Section 4A Public Order Act 1986: accommodating freedom of expression, Dehal v Crown Prosecution Service [2005] EWHC 2154

Vanessa Bettinson LLB, LLM

Lecturer in Law at De Montfort University

[email protected]

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Contents

Bibliography

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Facts and Issues

In Dehal v Crown Prosecution Service [2005] EWHC 2154, the appellant, a Sikh man, put up a notice at a Sikh Temple that he had attended for many years. It was written in Punjabi and attacked the President of the Temple and other members of the Committee.  Mr Dehal intended the notice to be read by those it was aimed at and other worshippers. He was convicted at Luton Magistrates’ Court for an offence under the Public Order Act 1986, s 4A (1). He appealed to the Crown Court by way of a rehearing but was unsuccessful.

The appellant appealed against the Crown Court decision to the Divisional Court by way of case stated. In fact the case was put before the High Court of Justice Queen’s Bench Division Administrative Court because of the need to resolve the issues during a vacation period. On an appeal by way of case stated the High Court cannot overturn a decision on the facts. The appeal therefore required the High Court to consider that the Crown Court had misapplied the law to the facts in this case. The Crown Court found that the appellant had displayed a notice that was abusive and insulting to Mr Nagra, the President of the Temple, intending it to cause harassment, alarm or distress and in fact causing such harm. A belief in the truth of the content of the notice did not preclude this finding. His actions could not be considered to be reasonable in these circumstances, a defence available under s 4A(3)(b) to him if he had established on a balance of probabilities that his conduct was objectively reasonable.

The crux of the appeal involved the relationship between Article 10 of the European Convention on Human Rights (ECHR) which protects the defendant’s right to freedom of expression and the s 4A offence. The court was presented with the following questions: was the prosecution of the appellant a proportionate response to his conduct? Secondly, did Article 10 provide him with a defence therefore making the interference with the appellant’s freedom of expression unnecessary?

Allowing the appeal the court determined that although all the elements of the offence were present, the prosecution had not presented enough evidence to establish that bringing a criminal prosecution was a proportionate response to the appellant’s conduct.

Issues

It is submitted that the court came to the right conclusion in allowing the appeal, but for the wrong reasons. The court ought to have considered human rights issues when determining whether Mr Dehal’s conduct was reasonable in accordance with previous cases Hammond v DPP [2004] EWHC 69 (Admin) and Norwood v DPP [2003] EWCH 1564 (Admin). The reasoning of the court in Dehal has the potential to hinder unnecessarily the prosecution’s decision to prosecute by adding additional aspects to consider even where both the evidential and public interest criteria are established. (As required under the Code for Crown Prosecutors (see www.cps.gov.uk)). It is also argued that the court wrongly accepted the lower court’s application of the law to the facts and indeed the defendant’s conduct could be objectively reasonable in light of the fact that his freedom of expression is protected by Article 10. Courts have a duty to interpret offences compatibly with the ECHR as far as it is possible to do so (Human Rights Act 1998, s 3(1)). The expression in Dehal was a personal insult with no racial or religious features therefore there must be strong reasons to interfere with the defendant’s right to freedom of expression. Under such circumstances a preferable charge in this case would have been for an offence under the Protection of Harassment Act 1997.

The right equation?

The actus reus of a s 4A offence.

Section 4A (1) was inserted by the Criminal Justice and Public Order Act 1994 and provides that

“A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he –

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.”

The Court determined that on the facts all the elements of the offence had been established by the prosecution. The equation to consider here is the actus reus: has the accused displayed a writing which is threatening, abusive or insulting and as a result caused a person to feel harassed, alarmed or distressed? Dehal did express his opinion in the form of a notice affixed to the notice board in the Sikh Temple. The nature of the terms was not threatening, but it was accepted by the court that the terms were abusive and insulting. A fact not contested by the defendant who had described Mr Nagra, inter alia, as a “proud, mad dog.” The House of Lords has held that the question of whether conduct is abusive or insulting and not merely annoying is a factual one in Brutus v Cozens [1973] AC 854 at 1298-1299. The court also accepted that Mr Nagra was harassed and distressed by the notice.

Level of harm

What amounts to harassment is not defined under the Act and it is difficult to discern how harassment and distress are distinct from each other. Even the Protection from Harassment Act 1997 does not expressly define harassment but states that it includes alarming or causing distress to the victim (s 7(2)). This is particularly interesting since the section 4A offence preceded the creation of the 1997 Act.

A recent Divisional Court ruling R v DPP [2006] All ER (D) 250 (May) DC considered what kind of harm must be experienced by the victim of a s 4A offence. In this case a Youth Court had convicted a 12 year old boy for such an offence. He had gesticulated and called a police officer, who was arresting the boy’s sister at the time, a “wanker”. On appeal to the Divisional Court by way of case stated the conviction was quashed. The evidence did not establish that the police officer had suffered “any real emotional disturbance” or was upset by the boy’s behaviour. An unremarkable decision in many ways as courts consider police officers to have more resilience than other citizens as they frequently deal with alike situations. That said it is relevant that the harm caused must be real emotional disturbance.

Could the court find that the requisite level of harm was reached in the current case? It may be that the fact the notice was placed in a Sikh Temple gives the impression that the notice and its content was an attack on religious beliefs held at that Temple. A state may interfere under Article 10(2) with the defendant’s right under Article 10(1) for prescribed reasons including for the protection of the rights of others. Where competing interests arise, neither will automatically ‘trump’ the other (Harris et al 1995, p 296). The right to freedom of thought, which includes the ability to manifest one’s religion is protected under Article 9. The European Court of Human Rights in Otto-Preminger-Institut v Austria (1994) 19 EHRR 34 accorded great weight to the Article 9 right. Feldman describes this approach as allowing

“states to recognise a right to be free of having opinions which outrage one’s own beliefs expressed in one’s presence or within one’s jurisdiction.”(Feldman 2002, p 1028)

In Redmond-Bate v DPP [2000] HRLR 249, which was decided before the coming into force  of the Human Rights Act 1998, it appeared that the UK courts provided greater protection to the freedom of expression where it clashed with Article 9. However, the more recent case of Hammond v DPP [2004] EWHC 69 (Admin) (discussed below) suggests a move in the opposite direction. Geddis has called the two approaches as pro-civility, where the freedom of expression is restricted to protect people’s sensitivities and transformative, where the freedom of expression is protected and people’s reactions ought not to be accepted (Geddis 2004, pp. 869-870). It can be accepted then that the harm felt by the victim in the current case may be reached if the defendant’s conduct affected his Article 9 right. However, the notice itself was not directed at any racial differences or religious beliefs held by the victim. In fact this case was both intra racial and intra religious. The contents of the notice are described in paragraph 3,

“Mr Nagra …interpreted [the notice] as referring to him in its entirety (as well as other members of the committee); and as describing him as a hypocrite; a liar; a maker of false statements to police in order to have the appellant arrested; a maker of false statements to the press in order to discredit the appellant; a proud, mad dog; a man who has joined with others in assaulting the appellant and who exploits the congregation of the Temple in order to satisfy his own greed.”

Clearly the defendant is expressing an opinion regarding an individual, religion being an irrelevant factor. It has been noted that the Parliamentary Debates prior to the inclusion of the s 4A offence were concerned with serious and persistent racial and religious harassment (Ormerod 2005, p 984) which suggests that evidence of such conduct would create a real emotional disturbance. Where an individual’s reputation is attacked in written form it does not seem to imply a threat to public disorder and the facts of the current case do not fit comfortably within a public order offence such as s 4A. Moses J refers to the importance of a threat to public order in relation to offences under the Public Order Act, but then fails to suggest whether a threat to public order arises in this case (at [7])

It is suggested that the singular act by the defendant in Dehal did not cause the requisite emotional disturbance to the victim. The emotional disturbance experienced by Mr Nagra in relation to Dehal’s conduct seems to have in fact resulted from an accumulation of activity by the defendant. An antagonistic background is referred to in paragraph 6 of the judgment and seems to impact upon Moses J’s reasoning. The court is informed about a history of attempted interference by the appellant in the affairs of the Temple and additional allegations he made against Mr Nagra. It could more accurately be said that Mr Nagra felt harassed and distressed by the course of conduct taken by the appellant. This would allow for a prosecution under Protection from Harassment Act 1997.

The mens rea of a s 4A offence.

The next part of the equation to consider when establishing whether a s 4A offence is made out is that of mens rea. As a crime of specific intent, the prosecution must show that the defendant intended to cause the victim harassment, alarm or distress. Again referring to R v DPP [2006] All ER (D) 250 (May) DC there must be more than an intent to annoy or insult someone. An intent to cause “real emotional distress or disturbance” is required. The court rejected Dehal’s submission that he could not have the necessary intent as he believed the content of the notice was true. This determination was made again by considering all other activity by the defendant as covered in paragraph 6 of the judgment. It is arguable that this one incident was not intended to cause “any real emotional disturbance.”

It is likely that there was an intent to offend and upset the individual, but to preserve the right to freedom of expression a democratic society must tolerate not only acceptable opinions expressed in varying forms but also the offensive and shocking (Handyside v UK (1976) 1 EHRR 737, at para [49]; Redmond-Bate v DPP [2000] HRLR 249, at para [20]). Geddis collates the arguments in favour of this transformative approach (Geddis 2004, p 870-871). Particularly relevant is the idea that allowing individuals to vent their dissent prevents recourse to violence. However, on the facts in Dehal the courts could be satisfied that an intent to cause Mr Nagra harassment, alarm or distress was present.

The reasonable conduct defence

The final part when determining guilt for a criminal offence is to consider whether the defendant has a defence. In the present case Mr Dehal argued that his conduct was reasonable and satisfied the defence under s 4A (3)(b) “It is a defence for the accused to prove- that his conduct was reasonable.” The court correctly stated that this must be an objectively reasonable test and the burden of proof rests with the defendant on a balance of probabilities.

However, the court seems to depart from the case law by not considering the defendant’s Article 10 right in looking at whether his conduct was reasonable. Rather than focus on the defence, Moses J considers whether the actual decision to prosecute Dehal for the s 4A offence complied with Article 10. For it to do so the prosecution must show that a prosecution is in pursuit of a legitimate aim, namely the protection of society against violence and was necessary to achieve that aim (at [9]). This seems odd in light of the fact that violence is not an element of the offence, a point also made by Newman (Newman 2006, p 191). Moses J determined that the prosecution had not shown enough support for the premise that the prosecution was necessary to prevent violence. He refers to the Crown’s skeleton argument that raises the issue of a history of unrest between the appellant and the Temple. As there was no evidence for this or findings about it in the case stated that indicated a threat to public order the prosecution had failed to establish that the decision to prosecute was proportionate (at [11]). This is significant given that the history of unrest and the appellant’s additional behaviour had a bearing on the lower court’s finding of the facts.

This is the wrong approach. Despite the court finding on the facts that all the elements of the offence were present and that the defendant had not shown (on a balance of probabilities) that his conduct was objectively reasonable, the prosecution was apparently unlawful under the Human Rights Act 1998. Two inconsistent statements are made by Moses J. It seems that according to him the prosecution could only be lawful if it was in pursuit of a legitimate aim such as the protection of society against violence (at [9]) or “in order to prevent public disorder” (at [12]). It must also be necessary to achieve either of these aims.

An explanation for the court’s unusual decision can be gleaned from Moses J’s interpretation of Hammond v DPP [2004] EWHC 69 (Admin) which relies on a particular passage of that judgment. Hammond considered the prosecution of a defendant under the Public Order Act 1986 s 5 and illustrates the present position of the law in cases which require the balancing of public disorder and the defendant’s right to freedom of expression. In Hammond the appellant took a placard with the words “Stop Immorality” “Stop Homosexuality” “Stop Lesbianism” and “Jesus is Lord” to the centre of Bournemouth and began preaching his sincerely held religious beliefs. This attracted a crowd unhappy with the sentiments of the preaching and culmunated in physical attacks upon the appellant. He was requested by two police officers to stop preaching and to cover his sign. Upon refusing to cooperate with this request the appellant was arrested and subsequently charged and convicted of a s 5 offence. On appeal to the Divisional Court the relationship between Article 10 and this public order offence was examined. Interestingly Moses J focuses on paragraph 19 of the judgment. However, this passage contains only the opinion of the justices in the lower court. In their opinion,

“The interference with the appellant’s right to freedom of expression by prosecuting him for an offence under section 5 of the Public Order Act was a proportionate response in view of the fact that the appellant’s behaviour went beyond legitimate protest, was provoking violence and disorder and interfered with the rights of others…in these circumstances the appellant’s conduct was not reasonable”

May LJ does not endorse this opinion (at [21]) and he highlights three aspects of the relationship between Article 10 and this public order offence. First Article 10 does not usually provide a defence in itself (at [20]). Secondly, Article 10 considerations apply when determining whether something is insulting ([21]). Thirdly, Article 10 considerations apply to the evaluation of a reasonableness defence ([at 22]). Geddis demonstrates that in practice there is no real difference in the application of May’s test here to that provided in Norwood v DPP [2003] EWCH 1564 (Admin), where Article 10 considerations only applied to the reasonableness defence (Geddis 2004, p 865). He explains that May LJ only applies the Wednesbury test rather than one of proportionality when considering the Magistrates’ Court conclusion on whether the words were “insulting.” May LJ considers and ultimately dismisses the argument that this “was a perverse finding of fact” ([at 32]). Consequently the actual place for Article 10 considerations occur when considering whether the defendant’s conduct was reasonable under s 5(3)(c). May LJ concluded that the lower court had embarked upon the necessary exercise and reached a decision that was open for them to make, that the defendant’s conduct was not reasonable in these particular circumstances (at [33]).

Had Moses J followed the Divisional Court’s reasoning in Hammond the assessment of whether or not the criminal conviction was appropriate would not have become confused with the relationship Article 10 and the defence under s.4A(3)(b) have. The lower courts in Dehal had to have regard to questions raised by Article 10 when considering whether Mr Dehal had established his defence. The prosecution would need to show that his conduct was not reasonable, even though his freedom of expression was protected by Article 10, as the interference was prescribed by law and pursued a legitimate aim and was necessary in a democratic society. Here the prosecution had failed to show that the interference was in pursuit of a legitimate aim, namely the protection of society against violence or to prevent public disorder. However, it is not surprising that the prosecution was unable to show that the prosecution of Dehal with a s 4A offence would prevent violence and disorder. As argued above the defendant’s conduct created no threat to public order.

Prosecuting the Conduct

The case does appear to satisfy the criteria required for bringing a prosecution. First, the CPS Guidelines that include the “Full Code Test” require that when making a decision to prosecute the prosecutor must have regard to evidential criteria and whether it is in the public interest to proceed (CPS 2004, paras 5.1-13). The court found that there was sufficient evidence to show that the offence had been committed satisfying the evidential test. Once this is satisfied the prosecutor must have regard to the public interest limb. This is not a mathematical exercise and there are a number of factors to consider. It does appears that in this case the Crown Prosecution Service could be satisfied that there is a public interest in bringing a prosecution and ordinarily human rights issues are considered at this point. The allegation of several activities against the victim by the defendant would be a relevant factor and suggests that a prosecution would not be an abuse of power. It is disputed that the prosecution brought the correct offence given these particular circumstances of this case.  

However, by focussing on the proportionality of the prosecution it could be suggested that Moses J is suggesting, albeit unwittingly, that before prosecutors consider the “Full Code Test”, they must be satisfied that a prosecution would be compatible with the ECHR. It must be a proportionate response to the conduct in question. This seems to overcomplicate decisions to prosecute.

Potentially a defendant could argue at a preliminary stage that bringing a prosecution for a s 4A offence would be a breach of their Article 10 right and consequently an abuse of process. This decision on abuse would be subject to an appeal by way of case-stated to the High Court. If the rejection is upheld then the matter would return to the Magistrates’ Court for trial where, presumably, certain ECHR arguments would be relevant to any decision on ‘reasonableness’. The decision of the Magistrates’ Court is subject to an appeal to both the Crown Court and High Court. Accordingly, in an hypothetical world, up to five hearings could take place for the one set of facts, a highly questionable use of resources and an unlikely envisaged consequence of this decision. This situation can be avoided by following May LJ’s reasoning in Hammond and incorporating the Article 10 issues in the defence rather than query whether the actual decision to prosecute is compatible.

Setting that aside, it is clear from the discussion above that there are doubts as to whether the lower court made the correct findings of fact, and indeed whether all the elements of the offence were present. Even if this point is disputed the defendant’s conduct could attract a defence under s.4A(3)(b), being objectively reasonable in light of the protection of the freedom of expression by Article 10. The importance of placing this offence under the Public Order Act 1986 suggests that the aim was to prevent public disorder and not to protect people from being offended by the opinions of others where it has no bearing on their religious beliefs.

In this case the written opinion expressed by Mr Dehal contained no racial overtones and did not affect the victim’s right to hold and manifest his own religious beliefs. In fact prior conflict seemed to concern the Article 9 right of the defendant to express his religious belief that the teachings of the Temple followed an incorrect translation of the Holy Book (at [3].) The police and CPS may not have appreciated that this case did not present an issue of public order and religious conflict, being misled by the location of the offence, a Sikh Temple.

Ultimately it is suggested that the difficulty with this case is that the conduct is not linked to public order and the wrong offence has been charged. Instead a more suitable charge would be for an offence of harassment under the Protection from Harassment Act 1997, s 2(1) the punishment for which is identical to the s 4A offence (See s 2(2)). The harm that occurs here could be harassment caused by a course of conduct, defined by s 7(3) as conduct occurring on a least two occasions, pursued by the defendant. The defendant has a defence if he can demonstrate.

“that in the particular circumstances the pursuit of the course of conduct was reasonable.” (see s.1(3)(c))

By virtue of Article 10(2) an interference with the defendant’s Article10 rights can be justified for the protection of the rights of others. In relation to an harassment offence this would involve the protection of the victim’s right to respect for private life protected by Article 8 ECHR. Neither right is absolute and where they conflict the two interests must be balanced in each individual case (see Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47 at [17]). The evidence would suggest that in the present circumstances Dehal’s course of conduct was not reasonable and a conviction for an harassment offence would be proportionate: a necessary means in the pursuit of a legitimate aim.

Conclusion

Moses J was right in allowing the appeal, but his reasoning did not follow established precedent. The confusion ultimately arose as a result of the CPS bringing the wrong charge. Following Hammond it is clear that a reasonable defence for a public order offence will take into account Article 10 issues.

Bibliography

A Geddis,  (2004) ‘Free Speech Martyrs or Unreasonable Threats to Social Peace?-“Insulting” Expression and Section 5 of the Public Order Act 1986’  Public Law 853.

D Feldman, (2002) Civil Liberties and Human Rights in England and Wales 2nd ed (Oxford, Oxford University Press).

D Ormerod, Smith and Hogan Criminal Law 11^th ed (2005: Oxford, Oxford University Press).

R Ward and A Wragg, ( 2005) Walker and Walker’s English Legal System 9^th ed (: Oxford, Oxford University Press).

C Newman,  (2006) ‘Divisional Court: Public Order Act 1986, s. 4A: Proportionality and Freedom of Expression’  70 Journal of Criminal Law 191.