitled to find the first limb of section 5 in its aggravated form proved, namely that the display of the poster was racially insulting to Muslims.

Similarly, in relation to the second limb of the offence that the prosecution had to prove, namely that the display of the poster was within the hearing or sight of a person likely to be caused harassment, alarm or distress, I agree with Mrs. Pitt-Lewis’s submission that, regardless of the evidence of Mr. Davies and the two police officers, the terms of the poster and the circumstances and location of its display were, as matter of plain common sense capable of causing harassment, alarm or distress to those passing by who might see it in the appellant’s window. As she said, that would be the reaction of any right-thinking member of society concerned with the preservation of peace and tolerance and the avoidance of religious and racial tension, as well as to any follower of the Islamic religion. In my view, on the evidence before him, the District Judge was entitled so to find. I should add, by way of emphasis – for it is plain from the wording section 5(1) – that the prosecution do not have to prove that the display of the poster in fact caused anyone harassment, alarm or distress.

I have combined Article 10 and the section 5(3) defence under one heading because often, and certainly in the circumstances of this case, the question whether a defendant’s conduct is objectively reasonable necessarily includes consideration of his right to freedom of expression under Article 10. Article 10, as I have said, consists of two parts, 10.1 proclaiming the right, and 10.2 permitting certain restrictions on it:

I have already mentioned that Miss Miskin did not persist with the ground of appeal that section 5, as amended to create the aggravated form of offence, was incompatible with the Convention, in particular, Article 10. Her argument was rather that, in construing section 5 in its aggravated form and in its application to the facts, courts should give proper weight to the individual’s right to freedom of expression in Article 10.1 when deciding where to draw the line between, on the one hand, racial or religious threats, abuse or insults intended as such or with an awareness that they might be such, and, on the other, the right to speak openly and frankly, and to express opinions or convey ideas on matters, including those that may be of public interest or concern. She added that courts should also bear in mind, when drawing the line, not only the words of Sedley LJ in Redmond-Bate, but that it is for the prosecution to prove its case.

As this Court said in Percy, a prosecution under section 5 does not per se engage Article 10. It depends on the facts and the drawing of an appropriate balance of competing interests under Article 10.1 and 10.2, bearing always in mind that the restrictions in Article 10.2 should be narrowly construed and convincingly established. As I have indicated earlier in this judgment, in the absence of a challenge to the compatibility of section 5 with the Convention, the mechanics of the Article’s operation on a prosecution under it seem to me to be confined to the objective defence of reasonableness in section 5(3). It cannot bear in any reasoned way on whether the prosecution have proved the two limbs under section 5(1), first, intentional or foreseen insulting conduct and, second, an objective likelihood of harassment, alarm or distress. Putting aside for the moment, questions as to the nature of the reverse burden of proof provided by section 5(3), the way in which Article 10 intrudes on the operation of a section 5 prosecution is whether the defendant’s conduct was objectively reasonable, having regard to all the circumstances, including importantly those for which the Article 10.2 itself provides. These will include consideration whether to mark as criminal the accused’s conduct in displaying the poster as a necessary restriction of his freedom of expression for the prevention of disorder or crime and/or for the protection of the rights of others. Hallett J, who gave the leading judgment in Percy, identified, at paragraph 11 of her judgment, two of a number of relevant factors in that case, which seem to me to be of general application in this context: namely: whether the accused’s conduct went beyond legitimate protest and whether the behaviour had not formed part of an open expression of opinion on a matter of public interest, but had become disproportionate and unreasonable.

I do not consider it necessary to give a view on the precise nature of the reverse burden or proof for which section 5(3) provides, or, depending what it is, whether it is proportionate in Convention terms in the light of Lord Hope’s observations in Kebilene, at 377G-380D, other than to indicate my predilection for a legal burden, at any rate as to any factual issue going to the court’s value judgment as to the reasonableness of the accused’s conduct. As the matter has not been argued before us, it would, in any event, be inappropriate to do so. There is also the difficulty, to which I have referred in paragraph 20, of finding much of a role for the section 5(3) defence, as one for an accused to "to prove" in whatever form, once a court has reached the stage in its thought process calling for consideration of the defence, namely that the two limbs of section 5(1) in their various alternative forms are proved by the prosecution on the criminal standard of proof.

Nevertheless, reasonableness or unreasonableness of an accused’s conduct in an objective sense goes to the root of the court’s decision whether or not raised as a section 5(3) defence. If the prosecution has proved, as it must to obtain a conviction, that an accused’s conduct was insulting and that he intended it to be, or was aware that it might be so, it would in most cases follow that his conduct was objectively unreasonable, especially where, in the aggravated form, the prosecution have proved that his conduct was "motivated (wholly or partly) by hostility towards members of a religious group based on their membership of that group". If the prosecution fails to prove either state of mind, then the question of reasonableness does not arise because the offence cannot be proved. Accordingly, whatever the nature of the burden of proof on the appellant in raising the defence, the District Judge, in my view, in the circumstances of his findings on the two limbs in section 5(1) could not sensibly have found that the appellant’s conduct was reasonable so as to enable him to secure an acquittal through the route of section 5(3). In other circumstances, as the District Judge observed in paragraph 26 of his judgment, it may be that, even where a court finds that conduct was intentionally insulting and had in fact caused alarm or distress, an accused’s conduct could still be reasonable. Such circumstances are difficult to envisage but, as always it depends on the facts.

In my view, the District Judge was entitled on the evidence before him, and again, regardless of any of the inadmissible opinion evidence of which Miss Miskin complained, to conclude, in the light of his findings on the first two limbs of section 5, that the offence had been made out – in effect that the appellant’s conduct was unreasonable, having regard to the clear legitimate aim, of which the section was itself a necessary vehicle, to protect the rights of others and/or to prevent crime and disorder. There are also, as Mrs. Pitt-Lewis submitted, considerations under Articles 9 and 17, weighing against permitting the appellant to rely on his right under Article 10.1 in the circumstances of this case.

Accordingly, I would answer "Yes" to all the District Judge’s questions and dismiss the appeal.

I also agree