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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Campaign Against Antisemitism v Director of Public Prosecutions [2019] EWHC 9 (Admin) (09 January 2019) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2019/9.html Cite as: [2019] EWHC 9 (Admin) |
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QUEEN'S BENCH DIVISIONADMINISTRATIVE
COURT
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MR JUSTICE NICOL
____________________
CAMPAIGN AGAINST ANTISEMITISM |
Claimant |
|
- and – |
||
DIRECTOR OF PUBLIC PROSECUTIONS |
Respondent |
|
- and – |
||
NAZIM HUSSAIN ALI |
Interested Party |
____________________
John McGuinness QC (instructed by CPS Appeals and Review Unit) for the Respondent
The Interested Party neither appearing nor being represented
Hearing date: 18 December 2018
____________________
Crown Copyright ©
Lord Justice Hickinbottom :
Introduction
The Law: Freedom of Expression and its Limits
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers….
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions and 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."
"The court is faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly construed" (Sunday Times v United Kingdom (1979) 2 EHRR 245; (1979) ECHR 1 at [65]).
"A person is guilty of an offence if he… uses threatening, abusive or insulting words or behaviour, or disorderly behaviour…".
Section 6(4) provided:
"A person is guilty of an offence under section 5 only if he intends his words or behaviour… to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly".
"(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. [As Davis J (as he then was) added at [57]: '[F]reedom of speech extends to protect activity that others may find shocking, disturbing or offensive."]
(iii) The justification for interference with the right to freedom of expression must be convincingly established. Accordingly, while article 10 does not confer an unqualified right to freedom of expression, the restrictions contained in article 10(2) are to be narrowly construed.
(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.
(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; sometimes 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) …
(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 (Brutus v Cozens… at page 862 per Lord Reid)…".
Those principles are uncontentious, and I gratefully adopt them.
The Law: Prosecutorial Decisions
"Where criminal proceedings are instituted in circumstances in which the [DPP] is not under a duty to take over their conduct, he may nevertheless do so at any stage".
"Where, at any time during the preliminary stages of the proceedings, the [DPP] gives notice under this section to the designated officer for the court that he does not want the proceedings to continue, they shall be discontinued with effect from the giving of that notice…".
i) A prosecutorial decision is amenable to challenge by judicial review but only on conventional public law grounds, e.g. if the policy upon which the decision was based was unlawful or if the decision-maker did not follow relevant lawful policy or if the decision is irrational in the sense that it was a decision not reasonably open to the decision-maker on the available material (R v Director of Public Prosecutions ex parte C [1995] 1 Cr App R 136 at page 141C-E; L at [4]; and R (Purvis) v Director of Public Prosecutions [2018] EWHC
1844 especially at [75]-[81]). "Irrationality", as used in C and L, includes the raft of conventional Wednesbury grounds for public law intervention, including where the decision-maker incorrectly applies the law (e.g. R (F) v Director of Public Prosecutions [2013]
EWHC
945
(
Admin))
or where his approach is wrong as a matter of law (R (B) v Director of Public Prosecutions [2009]
EWHC
106 (
Admin);
[2009] 1 WLR 2072).
ii) If the decision-maker asks the right questions and informs himself properly, challenges to prosecutorial decisions will succeed "only in very rare cases" or "only in exceptionally rare circumstances" (L at [5] and the cases there referred to, and at [7]; see also Monica at [44], "rare indeed"). This is because Parliament has given the relevant function to the DPP as an independent decision-maker with particular experience and expertise in making such decisions which involve the exercise of judgment in relation to (e.g.) how disputed evidence is likely to be received at trial and whether a prosecution is in the public interest (R v Director of Public Prosecutions ex parte Manning and Melbourne [2000] EWHC
342 (
Admin);
[2001] QB 330 at [23] per Lord Bingham of Cornhill LCJ, citing C; and R (Corner House Research) v Serious Fraud Office [20018] UKHL 60; [2009] 1 AC 756 at [30]-[32] per Lord Bingham, cited with approval in Monica at [45]). Consequently, prosecutorial decision-makers have "a significant margin of discretion" (L at [43]; and Monica at [46(2)]). The result is that this court, whilst intervening if the decision is irrational or otherwise unlawful, has adopted a "very strict self-denying ordinance" (L at [7]).
iii) However, as Mr Grodzinski submitted, the margin allowed to the decision-maker (and, hence, the deference this court gives to his decision) depends upon the issues with which he has to grapple and the circumstances of the case. The issues in this context often involve disputed evidence of primary fact, where the decision-maker's experience and expertise in considering how that evidence will be received at trial and predicting the verdict at trial will be a particularly powerful factor; and this court will be slow to hold that the decision-maker's assessment is irrational. Similarly, where the issue involves an assessment of the public interest. However, if the issue is essentially one of law, the decision-maker's experience and expertise are of less force, and this court will more readily be prepared to find that his conclusion was wrong in law.
iv) Whilst the exercise of the court's power to intervene will always be exceptional, because a decision not to prosecute is final subject only to judicial review, the exercise of the court's powers will be less rare in those circumstances than in the case of a decision to prosecute because the defendant is then free to challenge the prosecutor's case in the criminal court (B at [52]-[53] per Toulson LJ).
v) Prosecutorial "decision letters should be read in a broad and common-sense way, without being subjected to excessive or overly punctilious textual analysis" (Monica at [46(3)]).
"Prosecutors must only start or continue a prosecution when the case has passed both stages of the Full Code Test."
The Full Code Test is set out in Section 4 of the Code, and comprises two stages: the initial or evidential stage, and the second or public interest stage.
"Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be."
"The finding that there is a realistic prospect of conviction is based on the prosecutor's objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which he or she might rely. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty."
"A private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met."
Therefore, if, upon review of a private prosecution, the DPP does not consider that it is probable (i.e. more likely than not) that a jury or magistrate(s) will convict of the charge alleged, his policy requires the prosecution to be taken over and discontinued. If the evidential test is satisfied, then the DPP must go on to consider whether a prosecution is in the public interest. The Full Code Test is met only if both limbs are satisfied.
The Facts
The Proceedings
"On the 18th day of June 2017, at the Al Quds Day procession in central London, Nazim Hussain ALI used threatening or abusive words or behaviour, or disorderly behaviour, within the hearing or sight of a person likely to be caused harassment, alarm or distress, contrary to section 5(1) of the Public Order Act 1986."
i) those in which Mr Ali blamed Zionists/Zionist corporations for the murder of those who died in the Grenfell fire ("the Grenfell murder accusations");
ii) those in which Mr Ali accused Rabbis on the Board of Deputies of having "blood on their hands" and agreeing with the killing of British soldiers ("the Board of Deputies accusations"); and
iii) those in which Mr Ali referred to Zionists and Israelis as "terrorists", "murderers" and, particularly, "baby killers" ("the baby killer accusations")
In respect of each of these, Mr Grodzinski submitted that the conclusion of the Decision-Maker that the statements were not "abusive" within the context of section 5 was irrational.
i) Given that the context in which the words were said is of first importance and a primary justification for invoking the criminal law is to prevent a threat to public order (see Abdul at [49(iv)] quoted at paragraph 11 above), it is worth briefly saying something about the circumstances in which the words were said.
I have briefly described the rally. I understand that it has been an annual event for nearly 40 years, and it generally passes off peacefully although not without a counter-protest. It is clear from the transcript that, at the 2017 rally with which this claim is concerned, there were counter-protesters from both pro-Israel and other groups, who engaged in counter-chanting. At least one individual made a succession of offensive remarks to those in the rally, repeatedly shouting and suggesting that they were paedophiles (pages 59-60). The last several pages of the transcript comprise almost exclusively counter-protesters chanting slogans including "Terrorists off our streets" and "Shame, shame, shame on you". However, despite the opposing groups on the street at the time of the rally, there was no suggestion that there was in fact any risk of public disorder.
ii) The Decision-Maker concluded that nothing Mr Ali said was threatening, either explicitly or implicitly; and Mr Grodzinski does not seek to challenge that finding. He submits that the words of which complaint is made were, in all the circumstances, "abusive" within the scope of section 5 of the 1986 Act.
iii) In the Decision Letter, the Decision-Maker correctly set out and purported to apply the evidential stage test in appropriate terms, namely that "an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged"; and he expressly referred to article 10. However, Mr Grodzinski submits that, in applying that test, the Decision-Maker came to a conclusion that was irrational, i.e. a conclusion to which no decision-maker in his position could reasonably have come. He was unflinchingly clear in his submissions: irrationality was the only basis of the challenge.
The Grenfell Murder Accusations
"Ali: Brother and sisters, because we are humanitarians, because we love peace, because we love justice, this demonstration [inaudible] for justice, for Grenfell, the victims of corporate murders, the victims of Tory policies, the victims of policies of the Tory council and the Tory government, of Theresa May. Shame on you, Theresa May!".
This was the first reference to Grenfell by name; although, at the very start of his address, Mr Ali referred to the Prime Minister as someone "who has blood on her hands, if you know what happened last week", which was a clear reference to the Grenfell fire.
"Ali: As we know, in Grenfell, many innocents were murdered by Theresa May's cronies many of which are supporters of Zionist ideology. Let us not forget that. Some of the biggest corporations who are supporting the Conservative Party are Zionists. They are responsible for the murder of the people in Grenfell, in those towers in Grenfell. The Zionist supporters of the Tory Party. Free, free!".
There are then further chants of "Palestine! Free, free!".
"Ali: So, what you will see, you will see this leaflet, 'Justice for Grenfell'. This leaflet on Oxford Street, will be doing a minute's silence for the victims, for those poor souls who perished in that fire, caused by corporate Tory greed.
Individual: ISIS! ISIS!
Ali: [Inaudible]. So, we are going to raise this leaflet, which you should all be getting. If you haven't got one, ask one of the stewards. ?justiceforgrenfell. These people wouldn't know what justice is, because it's their supporters who are supporting the Tory Party. That's who they are. It is the Zionists who give money to the Zionists. It is the Zionists who give money to the Tory Party to kill people in high-rise blocks."
"In relation to the Grenfell fire, Mr Ali stated that (1) it was murder (2) it was the fault of the Conservative Party, including Theresa May (3) it was the fault of the Zionists who fund the Tory party. However, Mr Ali did offer some qualifications to these claims. Mr Ali described the victims of the Grenfell fire as 'the victims of the Tory policies, the victims of the policies of the Tory council and the Tory Government'. I infer that Mr Ali is alluding to the policy of austerity as a cause of the fire. This is strident criticism of the Government, Mr Ali also described the victims as 'those poor souls who perished in that fire, caused by corporate Tory greed.' Again, another implied reference to the policy of austerity. I do not consider these comments are 'abusive' so as to bring them within the ambit of the criminal law."
The Board of Deputies Accusations
"Careful, careful, careful, of those Rabbis who belong to the Board of Deputies, who've got blood on their hands, who agree with the killing of British soldiers. Do not allow them in your centres."
"Be careful what those Rabbis who are Zionists try to tell you [inaudible]".
"In relation to the comments regarding rabbis and the Board of Deputies, it appears that Mr Ali believes that the British Board of Deputies, which includes rabbis, does not do enough to condemn what he believes are disproportionate acts of violence against Palestinians by the State of Israel. In that sense Mr Ali believes they have 'blood on their hands'. Mr Ali is entitled to express that point of view albeit expressed in robust terms. A number of other speakers expressed very similar views…, one even describing some counter-protesters as apologists for murder by the State of Israel. I do not consider these comments are 'abusive' pursuant to s5."
"The CPS does not accept this submission. At page 2 [of the transcript] Mr Ali made a specific reference to the bombing of the King David Hotel before going on to make comments about 'those Rabbis who belong to the Board of Deputies, who've blood on their hands, who agree with the killing of British soldiers'. It would be artificial and illogical to ignore this reference. Applying Abdul, those words have to be viewed in the context of anti-Zionist rally against the state of Israel. There is no dispute that there were acts by Zionists in the British mandate of Palestine in which British soldiers were killed, including the bombing of the King David Hotel. The CPS view is that Mr Ali drew the tenuous conclusion that support for the existence of Israel necessarily correlates with support for all the actions which led to the creation of Israel. It is not true to say that anyone who believes the Jewish people deserve a homeland must support acts like the bombing of the King David Hotel. Nevertheless, it is not criminally 'abusive'. In the context of the unused material videos… and the transcript… it appears that Mr Ali believes that the British Board of Deputies does not do enough to condemn what he believes are disproportionate acts of violence against Palestinians by the State of Israel. In that sense Mr Ali believes they have 'blood on their hands'. He is not accusing them of literally having blood on their hands. Mr Ali is entitled to express that point of view. A number of other speakers at the protest expressed very similar views…, with one even describing the counter-protesters as apologists for murder by the state of Israel. The [CAA] did not seek to prosecute those individuals, which suggests that context is a relevant consideration."
i) The Decision Letter itself made no mention of the King David Hotel bombing: this is ex post facto reasoning and thus to be treated with significant caution (R (Nash) v Chelsea College of Art and Design [2001] EWHC
(
Admin)
538 at [24]; and Caroopen v Secretary of State for the Home Department [2016] EWCA Civ 1307 at [30] per Underhill LJ).
ii) In any event, shortly after the 1946 bombing, the Board of Deputies issued a public statement unequivocally condemning the bombing (see paragraph 4 of the Second Statement of Marie van der Zyl dated 7 August 2018: Ms van der Zyl is the current President of the Board of Deputies); so that new reasoning contains a fundamental error of fact and is thus flawed as a matter of law (E v Secretary of State for the Home Department Home Secretary [2004] EWCA Civ 49; [2009] QB 1044).
iii) Insofar as the Decision Letter reasoning is concerned, he submitted that that too contains a fundamental factual defect, because the Board of Deputies is a secular body and the current Board does not include any Rabbis (see paragraph 5 of the First Statement of Ms van der Zyl dated 9
June 2018)
The Baby Killer Accusation
Passage 1: Page 67: "We'll be going past the BBC. We all know what the B stands for in BBC. [It was assumed before us that he meant that it stood for "biased"]. It's a shame that they never report on the murder of Palestinians. It's a shame that they never report on the killing of innocent men, women and children. The Zionists are known to go to dinner with the heads of the BBC to make sure they don't give us any exposure to the innocent victims of Zionism terrorism."
Passage 2: Page 69: "… [W]e know what these Zionist baby killers are like. Go kill some babies. Go do your normal occupation."
Passage 3: Page 76: "We will not be scared of the Zionist murderers. We will not be scared of Israeli murderers, we will not be scared of Israeli killers, Israeli baby killers."
Passage 4: Page95: "Andrew Dismore, the MP is addressing the Zionist crowd, he is another pro baby killer, he likes to kill children and support the killing of children."
"I have considered Mr Ali's claims that… (a) Tories and Zionists were to blame for the Grenfell Tower fire…. (b) the deaths in the fire were murder by Tories and Zionists… (c) that Zionists control the media output of the BBC… and (d) that Andrew Dismore MP 'likes to kill children'…. However, I do not consider these comments to be 'abusive' pursuant to s5."
i) The Decision-Maker here was not responding to any assertion made by the CAA – only to his own apparent provisional assessment that these phrases were potentially within section 5 when they were not being relied upon in the private prosecution that the DPP was considering take over and discontinuance. He cannot be criticised for not dealing with them at length. It is noteworthy that the CAA did not seek to found the charge upon any of these statements in the private prosecution: they have only relied upon them for the first time in this claim.
ii) It cannot be argued that Passages 1 and 4 were abusive within the scope of section 5. Mr Grodzinski did not actively seek to argue to the contrary.
iii) Passage 2 is clearly the most offensive, and appears to have been aimed at particular individuals within the crowd. It was therefore potentially inflammatory. However, (a) it seems that Mr Ali was not the first person to refer to baby killers – whilst Mr Ali referred to Zionists "[celebrating] the murder of children, the murder of women, the taking of homes, the bulldozing of homes, and then the destruction of a whole civilisation" (page 2, see also pages 10, 12 and 13), the first reference to the killing of babies apparently came from, not Mr Ali, but another individual, apparently a counter-protester who shouted to those in the rally: "You kill babies!" (page 13); and, more importantly, (b) there is no suggestion here that there was in fact any risk of public disorder.
iv) Abdul is clearly distinguishable. As Gross LJ said (at [52(i)]), "context is of the first importance". In that case, the circumstances in which the term "baby killers" was used were very different. Notably, in Abdul, the District Judge found that the words used were undoubtedly inflammatory and, as a result of their use, there was a "very real threat" to public order. The families and well-wishers of the soldiers were upset and offended and "trouble arose" (see [61]). In that case, this court merely held that the District Judge did not err in concluding that the words used were both insulting and abusive. In this case, as I have indicated, there is no suggestion that there was a real risk of public disorder. Whilst Abdul includes a helpful summary of the legal principles, as is so often the case, the differences between the facts and contexts of two cases are too great for any meaningful lesson to be taken from them. In my view, the Decision-Maker was entitled to conclude that a prosecution on the basis of the statements in Passages 2 and 3 (as well as Passages 1 and 4) would not be more likely than not to conclude in a conviction.
Conclusion
Mr Justice Nicol: