[View without highlighting]
[Printable RTF version]
[Buy ICLR report:  1 WLR 2118]
[View ICLR summary:  WLR(D) 458]
||Neutral Citation Number:  EWHC 3296 (Admin)
||Case No: CO/1130/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVIS
MR JUSTICE OUSELEY
|| FIONA JAMES
||- and -
||DIRECTOR OF PUBLIC PROSECUTIONS
Tim Owen QC and Shahida Begum (instructed by Hartnells Solicitors) for the Claimant
John McGuiNness QC and Lee Ingham (instructed by Crown Prosecution Service) for the Defendant
Hearing dates: 13th October 2015
HTML VERSION OF APPROVED JUDGMENT
Crown Copyright ©
MR JUSTICE OUSELEY :
- This is an appeal by case stated against the decision of District Judge Greenfield at Westminster Magistrates Court on 14 May 2014, convicting the Appellant of an offence under section 14 (5) of the Public Order Act 1986, the POA 1986.
- She was found guilty of taking part on 23 September 2013 in a public assembly, and knowingly failing to comply with a condition imposed under section 14 of the POA 1986. She received a conditional discharge for two years, was ordered to pay £500 contribution to prosecution costs and a victim surcharge of £15.
- Section 14 (1) and (5) of the POA 1986 provides:
"14 Imposing conditions on public assemblies.
(1)If the senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that—
(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or
(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,
he may give directions imposing on the persons organising or taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such disorder, damage, disruption or intimidation.
(5) A person who takes part in a public assembly and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control."
The facts as found by DJ Greenfield
- The Appellant was part of a group protesting outside the Royal Courts of Justice, RCJ, in the Strand and was part of its organisation. The protestors were crossing and re-crossing the zebra crossing outside the RCJ with the result that road traffic could not proceed along the Strand. The protest had begun on 23 September 2013 at 11am outside the RCJ. Between 13.15 hours and 13.24 hours, the eastbound carriageway was brought to a complete standstill by protesters walking back and forth continually across the pedestrian crossing. Not long afterwards a banner was unfurled across the crossing by the group, again bringing traffic in the Strand to a stop. Chief Inspector Wade left the RCJ to speak to the demonstration leader, Mr Grant, on the crossing. Chief Inspector Wade, as the Senior Police Officer present, imposed an order under section 14 POA 1986 requiring the protest not to take place on the crossing nor to block the footway. This condition would last until 17.00 hours when it would be re-assessed. The District Judge accepted Chief Inspector Wade's view that he reasonably believed the protest on the crossing could result in serious disruption to the life of the community, that he had taken the view that the actions of the protestors in disrupting the traffic were not reasonable, and that the protest should continue on the pavement. The Appellant was not found to be in breach of that first order.
- After 17.00 hours however protestors were again continually walking back and forth on the pedestrian crossing outside the RCJ. Chief Inspector Wade then signed a second notice under section 14 of the POA 1986 at 17:15 hours. This notice stated that it related to a public assembly taking place outside the RCJ. The reason for the direction by him as Senior Officer, was this:
"Having regard to the time or place at which and the circumstances in which this public assembly is being held I reasonably believe that the assembly may result in serious disruption to the life of the community."
- He directed that a condition be imposed on the organisers or participants in the assembly "which appeared to me to be necessary to prevent serious… disruption… as specified above". The location condition was that the assembly was to "locate in the Strand outside the Royal Courts of Justice on the Gateway, not to protest on the pedestrian crossing or obstruct the passage way". The condition as to the maximum duration of the assembly was until 23.15 hours but there was no condition as to the maximum number of people who could assemble. The notice, timed at 17.15 hours, also referred to the offence created by non-compliance with the condition.
- Chief Inspector Wade went to inform the protestors of the order at 17.18 hours, communicating it to the Appellant and her group. She was protesting on the pedestrian crossing. Chief Inspector Wade communicated the order by standing on the highway and using a loudhailer. He said "Ladies and gentleman, you are in breach of section 14 of the Public Order Act, please protest over there, please leave the crossing now". The Appellant was found by the District Judge to have heard the order. Chief Inspector Wade handed Mr Grant a copy of the order which Mr Grant refused to accept.
- The District Judge found that there was no misunderstanding by those including the Appellant, who were on the crossing at 17.18 hours. For a period of at least 7 minutes protestors including the Appellant remained on the crossing; these 7 minutes were sufficient time for the protestors including her to comply with the direction. She knowingly failed to comply with the direction without good reason.
- The District Judge found that "during this time the traffic disruption was significant. At 17.18 hours the protestors were on the crossing chanting, one chanting using a megaphone. The disruption to the life of the community through these actions was significant over this period. Traffic flow being seriously disrupted in The Strand."
- The District Judge accepted Chief Inspector Wade's evidence at paragraph 7.2. of the case stated:
"…that the actions of the demonstrators in walking across the crossing over a length of time brought serious disruption to the traffic flow along the Strand, with a knock on effect of serious disruption to the roads feeding into the Strand. I accepted his evidence that members of the public were aggrieved by the disruption caused by the demonstration and that the police had to prevent confrontations between motorists and the demonstrators by their actions of essentially blocking the Strand by continually walking across the crossing."
- The District Judge also found, or accepted, Chief Inspector Wade's evidence, that the disruption of the flow of traffic outside the RCJ caused serious disruption to the life of the community.
- The District Judge stated two questions for this Court: "(1) Was I right to refuse to rule on a new issue on behalf of Ms James raised during closing submissions by her Counsel? (2) Was I right to rule that the second Section 14 direction issued by Chief Inspector Wade was a lawful direction?" The first was by far the most important for the arguments before us.
- The first question arose in this way. In her closing submissions before the District Judge, Counsel appearing for Ms James, who was neither of the Counsel appearing for her before us, raised what the Judge described as "the issue of proportionality", and did so for the first time. The Judge explained that he took this to be whether the CPS' decision to prosecute Ms James was proportionate, "not necessarily based on "any human rights points as to proportionality". This is a reference to the Human Rights Act 1998, and, I infer, to ECHR Articles 10 (freedom of expression) and 11 (freedom of assembly). He ruled that the proportionality of the CPS decision to prosecute had never been raised before and it was not his role to rule on that issue, notwithstanding Dehal v CPS  EWHC 2154 (Admin), Moses J. It was also too late, applying the Criminal Procedure Rules and their overriding objective, for such an issue to be raised at that stage and without prior warning. No evidential base for the issue had been raised during the case, no questions put to the prosecution witnesses, no notice given and no skeleton argument served.
- The District Judge's ruling was correct, and plainly so. A comment at a directions hearing, which appeared to relate more to whether the offence was too trivial for prosecution, which was not the argument mounted in closing submissions before him, could not amount to compliance with Part 1 of the Criminal Procedure Rules. Applying, as he did, Malcolm v DPP  EWHC 363 (Admin), in line with R (DPP) v Chorley Magistrates Court  EWHC 1795 (Admin), , the District Judge was entirely right. Indeed, viewing the issue on that limited basis there was no real opposition from Mr Owen, whose argument took a rather different shape.
- The District Judge was also right to reach the view he did on the question of whether the proportionality of the CPS' decision to prosecute was for him. It was not. Dehal, which was the foundation for the argument before him, was wrongly decided, and should not be followed. Mr Owen contended that it was rightly decided and should be followed, though his main argument on proportionality concerned whether the District Judge, in deciding whether Ms James was guilty, should have decided whether the action taken by the police was proportionate to the disturbance caused by the demonstration, as their action engaged Articles 10 and 11 ECHR.
- I shall deal with Dehal first. This case concerned an offence under s4A(1) of the POA 1986. A person is guilty of an offence under this section if,
"…with intent to cause person harassment, alarm of distress, he-
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour; or
(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."
- But subsection (3) (b) provides that it is a defence for the accused to prove "that his conduct was reasonable." It was argued for the defendant before the Crown Court, on appeal from the Magistrates, that, having regard to Article 10 ECHR, prosecution was a disproportionate response. Hence the first question in the case stated asked whether "the prosecution of the appellant was a proportionate response to this conduct." Only one of the cases cited to Moses J could be said to offer any support for such a formulation of the issue over the relationship between Article 10 and Public Order Act offences. Norwood v DPP  EWHC 1564 (Admin) at  is clearly contrary to it. It was one of a number of questions raised by the Magistrates in Hammond v DPP [2004 EWHC 69 (Admin) at  which the Divisional Court regarded as "usefully encompassing the considerations which the appeal gives rise to", but in  it was not one of two questions which featured in the Court's distillation of the issues. Those were whether the words were rightly found to be insulting and whether Article 10 should lead to an acquittal, and that was for resolution by consideration of the "reasonableness" defence.
- The true proportionality issue was how, for example, the insulting nature of the words used, and more particularly the reasonableness of the accused's conduct, for the specific statutory defence in those cases, should be judged in the light of Article 10, as Moses J identified in Dehal, . His extempore judgment [9-12], on an urgent vacation matter, however dealt with the need for the trial Court to make a careful analysis of why criminal prosecution was necessary at all. The prosecution was unlawful unless it could be established that such a prosecution was necessary to prevent public disorder, not in my judgment an easy concept to grasp.
- The Dehal approach took root. However, in Bauer and others v DPP  EWHC 634 (Admin),  1 WLR 3617, Moses LJ with Kenneth Parker J re-examined Dehal, in the context of an appeal by way of case stated against the convictions of the appellants for aggravated trespass contrary to s68(1) Criminal Justice and Public Order Act 1994. That offence is committed if a person trespasses on land and does anything there, in relation to any lawful activity which a person is engaged on there, which is intended by him to have the effect of intimidating that person so as to deter him from that activity, or of obstructing or disrupting that activity. There is no "reasonableness" defence to that charge. It was not suggested that s68 was itself a disproportionate interference with Articles 10 or 11 ECHR. Once the judge had concluded that the appellants were guilty of aggravated trespass, and it was agreed that the section was compatible with the ECHR, there was no need for the judge to consider whether the prosecution breached Articles 10 or 11. The state was entitled to prevent aggravated trespass for the purpose of preventing disorder or crime. Moses LJ then turned to Dehal and said this at :
"Whatever the merits of that judgment, it does not seem to me that it should be construed as requiring the prosecution to prove more than conduct which falls within s.68(1). If the prosecution proves that the conduct of a defendant falls within s.68 and that the defendant had the necessary intention, it has nothing additional to prove. It does not have to prove, in addition to the guilt of the defendant, that the prosecution was proportionate. Dehal should be read as no more than an application of Sedley LJ's warning in Redmond-Bate v DPP [DC.23.7.99] that "freedom only to speak inoffensively is not worth having". The warning has no relevance to the instant appeals. Although I must take the blame, Dehal equally was not an authority that the District Judge needed to consider. Once he found that the case against these appellants was proved under s.68(1) that was an end of the matter."
- This is much more than a qualification of Dehal; it is a considered disavowal of Dehal, by its author and with the agreement of Kenneth Parker J, in the way it focused consideration of proportionality on the decision to prosecute, and it explains that all that can be extracted now from Dehal is a much more general point about the interaction between free speech, which may be insulting, and proof of the ingredients of the offence and of the "reasonable conduct" defence.
- I need to make reference to one more case on this point, one which was decided before Bauer but was not cited in it: Abdul v DPP  EWHC 247 (Admin). This was an appeal by case stated against the decision of the District Judge in respect of convictions under s5 of the POA 1986. This is in terms materially similar to s4A in Dehal: it is an offence to use threatening, abusive or insulting words or behaviour or display any writing which is threatening, abusive or insulting within the hearing or sight of a person likely to be caused harassment, alarm or distress. It is again a defence for the accused to prove that his conduct was reasonable. Question 5 in the case stated for the opinion of the Court was whether, in finding "the prosecution of 5 of the 7 defendants to be a proportionate response, taking into account and applying the principles of Article 10.2 of the [ECHR] and the case of [Dehal]", she had applied the correct principles. Article 10.2, and it is the same for Article 11.2, contains qualifications to the right to freedom of expression, permitting restrictions and penalties prescribed by law in various interests including the prevention of disorder or crime.
- The District Judge had considered, as her reference to Dehal suggested, the necessity and proportionality of the prosecution, for the purposes of considering the relationship between Article 10 and the proof of the offence. The defendants had argued that the prosecution was neither necessary nor proportionate. Gross LJ distilled the principles from cases which included Hammond and Dehal; part of his sixth principle was this: "However, even if there is otherwise a prima facie case for contending that an offence has been committed under s5, it is still for the Crown to establish that prosecution is a proportionate response, necessary for the preservation of public order." He took the view that the manner in which the decision to prosecute unfolded did not in any way render the prosecution disproportionate [52iii]. And so he answered question 5, saying that the Judge was entitled to conclude that the prosecution of the Appellants was a proportionate response and that she had applied the correct principles in so deciding.
- Davis J agreed. He added that s5 of the Act was clearly compatible with the ECHR. But whether a prosecution and conviction under s5 was proportionate, had to be assessed on the facts and circumstances of the case, which was to an extent imparted by the "reasonable conduct" defence. But over and above that the prosecution had to establish that prosecution and conviction was justified and proportionate by reference to Article 10, . And in two other paragraphs, he referred to consideration of the proportionality of the prosecution and conviction.
- I am satisfied that Dehal was wrongly decided, perhaps misunderstanding some comments in Hammond, and should no longer be applied or cited; Bauer uprooted it. And it was contrary to Norwood. Dehal based arguments have been addressed to Magistrates and Crown Courts about the proportionality of the decision to prosecute. That has led to the formulation of the questions in appeals by way of case stated. That has led the Court to answer the questions in the form asked; Abdul followed Dehal and the form of the case stated. It did not consider whether the approach in Dehal was correct. But adopting the Dehal approach, though it could not have affected the result, led the reasoning on part of the decision to fall into error. Dehal is referred to in Archbold "Criminal Pleading, Evidence and Practice" 2015 at 29-31 and 29-44 without reference to Bauer. It is referred to in Blackstone "Criminal Practice" 2016 at B11.66 again without reference to Bauer, but in terms which omit the offending part and treat it as deciding that the reasonableness of the accused's conduct was to be judged bearing Article 10 in mind. It did not in fact decide that, though it ought to have done. It would be useful if any continued reference to Dehal, if it has to be referred to, also referred to Bauer and to this case.
- The proportionality, for the purposes of Articles 10 or 11, of a decision to prosecute is simply not an issue for the trial Courts to deal with. It is for the prosecutor to decide whether or not to prosecute; it is not for the trial Court to reach that decision. Its task is to try the case on the evidence admissible in a criminal trial.
- A v R  EWCA Crim 434 is an important decision. The appellant pleaded guilty to doing acts tending to pervert the course of justice, based on her assertion, after withdrawing an allegation of rape against her husband, that the allegation had been false. One ground of appeal attacked the decision to prosecute on the grounds of errors on the part of the prosecution, not made maliciously nor with any identifiable or specific incompetence. At [80-85] the Court, presided over by the Lord Chief Justice, made the following points:
i) There was a growing trend for the exercise of prosecutorial discretion to be challenged by way of judicial review or abuse of process applications, which that judgment sought to arrest at an early stage;
ii) Judicial review would rarely be appropriate because an abuse of process argument could be mounted before the Crown Court, or the Magistrates' Court; if an abuse of process were proved, a stay could be ordered;
iii) A stay for abuse of process itself was a remedy for dishonesty or bad faith, oppression or misconduct; a failure to follow guidance was not of itself sufficient;
iv) It was the function of the trial court to decide whether the accused was guilty or not, and not to appear to take any responsibility for the institution of proceedings; it did not make prosecutorial decisions, which are only made on the basis of information available at the time to prosecutors.
- This is reinforced by R (Barons Pub Co. Ltd) v Staines Magistrates' Court and Runnymede BC v DPP  EWHC 898 (Admin) in the judgment of the Divisional Court presided over by the President of the Queen's Bench Division, [34-36], in relation to Magistrates' Courts: the same applied. The challenge must be made in the criminal proceedings (with a rare qualification) and be made on abuse of process grounds, itself an exceptional remedy.
- In consequence, a contention that a decision to prosecute was disproportionate is not one which the criminal courts can rule on unless it amounts to an abuse of process, itself an exceptional and limited remedy. Nor does that limitation turn it into a matter for judicial review.
- There may be debate whether the abuse of process jurisdiction before a Magistrates' Court extends to dealing with the abuse of process argument that no trial should be held at all because of prosecutorial misconduct, rather than that no fair trial can be held; R v Horseferry Road Magistrates Court ex Parte Bennett  UKHC 10,  1 AC 42. There are later authorities which suggest that it can. But on no possible view could the sort of contention which Ms James wished to pursue here fall within the scope of either limb of abuse of process.
- I also point out that, because a judicial review of the lawfulness of a decision to prosecute depends on what was known by the decision-maker when reaching the decision, it is a singularly inapt tool for judgments by a reviewing court on the deployment of new and contested defence evidence.
- Accordingly, the District Judge was entirely right to refuse to consider the submission that the decision to prosecute was disproportionate.
- However, Mr Owen's submissions were not in reality addressed to that specific issue. It had been used as the inappropriate vehicle for raising a different issue, the issue which was close to those which concerned the Courts in Norwood, Hammond, Dehal and Abdul: in a prosecution for an offence under s14 POA 1986, what is the interaction between the offence alleged and the rights of the accused under Articles 10 and 11 ECHR? How do those rights become part of the consideration at trial?
- The fact that the proportionality of a decision to prosecute in relation to Articles 10 and 11 cannot be raised before trial Courts, otherwise than as an abuse of process argument, does not mean that Articles 10 or 11 cannot play their proper role in the trial.
- For some POA offences, the position has been clear for some time. Norwood and Hammond show that these rights and the qualifications to them, and thus the proportionality of the prohibitions or restraints on expression and assembly, form part of the statutory defence that the accused's conduct was reasonable. That is also what should have been decided in Dehal. It is the point on which the issue in Abdul turned in substance, and where the focus of the legal analysis should have been.
- There are other CJPOA 1994 offences of which Bauer is an example where, as the Court held, once the specific ingredients of the offence have been proved, the conduct of the accused has gone beyond what could be regarded as reasonable conduct in the exercise of ECHR rights. The necessary balance for proportionality is struck by the terms of the offence-creating provision, without more ado.
- The relationship between the offence of obstruction of the highway under s137 of the Highway Act 1980 and common law rights to freedom of speech and assembly is dealt with by interpreting the words "without lawful authority or excuse in any way wilfully obstructs ... free passage" as not prohibiting those acts which involved wilful obstruction of the highway but which were not otherwise of themselves unlawful and which might or might not be reasonable in the circumstances. The focus therefore was on what was reasonable in all the circumstances. Hirst and Agu v Chief Constable of West Yorkshire  85 Cr App R143, Divisional Court.
- The same approach was adopted in the related context of an order under s14A of the POA prohibiting a trespassory assembly on the highway; DPP v Jones  UK HL 5,  2AC 240: the public could use the highway for any reasonable purpose so long as the activity did not obstruct the highway by unreasonably impeding the public's primary right to pass and repass. It was expressed in a variety of ways but that captures the essence of the thinking. Read in that way, the statutory offence of obstructing the highway allowed for consideration of the common law rights of assembly and expression, and of Articles 10 and 11, through a judgment as to reasonable use of the highway, a judgment for the trial court.
- Mr Owen submitted that, in the absence of the specific statutory defence of "reasonable conduct", or of a provision capable of interpretation in the way s137 of the Highways Act has been interpreted, words had to be read into s14 POA 1986 to make it compatible with ECHR rights. The wording of s14(5), the offence creating provision, simply required the Court to consider whether there had been a knowing failure to comply with a direction. It did not permit the defendant to contend that the direction itself had been a disproportionate interference with Article 10 and 11 rights. The defence relating to circumstances beyond the defendant's control could not cover that issue. Something needed to be done to bring s14(5) into line with the approach to other public order offences involving freedom of speech and assembly. Mr Owen suggested that the words "except insofar as a conviction would be disproportionate by reference to Article 10 or 11 of the ECHR" should be read into s14(5). He likened this to R v Waya  UKSC 51,  1 AC 294, in which a provision of the Proceeds of Crime Act 2002 dealing with confiscation orders was interpreted, by virtue of s3 Human Rights Act 1998, as containing words disapplying the power to make an order where to do so would be disproportionate with property rights under Article 1 of Protocol 1 to the ECHR.
- To my mind, the starting point is the power to give a direction in s14(1). It is plain that it requires the senior officer to hold the necessary belief that a public assembly may result in serious public disorder, and to have reasonable grounds for that belief. If, upon challenge by a person accused of an offence under s14(5), the officer cannot prove that he actually held the necessary belief and did so upon reasonable grounds, his direction would be unlawful. It is necessarily implicit in s14(5) that the direction containing the conditions must be lawful. Acquittal would follow, if it were not. As with Bauer, no other words are necessary to imply proportionality at that stage. Satisfaction of the statutory test is proof of the proportionality of the making of a direction.
- If the officer holds that belief on reasonable grounds, the conditions imposed by the direction must be such "as appear to him necessary to prevent such disorder". Again, that "necessity" must genuinely appear to him. If no such necessity had appeared to him, the condition would not be lawful; non-compliance with it would not be an offence. If that necessity had appeared, I have some difficulty envisaging the circumstances in which the qualifications to Article 10 and 11 would not also inevitably be satisfied. Rather as in Bauer, proof of the ingredients of the offence itself would demonstrate the proportionality of the condition, non-compliance with which underlies the offence. Conviction would require proof of a reasonable belief actually held by the Senior Officer that a public assembly may result in serious disorder, so he had power to make a lawful direction, the purpose of which is to impose conditions on a public assembly; and conviction would then also require proof that it appeared to him that such a condition was necessary to prevent the serious public disorder he reasonably believed may exist.
- It would only be if the officer reasonably believed that serious disorder might result from an assembly so that the direction was lawful, and genuinely but unreasonably thought that a particular condition was necessary to prevent the serious disorder, that an issue related to the proportionality of the condition could arise. A condition might be wholly out of proportion to the problem to be solved, but it would still be necessary for the officer to have believed that it was necessary before any further issue could arise, and the disproportion of condition to circumstance as known would be relevant to the genuineness of the belief that it was necessary.
- However, it is clear that a condition imposed under s14(1) must be a lawful condition, and in this section that must import that it must reasonably appear to be necessary to prevent serious disorder. This reflects the language of the first part of s14 (1). I do not think that Parliament intended to draw the distinction between the two aspects of s14 -directions and conditions- which the omission of the word "reasonably" before "appear to him necessary" in the last part of s14 (1) could suggest. Rather it assumed that the requirement for reasonableness would carry over to the appearance of necessity. So, in my judgment, for a s14 (5) offence, the proportionality of direction and condition for the purposes of Articles 10 and 11 ECHR can be raised through testing of the reasonableness of the beliefs which necessarily underpin each.
- This is not the argument as put to the District Judge. But he accepted the evidence of Chief Inspector Wade as to the seriously disruptive effect on traffic in the Strand which the assembly was having, through blocking the pedestrian crossing. The protestors were only required to go to the pavement, and not to block it. It would have been irrational to conclude that the direction and condition were unreasonable.
- For those reasons, I would answer question 1 "yes", even rephrased to cover Mr Owen's submissions.
- The second question, although phrased to deal with some of the issues already discussed, and also to be answered "yes" as drafted, was really intended to raise a different issue, peculiar to the evidence in this case., relating to the terms or communication of the direction and conditions. This issue had taken a number of forms, including that the Chief Inspector ought to have read out the whole of the second s14 notice. That, rightly, was not pursued. No such formalistic requirement is necessary. The question is whether sufficient has been communicated for the accused to know what to do and what not to do. On the facts, there could be no issue about that.
- Mr Owen's point was what Chief Inspector Wade said at 17.18 meant that he was saying that the demonstrators were in breach of the direction before it had even been communicated to the demonstrators on the crossing.
- There is nothing at all in this point, and it was scarcely pressed. Whether or not they were strictly in breach of the direction with its conditions from 17.15 onwards, Chief Inspector Wade was communicating the fact of a direction with conditions, which prohibited what the protestors, including Ms James, were now doing. No offence arose under s14(5) until the requirement to leave the crossing had been communicated, and non-compliance had become knowing, in circumstances within the control of the accused. I would answer question 2 "Yes".
- Accordingly I would answer each question "Yes" and dismiss this appeal.
- I emphasise that an appeal by case stated is not the vehicle to ventilate factual issues. That is for appeal to the Crown Court. The only factual issues which can be raised by case stated are whether there was evidence to support an identified finding of fact or whether a finding of fact was irrational.
Lord Justice Davis:
- I agree with the judgment of Ouseley J. I add some observations of my own, not least because I was one of the judges in Abdul.
- Section 14(9) of the Public Order Act 1986 has to be read in the context of Articles 10 and 11 of the Convention, which confer qualified rights. The justification in any particular situation for the qualification of those rights and the proportionality of the restrictions on freedom of speech and of assembly imposed are capable of being accommodated by the express words of the relevant statute or measure as applied to the facts of the particular case. By way of example, s.4A(1) of the Public Order Act 1968 (the relevant provision in Dehal) and s.5 of the Public Order Act 1986 (the relevant provision in Abdul) satisfy such requirement by permitting reasonableness to be raised as a defence. As stated in DPP v Percy  EWHC Admin 1125 at paragraph 25 in the context of a case on s.5 the statutory provisions contain the necessary balance between the rights of freedom of expression and assembly and the right of others not to be insulted: thus those rights are accommodated within the statutory language. In the present case, the required consideration of reasonableness is imported into s.14 of the Public Order Act 1986 for the reasons given by Ouseley J.
- It is a pity that this approach - which provides a workable approach for magistrates – became somewhat muddied by the further approach indicated in Dehal, and followed in Abdul. Those cases in effect gave a green light to courts, in such cases, being additionally required to assess the proportionality of the decision to prosecute itself.
- It is a pity for a number of reasons.
i) First, the necessary element of proportionality and the need for its consideration are to be found, in cases such as this one, in the provisions of the statute relating to the offence itself and/or to the available defences, as applied to the facts.
ii) Second, it potentially makes the task of the magistrates immeasurably more complex. That is not desirable in a situation where magistrates may already sometimes have quite difficult decisions to make, in balancing the importance of the rights of freedom of expression and assembly against the rights of others, and in making their assessment of reasonableness accordingly by reference to the facts of the particular case.
iii) Third, it has the potential for converting a Magistrates Court in effect into a court exercising powers of judicial review: something the Magistrates Court is neither equipped to do nor, indeed, empowered to do: see the Barons Pub Company case.
- In my view, the court in Bauer was correct not to follow or apply the decision in Dehal on this point. Whilst Moses LJ did say that, in effect, his own previous decision in Dehal was a decision to be explained on its own facts – and certainly, on its facts, the decision can readily be supported – it seems to me that in reality Moses LJ in Bauer was recanting from the legal approach previously indicated by him as appropriate in Dehal. In my view, he was right to do so for the reasons given by him in paragraph 40 of his judgment in Bauer (with which Kenneth Parker J agreed); as well as for the further reasons given by Ouseley J in his judgment in the present case.
- It follows that I myself recant from what in effect was an unduly deferential and insufficiently critical endorsement in Abdul of this aspect of the Dehal approach: albeit that approach was in response to one of the specific forms of question posed in the case stated in Abdul. (It may perhaps also be added that it had not been troublesome to do so in that particular case of Abdul, given the careful and cogent appraisal of the position, on that basis, by the District Judge at first instance.) But be that as it may, the appropriate approach is henceforth to be taken as that set out in Bauer. Accordingly, in cases such as this the prosecution do not have to prove, in addition to the facts establishing the guilt of the defendant, the proportionality of the decision to prosecute itself.
- In the 2015 edition of Archbold at paragraph 29-44 it is suggested that the Dehal approach accords with the approach of the European Court of Human Rights in Gul v Turkey  52 EHRR 38. As I read it, however, the latter decision was one on its own facts, by no means requiring an endorsement of a general proposition that the proportionality of a decision to prosecute, as well as proof of guilt, must always be established.
- That does not mean that proportionality has no part to play in prosecution decisions in cases of this kind. It does. This is because of the sensible provisions contained in the Crown Prosecution Service Code of Practice relating to potential prosecutions in public protest cases. The guidance given requires prosecutors in such cases to focus, among other things, on (a) whether prosecution is necessary and (b) whether prosecution is proportionate. The point remains that that is a matter for the decision of the Crown Prosecution Service, whose function it is to make such decisions. The Magistrates Court is not itself thereafter required to review such a decision.
- It further follows that it would be improper for defendants, under the guise of an abuse of process application made to the Magistrates' Court, to advance arguments which are in truth simply directed at considerations of the proportionality of the decision to prosecute. Applications for a stay on the grounds of abuse of process are to be circumscribed and orders of stay are, when made, granted only exceptionally. Applications for a stay on the ground of abuse of process must not themselves be permitted to become an abuse.
- Overall I can see no error either on the approach or in the conclusion of the District Judge in this case. Accordingly, I too would answer the questions posed on the affirmative and would dismiss the appeal.
Copyright Policy |
Donate to BAILII