Hammond v Department of Public Prosecutions

LORD JUSTICE MAY: We are very grateful to counsel on both sides and those supporting them for the careful and comprehensive submissions that have been made in this appeal. The appeal is by way of case stated by the justices for the Commissionaire of Dorset sitting at a Magistrates' Court at Wimbourne on 24th April 2002. They had before them an information preferred by the Chief Constable of the Dorset police against Harry John Hammond, the information having been preferred on 4th December 2001.

There were procedural complications relating to this appeal. Unfortunately, Mr Hammond died before the appeal could be brought on. The question arose whether, in those circumstances, it was legitimate and appropriate for the appeal to proceed. Maurice Kay J, as he then was, decided on paper that it should not, but Newman J was subsequently, upon oral argument, persuaded that it should. Mr Seed, on behalf of the Director of Public Prosecutions, originally questioned whether this was an appropriate decision but he has not pursued that question. In addition, an application was made to Newman J to amend the case stated; the amendments being entirely to the questions which this court was being invited to consider. Newman J gave a favourable indication to that application but did not, so we are told, actually make an order. The appellant, now represented by his executors, and the Director of Public Prosecutions came to an accommodation that the added questions were appropriate.

Unfortunately, the justices were not completely kept in the picture about this. The court has received a letter dated 12th January from the Deputy Justice's clerk indicating that the justices had not had the opportunity to consider whether their case should stand amended. The letter indicates that, of course, if they are ordered to do so they will comply with the order. In the circumstances where the proposed amendment is not to the substance of the case but to the questions which the court is asked to consider, this court was persuaded this morning to order that the amendments in subparagraphs (d) and (f) of paragraph 7 should be made, and was also persuaded that we should proceed to hear the appeal upon the amended case. In so far as this is an apparent discourtesy to the justices, we apologise, but I hope they will understand that economy and the proper administration of justice led to that result.

Mr Hammond was charged on this information with an offence under section 5 of the Public Order Act 1986. It was said that on 13th October 2001 he was in the square in Bournemouth when he displayed a writing or sign which was threatening, abusive or insulting within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, and that this was contrary to sections 5(1) and 5(6) of the 1986 Act.

The justices' case stated tells us they heard the information on 23rd and 24th April 2002 and that they found the following facts:

The facts of the case give rise to a generic problem which may be stated briefly thus. Freedom of expression is an axiomatic freedom in this country, now enshrined in the Human Rights Convention and the Human Rights Act 1998. Those who wish to exercise their freedom of expression, generally speaking, are not committing any offence if they do so within the law. As Lord Reid said in Brutus v Cozens [1973], a House of Lords decision reported at AC 854, 867, the quotation I am about to read coming from page 862 at letter (e):

The problem, of course, is that a person exercising their right of freedom of expression may, by doing so, provoke reaction in others. It may be said, as has been said on behalf of the appellant in this case, that the preservation of public order should be directed at stopping those who react rather than stopping the expression of views by a person who is seeking to do so. It is a very knotty problem for the law to sort out how to deal with that question. The solution that has been arrived at was summarised in the judgment of Schiemann LJ in the case of Bibby v Chief Constable of Essex [2000] reported at Justices of the Peace Reports, volume 164 at page 297, the quotation coming from page 302-F where Schiemann LJ said this:

The same essential considerations were expressed by Simon Brown LJ in Nicol v DPP [1995] 160 JP 155 where he said:

The offence with which Mr Hammond was charged was, as I have said, an offence under section 5 of the Public Order Act 1986. The relevant parts of that section are as follows:

It was accordingly necessary for the prosecution to prove that the sign which Mr Hammond was displaying was threatening, abusive or insulting and that it was within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. They also had to establish that Mr Hammond was aware that the sign might be threatening, abusive or insulting. Reading what the sign says and looking at the photograph of it, it is evident that it was not a threatening sign and the case has not been put on the basis that it was abusive. It is, however, put on the basis that this was an insulting sign and that more than one person was likely to be caused harassment, alarm or at least distress; the evidence of that being that several people, in fact, were. It was a defence for Mr Hammond to prove that, nevertheless, his conduct was reasonable.

The questions which the justices ask of this court, and the way in which the appeal has been put, call into play certain Articles of the Human Rights Convention. It is necessary to recall, and in my judgment it is an important element of this appeal, that section 3(1) of the Human Rights Act 1998 provides that 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 Convention rights. That, in the context of this case, in my judgment, means that when considering, for instance, the word "insulting" in section 5(1)(b) of the 1986 Act, the court has to construe it, in so far as its construction is capable of having any variation of meaning, so as to be compatible with the Convention right.

More importantly, perhaps, the court has to give effect to the section in a way which is compatible with Convention rights and I apprehend that it was for the justices to consider whether the facts proved before them did, indeed, mean that the sign was insulting but they had to do so with a view to their decision being compatible with Mr Hammond's Convention rights.

In the context of construction of the word "insulting", it is appropriate to recall that, again, in the case of Brutus v Cozens to which I have already referred, Lord Reid and indeed Lord Kilbrandon both said, in effect, that the word "insulting" is an ordinary, uncomplicated English word which does not require construction in the sense of substituting other forms of expression for its meaning in order to apply it. The decision in that case was held to be one of fact, which was a decision for the jury if they were called upon to decide whether a person had used insulting behaviour. It was, in my judgment in the present case, a decision of fact for the magistrates as to whether or not, in all the circumstances in which it was displayed, this sign was insulting.

The two Convention rights relevant to this case are to be found in Article 10 and perhaps to a lesser extent in Article 9. Article 10 of the Convention provides:

We are reminded that in Sunday Times v United Kingdom (No 2) [1992] 14 EHRR 123, the European Court of Human Rights said that:

The amendment to the case stated to which I referred earlier in my judgment introduced two questions in relation to Article 9 of the Human Rights Convention. Article 9 of the Human Rights Convention concerns freedom of thought, conscience and religion and it provides:

Accordingly there is a freedom of thought, conscience and religion which, again, has the possibility of being limited as prescribed by law to an extent which is necessary in a democratic society for the protection of public order. The Court of Human Rights made clear in a case called Kokkinakis v Greece [1993] 17 EHRR 397 that bearing witness in words and deeds is bound up the existence of religious convictions. Accordingly the Article 9 freedom to manifest one's religion is not only exercisable in the community of others, in public and within the circle of whose faith one shares, but can also be exercised alone and in private. Furthermore, it includes, in principle, the right to try to convince one's neighbour, for example through teaching.

As I have said, the original case stated made no reference to Article 9 and as Mr Seed has pointed out, the case stated has little, if any, material of an evidential or fact-finding kind which bears upon the question of whether a right under Article 9 was infringed. Mr Tomlinson has pointed out that there is material to indicate that Mr Hammond was preaching and, accordingly, he submits that Article 9 is engaged. He accepts, however, and I think, that the considerations relevant to Article 9 in the context of the present case really are much the same as the considerations relating to Article 10. Article 9 puts the case in a slightly different context but, in my judgment, does not really add anything to the matters which this court has to consider.

The justices set out in the case the contentions on behalf of the appellant and on behalf of the respondent which I do not propose to read because those contentions essentially repeat themselves in the submissions made to this court. The justices expressed their opinion in paragraph 6 of their case in the following terms:

The questions in the amended case which the justices have asked, for the opinion of this court, are expressed in these terms:

It seems to me that the respects in which it is or may have been appropriate to bring these considerations into play are essentially twofold. It is, at one level, vital to ensure that if, in so far as Mr Hammond's freedom of expression was to be restricted, it was only to be restricted in a way which was compatible with Article 10. That, in my judgment, was capable of affecting the justices' consideration and being brought into play in two ways. The first I have already alluded to. In determining whether or not the sign in question was to be found to be insulting within the terms of the section of the 1986 Act, it seems to me that it should have been appropriate to have brought considerations relevant to Article 10 into play. "Insulting" is an ordinary English word but when one applies the facts of individual circumstances to the question of whether a sign was insulting there may, of course, be a variety of answers depending on the individual circumstances of the case. In determining whether a particular set of facts and circumstances should give rise to a finding that a sign of this kind was insulting, it seems to me that it would be appropriate to have Article 10 and its terms very much in mind.

Secondly, the statute itself requires that the person charged would have a defence if he were to prove that his conduct was reasonable and I understand Mr Tomlinson to accept that although an analysis of the application of Articles 9 and 10 of the Convention could give rise to what I think he would prefer -- that is to say a structured three-stage approach -- nevertheless, in practice the courts have not followed such an approach but have treated Convention considerations as arising when the reasonableness defence under section 5(3)(c) is considered. Mr Tomlinson is, I understand, content that the question can properly be dealt with when the reasonableness defence is being considered. He submits that a person's conduct will be reasonable if he is exercising Convention rights in circumstances in which an interference with that exercise would not be justified under Articles 9(2) or 10(2).

In that context, our attention has been drawn to a passage in the judgment of Auld LJ in the case of Norwood v DPP [2003] EWCH Admin 1564, a decision of 3rd July 2003. At paragraph 37 of his judgment Auld LJ, in considering Article 10 and the defence under section 5(3) of the statute, said this:

The way in which the justices expressed their conclusions -- I have read the relevant passage in paragraph 6 earlier in this judgment -- seems to me to indicate that they did precisely that. The first two subparagraphs of their findings in paragraph 6 address the question of whether the sign was in fact insulting and whether it caused distress to persons who were present. The second paragraph deals with the question of whether Mr Hammond was aware that the words on the sign were insulting and the subsequent paragraphs which do address the questions required by Article 10 of the Convention. I think, in substance, those required by Article 9 of the Convention are expressed as I read them as antecedent to a conclusion in subparagraph (2) that, in the circumstances, Mr Hammond's conduct was not reasonable.

The essential grounds of appeal, and I hope I do not diminish them by summarising them in this way, are firstly, that the justices were wrong and misdirected themselves in finding that the words on the sign were insulting and secondly, that a proper appreciation of Articles 9 and 10 of the Convention should have led to the conclusion that the appellant should have been acquitted of this offence. The precise intellectual route by means of which that, it is submitted, should be achieved can, in my judgment, be addressed by reference to the question of reasonableness.

The submission that Mr Tomlinson advances is that the magistrates misdirected themselves as to the meaning of the word "insulting". They appear to have concluded that the words were insulting on the basis of Mr Hammond's admission and the fact that people were distressed and annoyed. It is submitted that no reasonable tribunal of fact could conclude that the words on the sign went beyond the legitimate expression and that they were something more than an affront or disrespectful is not sustained. There was no element of stereotyping, no element of gratuitous or gross abuse. The words, it is submitted, were not insulting within the meaning of section 5 and the magistrates are wrong to so conclude. It is further submitted that Mr Hammond's conduct was reasonable under section 5(3)(c) even without taking Convention rights into account and the following points are relied on. Firstly, even if, contrary to the submission already made, the sign was insulting, the insults were not gratuitous but formed part of Mr Hammond's sincere position of religion and morality; secondly, he was preaching in a public place with a view to converting others; thirdly, he was not using threatening language or inciting violence. The submission is that the reasonableness defence should be established without the need to go on to consider Convention rights.

However, if Convention rights are, as it is submitted they should be, to be considered, the respondent prosecutor had to show that the interference with Mr Hammond's freedom of expression was prescribed by law. It was accepted that they were. They had to show that it was for a legitimate aim, and it is not challenged that the magistrates found that the restriction had a legitimate aim of preventing disorder. The third and most important requirement, it is submitted, imports the notion of proportionality; that is to say that the restriction was necessary in a democratic society. In that context, the court has to consider three matters: whether the interference complained of corresponded with a pressing social need, whether it was proportionate to the legitimate aim pursued, and whether the reasons given to justify the interference were relevant and sufficient.

Mr Tomlinson pointed out that the magistrates held that the requirement was satisfied and that they gave four reasons. Their four reasons were: that the words on the sign were directed specifically towards the homosexual and lesbian communities, implying that they were immoral; secondly, that there was a need to show tolerance towards all sections of society; thirdly, that the sign was displayed in the town centre on a Saturday afternoon provoking hostility from members of the public; and fourthly, Mr Hammond's behaviour went beyond legitimate protest and was provoking violence and disorder and it interfered with the rights of others.

It is submitted that these reasons were inadequate. The first two are true but are irrelevant. Article 10 applies whether or not a speech is shocking, offensive or disturbing. In relation to the third point, that is to say the point that the sign was displayed in the town centre on a Saturday afternoon provoking hostility from members of the public, it is true that the sign was displayed but it is submitted that that, in itself, cannot be sufficient to justify interference with Mr Hammond's conventional rights. Many strongly held beliefs are likely to provoke some hostility from some people. That does not justify interference with the public in question. If that were to be the case then there would be a hecklers veto on the public streets all the time and that would be unacceptable under Article 10 and, indeed, under the common law.

As to the fourth of the points, that Mr Hammond's behaviour went beyond legitimate process, it is submitted he was the victim of assault rather than the perpetrator and in that case he was entitled to be protected and not arrested. Reference is made to Mr Hammond's sincerity and intention to preach rather than to cause offence and it is suggested that this distinguishes it from decisions such as Norwood where the appellant's conduct was intentionally insulting. The fact that a sign formed part of sincere religious expression means it is necessary to find compelling grounds for interfering with it. Such grounds, it is submitted, were not present in the present case.

In my judgment, as I have indicated, the questions which the justices had to consider which are critical to this appeal were, first, whether the words on the sign were, in the context and in all the circumstances, insulting, and secondly, whether Mr Hammond had established that his conduct was reasonable with particular reference to all the considerations to which I have referred, deriving from Article 10 of the European Convention of Human Rights. I firstly consider that the justices clearly demonstrate by their opinion and the way in which it is expressed, which I have quoted, that they addressed these questions and, accordingly, asked themselves the right questions in relation to the section and, indeed, in relation to the Convention.

They found as a matter of fact that the words displayed on the sign were insulting. Mr Tomlinson accepts that he has to persuade us that that finding of fact was outside the bounds of what magistrates properly directing themselves were able to find or, indeed, in Wednesbury language, that it was a perverse finding of fact. I have not found this question easy because it is certainly correct that the words on the sign are short and, so far as they go, are not expressed in intemperate language. I have considered very carefully whether this court ought to conclude, in effect, that the words on the sign were incapable of being held, as a matter of fact, to be insulting but I come to the clear conclusion that it was open to these magistrates to reach the conclusion that they did, not least because the words on the sign appear to relate homosexuality and lesbianism to immorality. The justices themselves take this into consideration when they say that the words on the appellant's sign were directed specifically towards the homosexual and lesbian community, implying that they were immoral. Accordingly, not without hesitation, I have reached the conclusion that it was open to the justices to reach the conclusion that they did as to the fact that these words on the sign were, in fact, insulting.

I have also considered carefully whether in the light of Article 10, in particular, but also taking account of Article 9 of the Convention, the justices should have concluded that Mr Hammond had established that his conduct was reasonable. He was, after all, according to his understanding, exercising his right of freedom of expression of views which may or may not have been acceptable to those who were passing by but, nevertheless, one has to bear in mind the cardinal importance of freedom of expression in a democratic society such as ours. Nevertheless, I have concluded that the justices, in their reasons, have not only considered the questions which they were obliged to consider, not only in relation to the statute but also in relation to the Convention, and have reached a conclusion that it was open to them to reach, for the reasons they gave, that the appellant's conduct was not reasonable.

Powerful though Mr Tomlinson's submissions are and, if I may respectfully say so, how well structured they are, I am not in the end persuaded that this was a decision that was not open to the justices. They were, in my judgment, entitled to conclude, on the facts which they found, that an offence under section 5 of the Public Order Act 1986 had been established. For these reasons I would dismiss this appeal.

MR JUSTICE HARRISON: I agree for the reasons given by my Lord.

MR SEED: My Lord, as regards costs.

LORD JUSTICE MAY: Yes?

MR SEED: I do not understand the funding arrangements of the appellant but costs would normally follow and the prosecution would seek their costs of opposing this appeal.

MR TOMLINSON: My learned friend is entirely right. Costs normally would follow. My Lord, the only matter I assume the court would take into account is that this has been brought as a matter of principle, as your Lordships will apprehend, by the executors of Mr Hammond. He held this conviction towards the end of his life. He wished to clear his name. It may be in those circumstances that the court would feel it appropriate to make no order for costs.

LORD JUSTICE MAY: Mr Tomlinson, without in any way impugning the sincerity with which this appeal was brought, we think the appellant should pay the respondent's costs.

MR TOMLINSON: My Lord, there is a question of general public importance. I wonder if your Lordship would give me the indulgence of applying back to the court? Having considered your Lordships' judgment, there is, I think, an appropriate question --

LORD JUSTICE MAY: By all means. If you want to make an application you can do so. I would suggest that if you do reach that conclusion it might appropriately be done in writing.

MR TOMLINSON: I will certainly make the application in writing, bearing in mind the lateness of the hour.

LORD JUSTICE MAY: If you want to do it, apply in writing. Give Mr Seed and those instructing him a copy of your application. Thank you very much.