Deborah Hicks v Director of Public Prosecutions

On 19 January 2022, District Judge Wattam (“the judge”), sitting at Cheltenham Magistrates’ Court, convicted Debbie Hicks of an offence of using threatening or abusive words or behaviour within sight or hearing of a person likely to be caused harassment, alarm or distress, contrary to s. 5 of the Public Order Act 1986 (“the 1986 Act”).

Ms Hicks invited the judge to pose three questions: first, whether he had erred in finding that the evidence established to the requisite standard that Ms Hicks’ words and behaviour were “threatening, abusive or disorderly” within the meaning of section 5 of the 1986 Act, and that she intended them to be such, or was aware of a risk that they would be perceived as such; second, whether he was correct in rejecting Ms Hicks’ defence of reasonable excuse under s. 5(3) of the 1986 Act; third, whether he was correct to find that convicting Ms Hicks was a necessary and proportionate interference with her rights under Article 10 of the European Convention on Human Rights (“the ECHR”).

The judge, while not accepting that these questions necessarily raised points of law, nonetheless invited this court to address them.

The charge arose from an incident on 28 December 2020, during one of the lockdowns imposed to contain the transmission of Covid-19.

Ms Hicks was concerned about reports in the mainstream media about the effect of Covid-19 on hospitals. She doubted that hospitals were really overflowing with patients. She therefore decided to go to the Gloucester Royal Hospital (“the Hospital”) to witness what was happening there, video it on her mobile phone and publicise it on Facebook.

Her first visit was on the day before the incident which gave rise to this charge, 27 December 2020, when she took video of the inside of the hospital and streamed it on or uploaded it to Facebook. She wanted to do so again, from different parts of the hospital, to demonstrate that the hospital was not busy. She attended on the afternoon of 28 December 2020.

Ms Hicks was in the stairwell of the main block of the Hospital, on the fifth floor, when she came across a small group of health care professionals who worked there. This group included Katie Williams and Sophie Brown. Ms Hicks interacted with Ms Williams and Ms Brown for a short period (no more than one minute, on the judge’s finding), after which Ms Williams went to the site office to report that Ms Hicks was present. At that point, Ms Hicks left voluntarily.

The case stated was originally prepared on 22 April 2022. On 10 October 2022, Sir Ross Cranston, sitting as a judge of this Court, noted that the first question related to the evidential sufficiency of the judge’s finding that the appellant’s behaviour was “threatening, abusive or disorderly”. The judge had set out some of the evidence in the case stated, but Sir Ross Cranston considered that the court would need a fuller account. This would require the parties to prepare an agreed version of the evidence to assist the judge in his task. The case stated was accordingly returned to the judge with a direction that the parties prepare an agreed summary of the evidence.

The agreed summary was duly prepared. Rather than substantively amend the body of the case stated, the judge included one additional paragraph to the effect that the parties had drafted an agreed summary of the evidence, which was appended to the new version of the case stated, dated 28 November 2022. The agreed summary may therefore be treated as forming part of the case stated.

Ms Williams’ evidence was that the conversation with Ms Hicks lasted for about 30 seconds. Ms Hicks was “hostile, quizzical and offensive”, said that she paid their wages through taxes and could film if she wanted. Ms Hicks was “loud and sharp in tone, and it was not a pleasant tone”. Ms Williams said: “the hospital is not the correct place to express those views” and “everyone is entitled to an opinion, but to film a closed department is a breach of confidentiality, so I knew I needed to go and seek help. I didn’t know if people were outside waiting to attack us.” Ms Hicks did not, however, say anything personal to her, touch her or threaten her. Ms Williams said: “coming into contact with someone who says they have the right to film, it was aggressive, so I took myself out of the situation”, and “that’s what was distressing, that it took my time away from people who needed it”.

Ms Brown’s evidence was that Ms Hicks was “abrupt”, “belittling”, “not necessarily aggressive or swearing, just sort of inflammatory. She was trying to walk away from us and thought she was better than us really”; she “started asking a lot of questions about my opinions and hospital and the lockdown’; she did not shout or swear; “she said Covid was a hoax and a shambles, which was aggressive and accusative”. Ms Hicks held the phone an arm’s length from Ms Brown’s face, pointed at her face, but she accepted that, given the width of the stairwell, it would not have been possible for Ms Hicks to stand more than a metre and a half away. Ms Brown said: “it was more the disrespect, the violation of my personal space”; “the main thing was that I had seen the video and seen how popular it was and that there were lots of comments. After having the camera in my face, I thought that I might be seen by thousands of people who might be abusive, which was intimidating”; and she confirmed that her distress was caused “partly by the possible repercussions of the video” and partly due to DH’s “tone”. Ms Hicks did not touch anyone in the group, and did not make any threats or personal comments.

Ms Hicks gave evidence that she was a long-standing political campaigner and had formed the view that the Covid-19 pandemic had led to inappropriate restrictions of civil liberties. When she encountered the group on the stairwell, she tried to avoid their attention. When asked what she was doing, she had answered: “Do you not feel the public have a right to know what’s going on? We pay taxes for the NHS.” She did not want to have this conversation, but she had been unable to get past the group of workers on the stairwell. She had no intention to distress anyone.

The parts of the case stated where the judge recorded his findings of fact were as follows:

“25… I found that both Ms Williams and Ms Brown gave evidence that was cogent, credible and without exaggeration. Their accounts stood up well to cross examination.

26.

Whilst it is clear that Ms Hicks did not, at first, seek confrontation with these two women on that stairwell, once enquiry was made as to whether she required ‘any help’ a confrontation did develop. And once engaged with them I have no doubt that both Ms Williams and Ms Brown did feel threatened and abused by Ms Hicks’ words and behaviour on the stairwell of these hospital premises that afternoon. That she was aggressive and dismissive of them and attempted to conduct a non-consensual interview with them whilst holding a mobile camera phone towards their faces at arms-length and apparently filming them. Both women were visibly distressed when giving evidence about the contemporaneous impact of Ms Hicks’ behaviour upon them. Both told me that they were intimidated by Ms Hicks and were concerned that any film that she was taking with her camera phone was being streamed online and that they might be identified from that footage later.

27.

Both were aware of and had seen the video footage livestreamed by Ms Hicks the previous day. Both told me that in view of their own recent experiences they found that footage and what was said by Ms Hicks in her running commentary distressing. Both told me that they were aware – contemporaneously – of online comments made by others (so called antivaxxers and the like) which demonstrated the strength of feeling about the issue Ms Hicks sought to highlight.

28.

Both women also expressed concern for the confidentiality of patients in that place - at the hospital. Ms Williams was so alarmed that she sought help immediately, reporting what had happened to the site office – ‘raising the alarm’ as she put it - so that Ms Hicks might be removed from the hospital. Both witnesses described this all to me on oath and, taken together my finding of fact is that Ms Hicks’ behaviour clearly did amount to harassment and was threatening and abusive to both Ms Brown and Ms Williams.

29.

I am also sure as to Ms Hicks’ subjective state of mind, namely that she was bound to be aware in all of these circumstances, that her behaviour might be threatening and/or abusive to others. Ms Hicks’ own case is that her attendance at the hospital was ‘undercover’. Clearly she understood that she had no business being at the hospital; that she should not be there. In fact her livestream video commentary demonstrates Ms Hicks making efforts not to be noticed at all. I am also struck by the fact that, despite having the ability to do so, Ms Hicks decided, on reflection, not to live stream the key encounter with the two witnesses on the stairwell. She told me that she went on to delete the video footage that she had taken of the women on the stairwell. This suggests to me that she was well aware of the potential deleterious impact of that, had she done it. Ms Brown and Ms Williams were not to know that she was not livestreaming their encounter at the time, of course. Indeed they both told me that they thought that Ms Hicks was doing this. Both women were demonstrably alarmed by Ms Hicks behaviour toward them at their place of work.

30.

At first sight, therefore the prosecution case is made out.”

Later, the judge summarised his findings of fact in this way:

“47.

At the trial I made the following findings of fact: when approached by Ms Williams a health care professional at the hospital (who was concerned about Ms Hicks’ behaviour and recognised her voice from the video livestream the day before) Ms Hicks was confrontational, derogatory, and aggressive in her tone towards Ms Williams and her colleague Ms Brown.

48.

Having initially lied about her purpose for visiting the hospital she told both Ms Williams and Ms Brown that: she could film in the hospital and purported to do so; that she paid taxes and therefore paid the wages of the staff; implied that the Covid pandemic was a hoax; and made derogatory comments about NHS provision in the pandemic.”

The judge considered the decision of this Court in Abdul v DPP [2011] EWHC 247, [2011] HRLR 16. He took the view that the question was whether the defendant’s conduct was objectively reasonable, having regard to all the circumstances, including importantly those for which Article 10 itself provides. He noted that Ms Hicks’ own description of her conduct was “guerrilla journalism” and asked five questions derived from the judgment of the Supreme Court in DPP v Ziegler [2021] UKSC 23, [2022] AC 408.

As to Article 10 ECHR, the first question was whether Ms Hicks’ behaviour was an exercise of her Article 10 rights. The answer was “Yes”. Second, he asked whether there was an interference by a public authority with that right. Again, the answer was that both her arrest and her subsequent prosecution constituted such an interference. The third question was whether the interference was prescribed by law, to which the answer was again in the affirmative: the interference was prescribed by the 1986 Act. Fourth, the judge asked whether the interference pursues a legitimate aim. Again, the answer was that it did: the preservation of public order. Fifth, he asked whether the interference was necessary and proportionate.

The judge concluded that “caselaw tells us that Convention rights are capable of being considered within the express words of statute and do not superimpose a separate legal test of proportionality by which a decision to prosecute itself might be challenged”. Accordingly, the prosecution did not have to establish, separately from Ms Hicks’ guilt of the offence with which she had been charged, the proportionality of the decision to prosecute.

The judge found that there were other reasonable ways for Ms Hicks to convey and express her opinions about the pandemic and the authorities’ response to it. Her conduct on this occasion was not reasonable and Ms Williams and Ms Brown deserved “not to be molested (in the ordinary sense of that word) whilst at work, and should be protected by the law”. Thus, the prosecution had established that the restriction of Ms Hicks’ Article 10 rights was proportionate and Ms Hicks had not made out the defence under s. 5(3) of the 1986 Act.

Section 5 of the 1986 Act provides as follows:

“(1)

A person is guilty of an offence if he—

(a)

uses threatening or abusive words or behaviour, or disorderly behaviour, or

(b)

displays any writing, sign or other visible representation which is threatening or abusive,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

…

(3)

It is a defence for the accused to prove—

…

(c)

that his conduct was reasonable.”

In its original form, the offence could be committed by the use of “threatening, abusive or insulting” words or behaviour, but the word “insulting” was removed by the Crime and Courts Act 2013.

Section 6(4) of the 1986 Act provides:

“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 or abusive, or is aware that it may be threatening or abusive or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.”

In Percy v DPP [2001] EWHC 1125 (Admin), Hallett J (with whom Kennedy LJ agreed) said this at [25]:

“….the provisions of section 5 and section 6 of the Public Order Act, as enacted and applied by the courts of this country, contain the necessary balance between the right of freedom of expression and the right of others not to be insulted and distressed. The right to freedom of expression was well established in the United Kingdom before the incorporation of the Convention. Peaceful protest was not outlawed by section 5 of the Public Order Act. Behaviour which is an affront to other people, or is disrespectful or contemptuous of them, is not prohibited: see Brutus v Cozens [1973] AC 854. A peaceful protest will only come within the terms of section 5 and constitute an offence where the conduct goes beyond legitimate protest and moves into the realms of threatening, abusive or insulting behaviour, which is calculated to insult either intentionally or recklessly, and which is unreasonable.”

In Abdul v DPP, this Court had to consider a case about protestors who had shouted that British soldiers were “murderers”, “rapists” and “baby killers” (among other things) at a parade to mark the home-coming of a regiment from Afghanistan. They had been charged with offences under s. 5 of the 1986 Act, prior to its amendment in 2013. At [49], Gross LJ (with whom Davis J agreed) set out eight propositions explaining the proper approach to s. 5 of the 1986 Act in cases where Article 10 ECHR was engaged:

“(i)

The starting point is the importance of the right to freedom of expression.

(ii)

In this regard, it must be recognised that legitimate protest can be offensive at least to some—and on occasions must be, if it is to have impact. Moreover, the right to freedom of expression would be unacceptably devalued if it did no more than protect those holding popular, mainstream views; it must plainly extend beyond that so that minority views can be freely expressed, even if distasteful.

(iii)

The justification for interference with the right to freedom of expression must be convincingly established. Accordingly, while art.10 does not confer an unqualified right to freedom of expression, the restrictions contained in art.10(2) are to be narrowly construed.

(iv)

There is not and cannot be any universal test for resolving when speech goes beyond legitimate protest, so attracting the sanction of the criminal law. The justification for invoking the criminal law is the threat to public order. Inevitably, the context of the particular occasion will be of the first importance.

(v)

The relevance of the threat to public order should not be taken as meaning that the risk of violence by those reacting to the protest is, without more, determinative; some times it may be that protesters are to be protected. That said, in striking the right balance when determining whether speech is “threatening, abusive or insulting”, the focus on minority rights should not result in overlooking the rights of the majority.

(vi)

Plainly, if there is no prima facie case that speech was “threatening, abusive or insulting” or that the other elements of the s.5 offence can be made good, then no question of prosecution will arise. However, even if there is otherwise a prima facie case for contending that an offence has been committed under s.5, it is still for the Crown to establish that prosecution is a proportionate response, necessary for the preservation of public order.

(vii)

If the line between legitimate freedom of expression and a threat to public order has indeed been crossed, freedom of speech will not have been impaired by ‘ruling… out’ threatening, abusive or insulting speech: per Lord Reid, in Brutus v Cozens [1973] A.C. 854, at p.862.

(viii)

The legislature has entrusted the decision in a case such as the present to Magistrates or a District Judge. The test for this Court on an appeal of this nature is whether the decision to which the District Judge has come was open to her or not. This Court should not interfere unless, on well-known grounds, the Appellants can establish that the decision to which the District Judge has come is one she could not properly have reached.”

On the facts of the case, Gross LJ noted that the conviction was “rooted in the threat to public order, described in the Case”: [50]. At [51] the Court distinguished Dehal v CPS [2005] EWHC 2154 (Admin) because in that case the key consideration (other than the paucity of reasons) was the absence of a threat to public order.

In R (Campaign Against Antisemitism) v DPP [2019] EWHC 9 (Admin), this Court dismissed a claim for judicial review of a decision by the DPP to take over and discontinue a private prosecution under s. 5 of the 1986 Act of a demonstrator who had used offensive language at a pro-Palestinian protest. At [7], Hickinbottom LJ (with whom Nicol J agreed) noted, referring to Lord Reid’s speech in Brutus v Cozens, that the proper meaning of an ordinary word, such as “abusive”, was a question of fact, but s. 5 nonetheless had to be read in the context of Article 10 ECHR. At [9], he noted that the effect of the amendment to s. 5(1) in 2013 was to shift the balance in favour of freedom of expression “by removing the word ‘insulting’, so that that to be criminal, the words or behaviour now have to be ‘threatening or abusive’”.

At [50], Hickinbottom LJ said this:

“I fully understand the distress that Mr Ali’s words may have caused to some of those who were present as the counter-demonstrators or simply as passers-by, and not just those who were Jewish or who were sympathetic or supportive of the state of Israel. His words may have been intemperate and offensive. But it is not the task of this court to judge whether they were or may have been distressing or offensive. As the authorities stress, article 10 does not permit the proscription or other restriction of words and behaviour simply because they distress some people, or because they are provocative, distasteful, insulting or offensive.”

At [68(iv)], he distinguished Abdul because in that case there was a “very real threat to public order”.

In Ziegler, the Supreme Court considered the correct approach to the offence of obstructing the highway contrary to s. 137 of the Highways Act 1980, to which there is a defence of lawful excuse. Lords Hamblen and Stephens (with whom Lady Arden in essence agreed) said at [70] that intentional action by protestors to disrupt by obstructing others enjoys the guarantees of Articles 10 and 11 ECHR but both the disruption and whether it is intentional are relevant factors in relation to an evaluation of proportionality. Intentional action even with an effect that is more than de minimis does not automatically lead to the conclusion that any interference with the protestors’ Article 10 and 11 rights is proportionate. Rather there must be an assessment of the facts in each individual case to determine whether the interference with Article 10 and 11 was “necessary in a democratic society”.

In In Re Abortion Service (Safe Access Zones) (NI) Bill [2022] UKSC 32, [2023] 2 WLR 33, Lord Reed (with whom the other members of the seven-judge Court agreed) held that questions of proportionality were often decided as a matter of general principle rather than on the facts of an individual case: [29]. When a defendant relied on Articles 9, 10 or 11 ECHR, the first question was whether those articles are engaged: [54]. If so, the court must then ask whether the offence is one where the ingredients themselves strike the proportionality balance so that if the ingredients are made out, and the defendant is convicted, there can have been no breach of his or her Convention rights. This will be the case with many commonly encountered criminal offences, such as offences of violence and offences concerning damage to property, which are likely to be defined in such a way as to make assessment of proportionality unnecessary: [55]. If proof of the elements of the offence does not itself ensure the proportionality of a conviction, the court must consider how to ensure compatibility with Convention rights: [56]. If the offence is statutory, s. 3 of the Human Rights Act 1998 may enable the court to construe the relevant provision compatibly with Convention rights, either by construing it in a way which means that a conviction will always be proportionate, or by interpreting it as allowing for an assessment of proportionality in individual cases: [57]. But the fact that there is a statutory defence of lawful or reasonable excuse does not mean that a proportionality assessment in respect of Convention rights is appropriate: [58].

The following principles applicable to the construction of s. 5 of the 1986 Act may be derived from an analysis of the statutory words and from the case law: