Director of Public Prosecutions, R (on the application of) v Manchester City Magistrates’ Court

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:

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:

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 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):

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):

As to further evidence about the words used, and about each of the Interested Parties’ conduct in using them, the Certificate continued with this within the same section entitled “the facts” (Certificate §§13-19):

In the same “facts” section, the Certificate continued (Certificate §§20-24):

As to the Judge’s ruling, the Approved Note had contained these four paragraphs (the numbering is mine for ease of later cross-reference):

Before turning to the issues, these key points warrant emphasis. (1) The issues raised in this judicial review claim are solely concerned with the Judge’s approach to the Reasonableness Defence. (2) Mr Little KC (who appears with Mr Boyd for the Prosecution) accepts that the Convention Rights of each of the Interested Parties were and are engaged. (3) Mr Little KC also accepts – on a fair reading of the Judge’s reasons – that the Judge found the s.4A(1) conduct element proven, solely on the basis that each Interested Party used “insulting words”. (4) On a fair reading of the Judge’s reasons, the Judge found the intent and consequence elements of s.4A(1) proven, on the basis of “alarm” (Certificate §12). (5) It was, and is, necessary to focus on what each Interested Party did individually. No case was put against them on a “common enterprise” basis with each other or with any third party or third parties. (6) When the Judge spoke at Approved Note §[4] of whether it was proportionate to “criminalise” the words, he was recognising the question whether a conviction (not arrest or prosecution) is a proportionate interference with Convention Rights. That is the question described in DPP v Ziegler [2021] UKSC 23 at §§57, 94; and in Attorney General’s Reference (No.1 of 2022) [2022] EWCA Crim 1259 [2023] 2 WLR 651 at §52.

This is the first part of issue (1). Mr Little KC described it as his principal argument in the case. He submits, in essence, as follows. The Judge made a material error of law about the burden of proof. This is seen at Approved Note §[4] (“not proportionate act to criminalise those words. I do not consider the case to be proven. It is for the prosecution to disprove beyond reasonable doubt – not proportionate for CPS to criminalise words”). It can be seen at Certificate §23 (“I considered that they [the prosecution] had not established that the interference with the defendants’ ECHR rights was proportionate and therefore the defence of reasonableness was made out”). The Judge correctly started with the Prosecution’s general criminal-standard burden (Approved Note §[1]). He also correctly stated the Interested Parties’ civil-standard burden as to the Reasonable Conduct Defence (Approved Note §[2]). But the Judge subsequently went wrong in law. The legal burden remains on the defence, to prove on the balance of probabilities that conviction is a disproportionate interference with Convention Rights. Primacy needs to be given to the clear legislative words in s.4A(3)(b) (“it is a defence for the accused to prove … that his conduct was reasonable”). No relevant authority places any burden on the prosecution. There is no justification for any reinterpretation pursuant to s.3 of the HRA. Even if the burden was rightly placed on the Prosecution, the Judge was wrong to apply the criminal standard. These errors of law – either or both of them – were material. They produced a fundamental change in the necessary factual enquiry. Any proper and fair assessment of the reasonableness of the Interested Parties’ conduct required the Interested Parties to address in their evidence matters such as: (a) whether they were aware that Sir Iain Duncan Smith had been assaulted by another protester that had joined their pursuit of him; (b) whether they were aware that others that were following him were shouting personal abuse that may have been perceived as threatening; and (c) whether they were aware that he was in the company of other people and the effect their conduct may conceivably have had upon them.

I cannot accept those submissions. In my judgment, there was no misdirection in law, either as to burden or standard of proof. But even if there was a misdirection, it was not a material misdirection. The outcome would inevitably have been the same.

The starting point is that the Reasonable Conduct Defence does place a legal burden of proof on the defence. That reflects Parliament’s clear words and purpose (s.4A(3)(b)). The Judge was right to recognise it: Approved Note §[2]. This general starting point is wider than the question of proportionality of a conviction as an interference with Convention Rights. In the first place, the defence is wider than human rights issues. As with defences of lawful or reasonable excuse, the defence may be “relied on in … circumstances that do not raise Convention issues”: In re Abortion Services (Safe Access Zones) [2022] UKSC 32 [2023] AC 505 at §58. In the second place, the issues under the Convention Rights are broader than the proportionality issue. The first questions are whether the rights are engaged (see Abortion Services at §54) and whether there is an interference with them. If the answer to either of these related questions is ‘no’, then no proportionality assessment is reached. Similarly, if the justification for interference is not ‘prescribed by law’ questions of proportionality do not arise.

I cannot accept the invitation of Mr Greenhall (who appeared with Ms Hammad for the Second Interested Party) to conclude that s.3 of the HRA requires s.4A(3) of the 1986 Act to be “read down” to impose an “evidential burden”, so that it is sufficient for a defendant to raise a reasonable doubt on any of the issues raised by s.4A(3), and the prosecution thereby has the burden to the criminal standard of disproof. This is not a new point: in the context of s.5(3), see Norwood v DPP [2002] EWHC 1564 (Admin) at §19. Mr Greenhall’s invitation, relying on Sheldrake v DPP [2004] UKHL 43 [2005] 1 AC 264 rested ultimately on the submission, which I cannot accept, that the Reasonable Conduct Defence by its nature involves questions on which the defence cannot be expected to adduce evidence.

There is an important distinction between (i) findings of fact and (ii) the question of proportionality: Abortion Services §§30, 66. This would be familiar to any extradition judge, who may need to make findings of fact and then ask whether extradition would be a proportionate interference with Article 8 (private and family life) rights. The same would apply to a county court judge in a housing possession case where proportionality may feature as part of a tenant’s defence.

It was only on the final evaluative question – whether, in light of any relevant findings of fact, the interference with the Convention Rights is justified as proportionate – that the Judge described the burden as being on the Prosecution. This was what the Judge was saying in the Approved Note at §[4] and the Certificate at §23. The Judge was not contradicting what he had said earlier (Approved Note §[2]). He did not say that it was for the Prosecution to establish that the conduct was unreasonable. He did not say that it was for the Prosecution to prove facts relevant to whether the Convention Rights were engaged, or whether they were interfered with, or the nature and seriousness of the interference, or even relevant facts as to whether the interference was proportionate. He described the burden on the Prosecution by reference, and only by reference, to the evaluative question of whether the Convention Rights interference was proportionate.

In my judgement, this is correct as a matter of principle. It is very well established that once the question of the proportionality of an interference with Convention rights arises, it is for “the state” to demonstrate that the interference is justified as proportionate. The case-law also repeatedly refers to proportionality needing to be “convincingly established” (§§22-24 below; Attorney General §55; Ziegler §97). When using the word “proof”, we should remember that this is the proportionality evaluative question, and not a finding of fact. In the context of a criminal prosecution it is the prosecutor who is the emanation of the state. We were shown no authority which places a burden on the ‘victim’ of an Article 10 interference to demonstrate that the interference is unjustified as disproportionate. I can see no error of law in the Judge’s approach. I am unpersuaded that there is any difference – certainly any practical difference – between being made “sure” of the proportionality of the interference on the one hand and it having been “convincingly established” on the other. As Mr Wainwright (who appeared with Ms Papamichael for the First Interested Party) pointed out, the Supreme Court – in a case in which a proportionality evaluation has been recognised as arising – has spoken of the criminal court needing to be “sure that the interference was proportionate”, and of “the criminal standard”: Ziegler at §§60 and 97.

It does not follow that the Prosecution has to prove facts relevant to the Reasonable Conduct Defence, including whether the Convention Rights are engaged and interfered with, the nature and extent of the interference, or other facts relevant to the proportionality evaluation. This point is well illustrated by the present case. There were clearly factual questions as to the words “Tory scum” and the nature and purpose of the Interested Parties’ actions in using those words. The Interested Parties did not raise those issues for the Prosecution to disprove. They adduced evidence and that evidence persuaded the Judge. The Judge recorded that evidence in the “facts” section (Certificate §§13-19) and made a clear and important finding that: “The use of Tory scum was to highlight the polices of IDS” (Approved Note §[4]). This was not a question of something that the Prosecution had failed to disprove. Mr Wainwright accepts that the effect of s.4A(3), compatibly with the HRA and the Convention Rights, does place on the defence the burden of establishing – to the civil standard – facts relevant to the reasonableness of the conduct, including facts relevant to the nature of the interference and facts relevant to the proportionality of that interference, at least to the extent that they are matters within a defendant’s knowledge rather than within the exclusive knowledge of the Prosecution. In the context of s.4A(3) with its express statutory design, I think that is correct.

But I do not think anything turns on any of this analysis. Even if the Judge should have put the burden on the Interested Parties to prove – to the civil standard – that the interference with the Interested Parties’ Convention Rights was unjustified as disproportionate, it is in my judgment plain that the outcome would inevitably have been the same. A number of points reinforce that conclusion. First, there is the Judge’s evidence-based conclusion as to the nature and purpose of the words used, remembering that they were found to be “insulting words” intended to cause, and causing, “alarm”. Secondly, there is the evidence which the Judge had. The Interested Parties gave evidence and were able to be cross-examined. The Judge had the video evidence. He was not denied any relevant evidence about the Interested Parties’ conduct and knowledge regarding: (a) the traffic cone incident (to which he referred in Certificate §9); (b) the conduct of others (to which he referred in Certificate §7); and (c) Sir Iain Duncan Smith being in the company of others (to which he referred in Certificate §16). The Judge was well aware of the evidence relating to the points emphasised by the Prosecution, about “the drumming and shouting being persistent and continuing after the incident with the traffic cone” (Certificate §21). Thirdly, there is the fact that the Judge specifically asked the Prosecution what other features of the case – beyond those – made the interference disproportionate, and was given none, including those points later relied on (Certificate §§21-22). Fourthly, there is Mr Wainwright’s description of a post-ruling exchange with the Judge, the accuracy of which has not been put in issue. The question was raised with the Judge as to where he had placed the burden on the question of proportionality and it was “agreed that this did not make any difference to the [Judge’s] findings”.

In my judgment, this analysis is consonant with – and supported by – the relevant authorities bearing on the issue. In Percy v Director of Public Prosecutions [2001] EWHC 1125 (Admin) the Divisional Court was concerned with a charge of using threatening, abusive or insulting words or behaviour likely to cause harassment alarm or distress contrary to s.5 of the 1986 Act. The Court overturned a conviction in the Thetford magistrates’ court, relating to the desecration of a US flag at RAF Feltwell. The conviction was overturned because the magistrates’ approach to the equivalent Reasonable Conduct Defence (s.5(3)(c)) had focused on one relevant factor (the avoidability of the conduct within a peaceful protest) to the exclusion of other relevant factors (see §§32-33). The judgment recorded that Ms Percy had both (a) accepted the Reasonable Conduct Defence burden being on the accused to establish on the balance of probabilities that her conduct was reasonable (§11) but also (b) submitted that it was for the prosecution to establish the necessity and proportionality of restricting the defendant’s freedom of expression (§19). The Court saw no contradiction in those two points. It spoke of the defendant having to “establish on the balance of probabilities that his or her conduct was reasonable” (§26) but at the “crucial stage of a balancing exercise under Article 10” the significance of a “presumption” in the defendant’s favour (§33), that her conduct was protected by Article 10 “unless and until it was established that a restriction on her freedom of expression was strictly necessary”, where “the justification for any interference with that right must be convincingly established” (§27). Percy reflects the distinction between a burden on the defence to establish the facts relied on for a Reasonable Conduct Defence, the need for the prosecution to demonstrate the proportionality of an interference once that evaluative question is reached, and the need for this to be convincingly established.

In Norwood the Divisional Court was concerned with a charge of displaying a sign which was threatening abusive or insulting within the sight of a person likely to be caused harassment alarm or distress, racially aggravated by hostility towards members of a racial group based on their membership of that group, contrary to s.5 of the 1986 Act read with s.31(1)(c) of the Crime and Disorder Act 1998. The Court upheld a conviction in the Oswestry magistrates’ court, relating to the display of a BNP poster in a Shropshire flat window. The magistrates had been entitled to reject the s.5(3)(c) Reasonable Conduct Defence. The Court said that it was not necessary to give a view in relation to the precise nature of the reverse burden of proof (§38) and left open the question of the nature of the burden of proof on the defendant (§39). But the Court recorded that it saw as “difficult”, and had a “predilection” against, the proposition that the prosecution owed a burden of proof “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”, on matters “peculiarly within the knowledge of a defendant” (§§19, 38). The Court in Norwood recorded that restrictions on Article 10 rights needed to be “convincingly established” (§37). Norwood assists for recognising the need for the state convincingly to establish the proportionality of the interference, and for recognising that the Reasonable Conduct Defence can properly nevertheless entail the defence owing a burden on relevant questions of fact (including, I would add, facts within the knowledge of the accused relevant to the questions arising under the Convention Rights).

In Hammond v DPP [2004] EWHC 69 (Admin) the Divisional Court was concerned with a charge of displaying a sign which was threatening abusive or insulting within the sight of a person likely to be caused harassment alarm or distress contrary to s.5 of the 1986 Act. The Court upheld a conviction in the Wimborne magistrates’ court relating to the display of a sign bearing the words “stop homosexuality” and “stop lesbianism” paraded in Bournemouth town centre. The magistrates had been entitled to reject the Reasonable Conduct Defence. The Court recorded that it was a “defence for Mr Hammond to prove” that his conduct was reasonable (§10). As in Percy, the Court identified two distinct points being made on behalf of the defendant. The first was to accept that the statute itself required the defendant to prove that their conduct was reasonable (§22). The second was the submission that “the respondent prosecutor had to show that the interference with Mr Hammond’s freedom of expression” was a restriction which was “necessary in a democratic society” (§27). Again, there was no perceived conflict. May LJ said the magistrates had to consider “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” (§31). That was a clear reference back to having recorded that it was for the respondent prosecutor to show that the restriction was necessary in a democratic society (§27). As to the standard of proof, the Court recorded (at §15) the need for justification to be “convincingly established”. Hammond reflects the burden on the defence to establish the facts relied on for a Reasonable Conduct Defence, the need for the prosecution to demonstrate the proportionality of an interference, and the need for this to be convincingly established.

As an end-note to this issue, I record that when the Prosecution made its application to the Judge to state a case, the burden and standard of proof points were not raised in the application as suggested errors of law. That was notwithstanding the contents of the Approved Note at §[4]. To this, I add the postscript at §53 below.

This is the second part of issue (1). It is a question which emerged by reference to three cases which I have already mentioned: Ziegler; Attorney General; and Abortion Services. In discussing proportionality, the cases use – interchangeably – the words “fact-sensitive” and “fact-specific”, and the words “enquiry” and “assessment”. I will speak of a “fact-sensitive” proportionality “assessment”.

In Ziegler the Supreme Court held that the Stratford magistrates had been entitled to acquit a protester of wilful obstruction of the highway, by virtue of the “without lawful authority or excuse” element of the offence (s.137 of the Highways Act 1980). In the application of the Convention Rights, that element involved a fact-sensitive proportionality assessment. In Attorney General the Court of Appeal held that violent or significant criminal damage raised no separate Article 10 proportionality issue for a fact-sensitive proportionality assessment under the “without lawful excuse” ingredient of the offence of criminal damage (s.1 of the Criminal Damage Act 1971). That was because a conviction in a case involving those features (violent action or significant criminal damage), together with the other elements of the offence, would necessarily be Article 10 compatible. In Abortion Services the Supreme Court held that the statutory criminalisation of protest within a safe access zone without a reasonable excuse defence was a general measure and restriction intrinsically compatible with Article 10 rights, capable of being applied compatibly with the Convention Rights, and therefore falling within the devolved competence of the Northern Ireland Assembly. Based on that line of cases, and in particular the discussion of Ziegler in the Attorney General and Abortion Services cases, Mr Little KC advanced a line of argument which sought to confine and contextualise the role which Convention Rights considerations play within the s.4A(3)(b) Reasonable Conduct Defence. The argument was advanced by reference to Article 10, but the same considerations would apply equally to Article 11. I must confess that I found the argument somewhat elusive.

Mr Little KC accepted and maintained that the Interested Parties’ Article 10 rights were and are engaged in the present case. He also accepted and maintained that, if a s.4A conviction would constitute a disproportionate interference with those Article 10 rights, then it would necessarily follow that the conduct would constitute reasonable conduct for the purposes of the s.4A(3)(b) Reasonable Conduct Defence. This mirrors the observation about “lawful excuse”, made by the Divisional Court in Ziegler: see Abortion Services at §24. Mr Little KC accepted that the application of the Reasonable Conduct Defence needed “properly to take into account”, and give “significant weight” to, the Convention Rights including Article 10(1) and 10(2). He put forward no alternative standard or principle for testing incompatibility of a conviction with Article 10 freedom of expression, other than asking and answering the evaluative proportionality question. He did not submit that the intrinsic design of s.4A – through the elements of the offence – secures the Article 10 compatibility of a conviction. He did not submit that those other statutory elements, together with some other identifiable feature of the present case, intrinsically secure the Article 10 compatibility of a conviction. Nor did he submit that Article 10 compatibility is secured by the criminal court asking itself the simple question whether a defendant’s conduct was reasonable.

Mr Little KC’s suggested analysis crystallised as follows. Primacy has to be given to the legislative design of s.4A and the words used by Parliament, which puts the focus on the reasonableness of the defendant’s conduct. That is a question of objective reasonableness in all the circumstances. There is no separate freestanding proportionality question or assessment. Still less is there any complicated, complex or detailed jurisprudential analysis. The application of the Reasonable Conduct Defence, in a case where Article 10 rights are engaged, does need to take proper account of Article 10(1) and (2) considerations. In a case where a conviction would be an interference with Article 10 rights, account needs to be taken of Article 10(2): the question of justification for the interference. Yes, the question whether the conduct was reasonable must properly take account, and give significant weight to, Article 10(1) and (2) factors. But the magistrates (and in a racially aggravated case, if tried on indictment, it would be the jury) do not conduct a proportionality assessment or ask a proportionality question. Instead, they ask this question: whether the defendant’s conduct was reasonable “taking account of” and “giving significant weight to” Article 10(1) and (2) considerations.

In support of this line of analysis, emphasis was placed on these features of the judgment of Lord Reed in Abortion Services. (1) First, Lord Reed’s observation that it was incorrect to say that all convictions of protesters must be proved to be justified by a proportionality assessment (see §§28-29, 42, 63). (2) Secondly, Lord Reed’s observations about the law pre-Ziegler regarding the s.137 offence of wilful obstruction of the highway where rights of freedom of speech and assembly were “treated as an important factor in the assessment of reasonable user [of the highway]” (§22), rather than using “a complex legal test” (§24). (3) Thirdly, Lord Reed’s observations about defences – including a defence of lawful or reasonable excuse – and the mistake of assuming that such defences necessarily mean that a proportionality assessment is appropriate (§58).

I cannot accept Mr Little KC’s analysis. In my judgement, the Judge was right in law to conduct a fact-sensitive proportionality assessment. It is a central truth of the introduction of the HRA that those whose Convention Rights are being interfered with are entitled to the effective judicial protection of the application of the proportionality standard, as Lord Sales explained in Ziegler at §131. There is no other standard “taking account of” or “giving significant weight to” Article 10(1) and (2) considerations.

It is important to be clear about the basis which Lord Reed identified for the points which he was making in Abortion Services. It is all set out clearly in the judgment. It came to this (all references are to Lord Reed’s judgment):

The key points at the heart of this analysis had been encapsulated in two sentences, as follows, by the Criminal Division of the Court of Appeal in Attorney General at §52:

In the present case all of the following are true: (i) the Interested Parties’ Convention Rights are engaged; (ii) the Interested Parties’ conduct was within the scope of those rights; (iii) a conviction would be an interference with those rights; (iv) it is not the case that the elements of the offence, or some recognisable feature, puts their conduct beyond the scope of those rights; (v) it is not the case that the proportionality question is answered by the elements of the offence, or by some other recognisable feature of the case, including addressed at a level of generality by a proportionality assessment of the statutory provision (s.4A).

What follows from these truths is that a fact-sensitive proportionality assessment was needed; and the route to achieve this was within the Reasonable Conduct Defence. In Lord Reed’s words, what became “relevant” was “the proportionality” of the “restrictions on the exercise of rights under articles 10 and 11” (Abortion Services §52); it was the “assessment of the proportionality of a conviction in the circumstances of [the] individual case[]”, where the Reasonable Conduct Defence was the “route by which a proportionality assessment can be carried out” (§57).

Mr Little KC is right that Lord Reed described “a complex legal test” (Abortion Services §24). Lord Reed explained when the proportionality assessment would not be necessary. But he was not criticising or detracting from it as the disciplined sequence of questions. Indeed, he referred back to precisely this test when he later said “the determination of whether an interference with a Convention right is proportionate … involves the application, in a factual context (often not in material dispute), of the series of legal tests set out in para 24 above” (§30). He was not saying that proportionality is invariably, and in every case, an elaborate exercise. The objective and its legitimacy may, for example, be accepted or obvious. It is not just the factual context which may not be in material dispute. Where it is needed, a proportionality assessment – after any relevant findings of fact – needs a discipline. That is true in the criminal context, just as it is when county courts decide housing possession cases or Westminster magistrates’ court decides extradition cases.

Lord Reed also discussed the pre-Ziegler case-law on s.137 wilful obstruction of the highway (at §22). In doing so, Lord Reed identified a post-HRA case: Buchanan v CPS [2018] EWHC 1773 (Admin). In Buchanan the crown court, in dealing with the appeal against conviction of a protester who had deliberately blocked traffic in Parliament Square, had approached the statutory element of “without lawful authority or reasonable excuse”, specifically asking and answering the proportionality question: whether there was a “necessary” interference with Mr Buchanan’s Convention Rights. That question was directed at Mr Buchanan’s arrest and prosecution. In the light of the subsequent case-law, the question would now be directed at conviction. But it was unmistakeably the proportionality question.

On this part of the case, it is worth returning to the line of cases between 2001 and 2004, concerning the Reasonable Conduct Defence in s.5 of the 1986 Act: Percy; Norwood and Hammond. I have discussed these in the context of the burden of proof and the proportionality question (§§22-24 above). Each of those cases expressly recognises the fact-sensitive proportionality assessment arising as part of the Reasonable Conduct Defence. In Percy the Court emphasised the Reasonable Conduct Defence (§26), the need for justification for any interference with the Article 10 right that was engaged (§27) and the crucial stage of a balancing exercise under Article 10 (§33). In Norwood the Court spoke of the way in which Article 10 intrudes on the operation of a s.5 prosecution as being whether the defendant’s conduct was objectively reasonable. That was to be answered having regard to all the circumstances, including importantly those for which Article 10(2) itself provides, requiring consideration whether conviction (marking as criminal the accused’s conduct) was a necessary restriction of their freedom of expression for the prevention of disorder or crime and/or for the protection of the rights of others (§37). In Hammond the Court spoke of the Reasonable Conduct Defence (§22), of the Convention considerations treated as arising when that defence is considered, and specifically of the notion of proportionality: whether the restriction was necessary in a democratic society (§27). That was the discussion referenced when the Court spoke of the questions for the magistrates, critical to the appeal, as including whether the conduct was reasonable for the purposes of the defence “with particular reference to all the considerations” – “deriving from Article 10 of the European Convention of Human Rights” – to which it had “referred”. So, this line of authority identified the proportionality assessment within the Reasonable Conduct Defence, for the purposes of s.5 of the 1986 Act. There is a principled read-across to s.4A.

This is the line of cases expressly referenced in James v DPP [2015] EWHC 3296 (Admin) [2016] 1 WLR 2118, as cases where the proportionality of the prohibitions or restraint on expression and assembly “form part of the statutory defence that the accused’s conduct was reasonable” (§34). That, in turn, was the passage referenced in Attorney General at §46 and in Abortion Services at §52. This same line of cases had also been discussed in Ziegler, in the Divisional Court’s judgment [2019] EWHC 71 (Admin) [2020] QB 253 at §88. We were shown no passage in any authority which calls them into question. And, as it happens, they fit with Buchanan.

There is also illumination to be found in a recent case. In Hicks v DPP [2023] EWHC 1089 (Admin) [2023] 2 Cr App R 12, the Court upheld a conviction by the Cheltenham magistrates of an offence in contravention of s.5 of the 1986 Act. The offence arose out of a confrontation with NHS clinicians on the stairwell of a hospital during a Covid lockdown. The conduct was found proved to be threatening and abusive. The Court recognised that there was no freestanding proportionality question, arising after the application of the elements of the offence and the Reasonable Conduct Defence (§§29(e) and 48). In a passage specifically addressing that defence the Court recognised the relevance of Article 10, explained why the conviction was compatible with the defendant’s Article 10 rights (§§42-43), and added that “the Judge was obliged to consider whether the conviction was a proportionate interference with Article 10 rights” (§47). Here too we see the proportionality assessment featuring in the Reasonable Conduct Defence.

In the present case, the Judge did precisely what the Court in Norwood at §37 had said was “importantly” necessary: “consideration whether to mark as criminal the accused’s conduct … as a necessary restriction of his freedom of expression”.

Finally, this by way of end-note. The Judge had received a Prosecution skeleton argument which argued against any freestanding proportionality question beyond the components of s.4A, and which submitted that the Reasonableness Defence “should be interpreted in accordance with Article 10 and 11 and particularly 10(2) and 11(2)”. Authority was then cited by the Prosecution, including for the principle that the justification for interference with the right to freedom of expression must be “convincingly established”. Even when the Prosecution made its application to the Judge to state a case, the points about the legal inappropriateness of a proportionality assessment were not raised as suggested errors of law. That was notwithstanding that Attorney General had already been decided, and Abortion Services was decided two days after the application was made; and before the Interested Parties responded and the Judge made his decision.

This is issue (2). It focuses on the public law legality of the Judge’s conclusion that the case was not proven, because it was not proportionate to criminalise the words “Tory scum”. Mr Little KC submitted, by reference to the public law standard of reasonableness, that the Judge’s conclusion was not open to him; and that we should quash the acquittals and remit the case for a retrial. His submissions, in essence as I saw them, were as follows. The Judge focused exclusively on the words used, when he needed to consider the evidence as a whole. The context in which the words had been used was highly relevant to the question of the reasonableness of the conduct, including any proportionality question. This was conduct which involved not only a politician, but also two others plainly associated with that politician. All three were impacted. That behaviour was alongside, and continued after, the traffic cone conduct of the third party. There are features of the evidence which made it unreasonable for the Judge to find that the Interested Parties’ conduct amounted to a reasonable exercise of their Convention rights. These are reflected in points which were identified in paragraphs 11 and 12 of the application to state a case: the targeted and intimidatory nature of the behaviour, including its duration and proximity; that the conduct was intended – as the Judge accepted – to cause alarm and had that intended effect, in the case of all three individuals affected; that these were insulting words shouted during a pursuit, in a busy street; that the Interested Parties continued after Sir Iain was assaulted with the traffic cone; and that the Interested Parties’ protest descended into an intimidating and bullying atmosphere. Linked to this is the fact that the target of the conduct could not simply avert their eyes or walk away (cf. Abortion Services §145). In light of the context and circumstances, the Judge failed to strike a fair and rational balance between the competing interests and rights at stake. His conclusion was not open to him.

I cannot accept those submissions. The Judge’s approach, reasoning and conclusion on the proportionality question involved no error. The Judge had very well in mind the context and circumstances. He had heard the evidence about them. He watched the videos; as have we. The Approved Note recorded the Judge’s finding about being satisfied that there was “a targeting of IDS”; that the use of the words Tory scum was “insulting and pejorative”; and that this was the intent of the Interested Parties. And the Certificate (§12) recorded that all three had been caused “alarm”. It is true that the Judge’s principal focus was on what was said by each of the Interested Parties, their purpose in saying it, and the way in which it was said. But all of that was for the legitimate and straightforward reason that it was “insulting words” which the Judge found proved. This is why the Judge spoke about the proportionality of criminalising “these words”. Importantly, there was no finding of using “threatening words” or of “threatening behaviour”, nor indeed of using abusive words or of abusive behaviour, nor of using insulting behaviour. There is no challenge to any of this. There was no joint enterprise case advanced. As the Judge recorded, the Prosecution in closing had accepted that their case was really based on the use of “Tory scum”.

None of that means that the Judge was looking at the words in isolation from the context and circumstances. The Judge (Certificate §4) set out in terms that the focus was on “the circumstances” and that “in this case on these facts” the use of these words did not amount to an offence, because “in the circumstances” it was reasonable and protected by the Convention. The Certificate recorded the pursuit including what could be seen from the video evidence. It referred to the distance between Sir Iain and his party on the one hand, and the Interested Parties on the other. The Judge referred to the evidence of the impact on all three members of the party. He referred to the third party individual who ran up behind Sir Iain and placed the traffic cone on Sir Iain’s head. He referred to the events continuing, with the First Interested Party banging a drum and shouting still some distance behind Sir Iain. He referred to the Second Interested Party and the speech they were making. The Judge referred to the intent as being to cause “alarm”, and the impact as being that “alarm” was caused. But characterisations such as “intimidatory”, “intimidating and bullying” and “gratuitous offensive personal abuse” – all of which appeared in paragraphs 11-12 of the application to state a case – did not fit with what the Judge found, as he pointed out in the Certificate (§30). The fact that the Judge had regard to the context is also obvious from the fact that the Judge made a finding about why the words had been used: “the use of Tory scum was to highlight the policies of IDS” (Approved Note §[4]), and the Judge plainly had careful regard to the evidence about those words and the Interested Parties’ use of those words (Certificate §§13, 15-19). That was part of the relevant context, in relation to the use of the insulting words. It is why the Judge spoke of the context as one of legitimate protest. And as I have explained, and as he emphasised in the Certificate, the Judge specifically asked the Prosecution to identify what made the term unreasonable in all the circumstances. The Prosecution emphasised the “drumming and shouting being persistent and continuing after the incident with the traffic cone” and had nothing to add.

So, this was an “insulting words” case. It was not a “threatening” words or behaviour case. It was a case about causing, and intending to cause, “alarm”. It was a case where any crime lay in each of the Interested Parties’ own conduct, not the actions of third parties. It was a case involving an unassailable finding that the use – in the case of each of them – of the phrase “Tory scum” was “to highlight the policies of IDS”, in the light of identified evidence relevant to that question. In the light of these points, and in light of all the evidence and points made relating to context and circumstances, there is nothing in my judgment – whether individually or cumulatively – which can serve to undermine as wrong the evaluative conclusion of proportionality at which the Judge arrived, and which was the basis of his finding of reasonable conduct.

Finally, on this issue, I have recorded that Mr Little KC addressed this part of the case by reference to a public law standard of reasonableness review. For the First Interested Party Mr Wainwright, whose submissions were adopted by Mr Greenhall for the Second Interested Party, made clear that they were content – albeit in judicial review proceedings – to adopt the test from Ziegler at §§54 and 105, to which the Judge himself referred in the Certificate when explaining why he had declined to state a case. The Ziegler formulation asks whether there is an error of reasoning on the face of the Judge’s ruling which undermines the cogency of the conclusion on proportionality. In the course of argument, we were shown §25 of Lord Reed’s judgment in Abortion Services. In my judgment, nothing turns in the present case on the formulation of the test to be applied. Even on an objective correctness-standard, I would decline to interfere with the Judge’s evaluative assessment on the proportionality question.

This is issue (3): whether the Judge’s decision to refuse to state a case was vitiated by any public law error. Having been invited to consider issues (1) and (2), and having arrived at the conclusions which I have explained, there is in my judgment no remaining utility in the suggestion that we should overturn and quash the refusal to state a case and direct that a case be stated.

Mr Little KC submits, in essence, as follows. The Judge’s approach and reasoning were erroneous. Bearing in mind the high threshold which has to be crossed for an application to state a case to be characterised as “frivolous” for the purposes of s.111(5) of the 1980 Act, and bearing in mind the application that was made and the points that were raised, the Judge clearly fell into error and his characterisation was wrong and unreasonable. The procedure for a case stated would have been far preferable because it would have involved the mechanism for a fully stated case, embodying findings of fact.

What “frivolous” means is that the application is considered to be futile, misconceived, hopeless or academic. Here it was misconceived and hopeless, in the view of the Judge, for the reasons that he gave. The true nature of the challenge was that the prosecution disagreed with the decision, but they were dressing this up as an error of law. The error of law was being suggested was an insufficiency of evidence. The invited question was about “sufficient evidence” for finding “as a fact” that the Interested Parties’ conduct amounted to a reasonable exercise of their Convention Rights. The question posed was fundamentally flawed, it was not clear from the application which findings of “fact” were said to have been made “without evidence”, and the features of the evidence being relied on had not been relied on when the Prosecution was asked what made the conduct unreasonable.

In my judgement, these were fair and justified observations. It is revealing that the case become a case about the burden of proof, about whether there is a proportionality assessment, and about whether the Judge’s evaluative conclusion of the proportionality assessment was wrong. No objection was taken by the Interested Parties to the issues which the Prosecution has raised with the Court. They have been addressed on their legal merits. But they are several steps removed from the application to state a case. Even now, this is not a case about findings of fact or a conclusion of fact, or about the sufficiency of evidence for a finding of fact. In my judgment, the Judge was not wrong – still less unreasonable – to conclude that the application to state a case was misconceived. But, as I have explained, there is no utility at all in overturning his decision or remitting the case to him to state a case.

In those circumstances and for those reasons, I would dismiss this claim for judicial review.

There is a postscript to the issue of the Reasonable Conduct Defence – Burden of Proof (§§13-25 above). In response to circulation of this judgment in draft, Mr Little KC and Mr Boyd have asked that the judgment record – as their “core submission” – that the legal burden remained on the defence to prove that a defendant’s “conduct amounts to a reasonable exercise of their Convention rights”. On that basis, I am invited to rewrite the judgment at §§13, 19 and 21 above. I decline to do so. The formulation – “conduct amounts to a reasonable exercise of their Convention rights” – was a global one. It was designed to include Article 10(1) questions, including whether Article 10 rights apply. It was designed to include Article 10(2) questions. Crucially, that means the proportionality question. It was on the proportionality question that the dispute lay. That was where the Judge placed the onus on the prosecution (§18 above). What was, and is, needed is focus. The oral hearing supplied it. Mr Little KC and Mr Boyd, through their global written formulation, and in the focused oral submissions, were – crucially – contending that the legal burden was on the defence on the proportionality question. The fact that their global formulation extended to the proportionality question, and the way it was deployed to join issue with the Interested Parties on the proportionality question, were clear. This is from Mr Little KC and Mr Boyd’s skeleton argument (the emphasis is mine):

I agree.