“British soldiers go to hell” and free speech

21 February 2011 by

Munim Abdul and Others v Director of Public Prosecutions [2011] EWHC 247 (Admin) – Read judgment

The High Court has ruled that prosecution of a group of people who had shouted slogans, including, “burn in hell”, “baby killers” and “rapists” at a parade of British soldiers, was not a breach of their right to freedom of expression, protected by Article 10 of the European Convention on Human Rights.

Five men were convicted of using threatening, abusive or insulting words within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby (contrary to section 5 of the Public Order Act 1986). The men launched an appeal, raising amongst other things the question of whether the decision to prosecute them for shouting slogans and waving banners close to where the soldiers and other members of the public were was compatible with Article 10.

Freedom of expression is protected under Article 10 of the European Convention. However, Article 10 is subject to a number of qualifications. In practice, UK freedom of speech rights are more constrained than, for example, in the United States, where even “hate speech” is generally protected under the First Amendment to the US Constitution (see Adam Wagner’s post on the Congressman Giffords shooting for more).

“British soldiers go to hell”

The men had intended to participate in a protest against the wars in Iraq and Afghanistan at a parade of British soldiers. Relatives and friends of the soldiers were expected to be among the members of the public attending. Representatives of the protesters met with police beforehand, and management of the protest was discussed, but there was no discussion about what would amount to legitimate protest.

A small group of protesters shouted slogans near to where the soldiers were passing, which included “British soldiers go to hell”, “terrorists” and “cowards”. The protesters were not arrested on the day of the protest (see this report). They complied with directions from the police and there was no evidence the police warned them to cease chanting the slogans. They were filmed during the protest.

Later, after consideration including reviewing of the footage of the protest, they were charged with the section 5 public order offence. DJ Mellanby heard the trial, which led to convictions of 5 of the Appellants. During the trial, the Appellants raised the question of whether Article 10 was breached by the bringing of a prosecution. The Judge considered that it was not, finding that the prosecution was necessary and proportionate. She found they had gone beyond “putting a point across”.

The Appeal

A number of points were raised in the appeal. Of particular interest was the question of whether the Judge had been entitled to come to the conclusion that the prosecution was proportionate, in the light of Article 10.

The Appellants argued that the fact that the police had not arrested them on the day of the protest was a “powerful indication” that prosecution was disproportionate. They questioned what the point of the discussion with the police was, if they were nevertheless to be prosecuted. The importance of freedom of expression was emphasised.

The DPP accepted that the men’s Article 10 rights were engaged, but argued they had gone beyond reasonable legitimate protest. Those in the vicinity would clearly have been alarmed or distressed. The situation was likely to be repeated. It was hard to think of a situation to which the Public Order Acts were more appropriate. Serious public disorder could have resulted from the protest. These factors meant that prosecution was proportionate, it was argued.

The Relationship between Section 5 and Article 10

Lord Justice Gross gave a summary of the legal principles governing the relationship between section 5 and Article 10 at paragraph 49:

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.

Article 10.2 qualifies the right to freedom of expression. In other words, while some rights are unqualified, meaning they can never be breached lawfully (for instance, Article 3 which prohibits torture), Article 10 contains exceptions. Article 10.2 provides:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Gross LJ continued at paragraph 49:

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.”

In this passage he stressed that every case will depend on its own facts, when it comes to determining when someone’s speech goes beyond what it legitimate. The more serious the threat to public order, the more likely it is that the speech is not legitimate protest. He continued:

“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.

In other words, if the prosecution’s case, assuming that it is proved, would not satisfy all the elements of section 5 necessary for the offence in question to be committed, it cannot be right to prosecute. If all the elements are contained in the prosecution’s case, assuming it can be proved, then the question of whether it is proportionate to prosecute arises. He further added:

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] AC 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.

He considered that the Judge had applied the right test, so was entitled to find that the decision to prosecute was proportionate.

Very clear threat to public order

At paragraph 52 Gross LJ stressed that the Judge was entitled to find that the words in question went well beyond legitimate protest: there was “a very clear threat to public order”. Their words were “potentially defamatory and undoubtedly inflammatory”. This background, and the fact that the events are likely to recur, meant that bringing a prosecution was a proportionate response. The facts that the men were not arrested on the day and they had a discussion with police before the protest did not change this:

…dialogue [with police] can only help to reduce the risk of untoward events but it cannot guarantee in advance that the words and conduct of protesters will not contravene the law.

Mr Justice Davis added at paragraph 55, that exercise of the rights in Article 10 and Article 11 (the right to peaceful assembly) carries duties and responsibilities. He noted that two people who had reacted to the protest made by the Appellants were charged and convicted for their actions. In this case, the Appellants were making comments “specifically directed at the nearby marching soldiers” and these comments were “personally abusive and potentially defamatory of those soldiers” (paragraph 61).

The men’s appeal was dismissed. Not all speech is protected by freedom of expression rights, and not all protest is legitimate in the eyes of the state.

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  1. I respectfully disagree with the Judges, and I’m tempted to believe that this ruling is politically influenced. The 5 men in question have been convicted for simply protesting against a war they don’t support.

    I think Strasbourg would rule otherwise.

    1. stormy says:

      I repectfully agree to disagree with what you have said, yes i totaly agree with an individuals right to free speech just as long as what that individual is saying is based on truth/fact, >calling members of our armed forces, Murderers, child rapists, scum, and for them to burn in hell, is nothing more than inflamatory, slander, defamation of character, and these wahabi islamists should remember that the UK is not an islamic state and they have no more rights here than anyone else in our democratic society, if they dont like it then they should move back to the third world islamic lands where they can shout all the verbal hatred that they want, i doubt very much whether they would survive for very long, and end up on the end of a rope, or having their heads seperated from their bodys.

  2. Lloyd Jenkins
    ” Are you sure it’s that simple? Democracy also includes the rights to privacy (itself often at odds with free speech), to fair trial, to life and to freedom from torture. It includes the separation of powers, secularism and the responsibility to follow the law. All of that is reflected in the ECHR and caselaw…it’s messy, you may not like it, but there it is. ”

    You’ve hit the nail on the head – nothing is ever that simple but where do you draw the line; if you sanction any limitations against anyone, anywhere, then you open the floodgates for abuse and this government needs no excuse to remove our rights.

    Various freedoms may be at odds with each other but no situation should exist where freedoms are removed to make life simpler.

    Because I am a non-smoker does that mean that all smoking should be banned or do I stand up and advocate for the right to smoke and depend on the good judgement of smokers to not infringe my right not to smoke?

    I would rather inhale a lungful or two of nicotene by way of passive smoking than open the door for self-serving and corrupt government officials to remove basic freedoms in my name.

  3. Stephen says:

    Usually, I find the decisions of our judges logical and correct. This is not one of them.

    Prosecuting the protesters is, as far as I can see, disproportionate. I believe this because the Police did not warn them at the time of the protest. A more proportionate response would have been to ask the protesters to desist at the time they were said to be causing offence to others.

    Criminalising the protesters, whose life and work chances may now be severely impaired, is quite an extreme measure to take. Too extreme given the circumstances of the case.

  4. Greg Jacobs says:

    The British army and those who serve in it are some of the most dedicated and professional people in the world. They did not decide to attack Afghanistan, that was a political decision and they are just carrying out orders under the very toughest conditions. The people who protested against the soldiers seem to have forgotten that the Taliban ruling Afghanistan would be much worse for the people of Afghanistan. The Taliban is a medieval and backward which doesn’t belong in today’s world. If those people wish to protest at least protest against the right people, the politicians!

  5. There’s always a fine line between “if they don’t like the way we do things in this country then they can go back to their own” and the whole democratic process.

    While we may not agree with what these people are shouting, in a free and democratic society we have to consider their right to free speech as much as the next mans right to free speech.

    From a personal point of view, we support the efforts of our troops and intellectually we know that they are probably presented with situations which we can only comment upon and unless we are willing to sign up and experience it first hand, we can only offer armchair support.

    Let it be said though that this freedom and right to free speech must extend to all equally so the removal of things like Speakers Corner and the concrete blocks placed in Parliament Square to hamper lawful protests are basic freedoms that have been removed from the people of this country unlawfully.

    This trend continues unabated with CCTV camera’s invading and monitoring every more we make “for our own safety” – this is the trend that must cease.

    The previous government imposed so much legislation that it is difficult to think of a situation in which one will not find oneself at odds with the law.

    The current government is doing nothing to repeal those laws and the diluted efforts of the Protection of Freesoms Bill are simply not enough to restore what is rightfully ours so rather than being a “new dawn for privacy” it is simply paying lip service to the rightful concerns of law abiding free thinking men and women of this land.

    DEMOCRACY = FREEDOM OF SPEECH … you may not like it but there it is.

    1. Lloyd Jenkins says:

      “This trend continues unabated with CCTV camera’s invading and monitoring every more we make “for our own safety” – this is the trend that must cease.”

      With the exception of the camera-shy, I don’t see how CCTV stops freedom of speech. The very point of public speech is to be seen and heard.

      “The previous government imposed so much legislation that it is difficult to think of a situation in which one will not find oneself at odds with the law.”

      Only for those with a wildly criminal imagination. As far as I’m aware I haven’t committed a crime in the past 6 months. Many of the crimes created by the last government will never affect me (regulatory ones, for instance) so their existence doesn’t oppress me in any sense.

      “DEMOCRACY = FREEDOM OF SPEECH … you may not like it but there it is.”

      Are you sure it’s that simple? Democracy also includes the rights to privacy (itself often at odds with free speech), to fair trial, to life and to freedom from torture. It includes the separation of powers, secularism and the responsibility to follow the law. All of that is reflected in the ECHR and caselaw…it’s messy, you may not like it, but there it is.

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