Abdul & Ors v Director of Public Prosecutions  EWHC 247 (Admin) (16 February 2011)
This case held that the right to freedom of expression, by way of protest, may be limited in order to maintain public order.
This case involved an appeal in the High Court of England and Wales (‘EWHC’) of a decision of a decision to charge a number of participants in a protest with offences under section 5 of the Public Order Act 1986 (UK) (the ‘Act’). This provision makes it an offence to use threatening, abusive or insulting words or behaviour, or to display a sign which is threatening, abusive or insulting, within the hearing or sight of a person who is likely to be caused harassment, alarm or distress by this. Under section 5 of the Act, a person will have a defence if they can prove that the conduct was ‘reasonable’. Further, in order for an offence to arise, the person must intend his/her words, behaviour or sign to be threatening, abusive or insulting, or be aware that it may be so.
The appeal considered whether Article 10 of the European Convention on Human Rights (‘ECHR’) (the right to freedom of expression) should be given full consideration when the prosecution is attempting to prove an offence under section 5 of the Act. It also considered issues of procedural fairness, and considered whether a defence arose due to the appellants’ actions being reasonable.
The appellants had participated in an organised protest against the war in Iraq and Afghanistan, which was held alongside a public parade scheduled to welcome home soldiers returning from these wars. During the protest the appellants called the returning soldiers ‘murderers’, ‘rapists’ and ‘baby killers’ and shouted ‘go to hell’. They were not arrested at the time of the protest, but some tension arose between the protestors and the participants in the parade. Some months later a number of the protestors were charged under section 5 of the Act.
The appellants had sought a stay of proceedings, in the lower courts, on the basis of abuse of process as they claimed there had been a legitimate expectation that they would not be prosecuted and that it was unfair for them to be tried. The respondent argued that there was no abuse of process because there had been no assurances other than that the police would do their best to facilitate the protest and the police had not indicated on the day of the protest that prosecution would not follow.
The Court found that the prosecutions were reasonable and appropriate. It found that there was no abuse of process, and that the appellants were not given an ‘unequivocal representation’ that there would not be further action arising as a result of the protests.
The Court also held that sections 5 and 6 of the Act needed to be read together with Article 10 of the ECHR. In doing so, it stated that the ‘starting point is the importance of the right to freedom of expression’ and that legitimate protest can be offensive, and sometimes must be to be effective. The Court stated that ‘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’. Accordingly, any justification for interference with this right must be ‘convincingly established’. For a section 5 offence to arise in these circumstances there must a prima facie case that the expression was ‘threatening, abusive or insulting’ and prosecution must be a proportionate response.
The Court held that the expressions by the appellants gave rise to a clear threat to public order and went beyond legitimate expressions of protest. Accordingly, it held that prosecution was a proportionate response. It found that the delay was appropriate in order to allow police to concentrate their efforts on preventing outbreaks of violence on the day, and to then consider the facts and evidence prior to laying charges.
Relevance to the Victorian Charter
This case is relevant to the scope of the right to freedom of expression and the right to peaceful assembly and freedom of association under sections 15 and 16, respectively, of the Charter. The scope of these rights are comparable to Article 10 of the ECHR. In particular, section 15 provides for the right of freedom of expression to be limited by lawful restrictions necessary to maintain public order. Section 7 of the Charter also provides for reasonable and justified limitations of rights protected under the Charter by law.
Accordingly, this case indicates that there may be limitations on the right to protest, in line with legislative offences, as is considered necessary to maintain public order.
It is relevant also to note that the ‘move on’ power in section 6 of the Summary Offences Act 1966 (Vic) contains an exclusion for persons demonstrating, protesting or publicising their view about an issue.
The decision is at http://www.bailii.org/ew/cases/EWHC/Admin/2011/247.html
Mandy Lister is a volunteer lawyer with the Human Rights Law Resource Centre and Australian Lawyers for Human Rights