The compatibility of criminal liability with freedom of expression

Criminal Law Review

Volumn , Issue NOV., 2007, Pages 866-881

  Turenne, Sophie ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

Author keywords

Abuse of rights; Compatibility; Criminal liability; Freedom of expression; Justification; Prosecutions; Public order offences; Punishment

Indexed keywords

EID: 35949001663     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (89)

1. e.g. using threatening or insulting behaviour with the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, contrary to the Public Order Act 1986 s. 5. For a fuller list of applicable offences, see D. Feldman, Civil Liberties and Human Rights in England and Wales, 2nd edn, (2002), Ch. 18 at pp. 1041-1060
2. and see also the subsequent aggravated trespass offence in the Serious Organised Crime and Police Act 2005 s.125.
3. In many such cases, Art. 11 (freedom of assembly) is engaged too, if the protestor is accompanied by others and the criminal offence relates to his participation with that group. But we shall discuss only justifications for infringing the freedom of expression in this article. We do this for the sake of simplicity, because it does not seem to advantage the protestor to show that both of his Arts 10 and 11 rights are engaged, rather than that just one of them is engaged, because the justificatory standard for state interference with these qualified rights is the same in each case. As H. Fenwick writes "the [European Court] tends to view freedom of assembly simply as an aspect of freedom of expression": "The Right to Protest, the Human Rights Act and the Margin of Appreciation" (1999) 62 M.L.R. 491 at p.496 and there is no distinct jurisprudence between the two articles for present purposes.
4. See, e.g the offences in the Malicious Communications Act 1988 s.1 and the Postal Services Act 2000 s.85.
5. The European Court of Human Rights takes this mean to mean "absolutely necessary" and has also added the words "and proportionate" (Sunday Times v United Kingdom (1979-1980) 2 E.H.R.R. 245 at 277-278), and nowadays it is common to see the latter words cited as though they were part of the text.
6. The High Court in Blum v DPP [2006] EWHC 3209 (Admin) seemed to accept this, although in that case (along with the other authorities there referred to) only the conviction (and not the arrest) of the defendant was in issue.
7. Generally, it seems that abuse of process is unavailable where the only complaint is that the process was initiated by an unlawful arrest: see R. v Horseferry Road Magistrates Court Ex p. Bennett [1993] 3 All E.R. 138 at 164,
8. per Lord Lowry. There is no reason why the result should be different when a human right is engaged. Instead, the arrest which is unnecessary or disproportionate should be actionable in the civil courts where it might either be treated as an ordinary false imprisonment or as an unlawful act under the Human Rights Act 1998, s.6(1) which may give rise to any of the remedies in s.8. In Laporte, fn. 11 below, a declaration of the unlawfulness of the arrest was thought to be sufficient.
9. 2000) H.R.L.R. 249 QBD at [13].
10. Per Lord Hewart C.J. in Duncan v Jones [1936] 1 K.B. 218 at 222
11. See too Arzte für Leben v Austria (1988) 13 E.H.R.R. 204 which asserts that police may owe a positive obligation to take reasonable steps to safeguard peaceful protestors from foreseeable violence.
12. That is to say, that the more intense scrutiny given to exercises of discretion which interfere with convention rights ought to apply: see R. (Daly) v Secretary of State for the Home Department [2001] 2 A.C. 532. Arguably, such a standard ought to apply to all arrests since Art. 5 is engaged in these cases, but in the ordinary case the only question is whether it is necessary to arrest in order to bring the defendant before a competent court (ECHR Art.5(1)(c)). By contrast, when Art.10 is engaged too (as it would be when a protestor is arrested whilst trying to demonstrate), then an extra element (whether the arrest is necessary for the prevention of crime or maintenance of public order, etc.) is required.
13. 2006 UKHL 55.
14. Apparently in reliance on Moss v McLachlan [1985] I.R.L.R. 76.
15. A. (Laporte) v Chief Constable of Gloucestershire, per Lord Bingham at [55],
16. per Lord Brown at [114]
17. See p.879 below.
18. See pp.873-876 below.
19. See pp.876-879 below.
20. See pp.879-881 below.
21. Hirst and Agu v Chief Constable of West Yorkshire (1987) 85 Cr. App. R. 143;
22. Westminster City Council v Haw [2002] EWHC 2073 (QB).
23. Highways Act 1980 s.137.
24. Human Rights Act 1998 s.2(1).
25. But regrettably the question is sometimes sidelined. In Kirk [2006] EWCA Crim 725, die accused sent explicit pictures of vivisection to persons whom he considered associated with animal experimentation and was charged with sending indecent or obscene packages through the post (contrary to the Postal Services Act 2000 s.85). But tile court simply said that the offence in s.85 was itself compatible with Art. 10(2), without specifying exactly which interest was being served. The importance of this is explored later.
26. 2007 EWHC 237 (Admin) at [20]-[22].
27. However, it was also held that the offence could be said to be "prescribed" for protecting the "rights of others", which justification was also held to apply to these facts, as we shall later discuss, see further pp.874-875 below.
28. See pp.876-879 below.
29. J. Rogers, "Prosecutors, Courts and Conduct of the Accused which Engages a Qualified Human Right" (2005) 58 C.L.P. 101 at p.110.
30. Human Rights Act 1998 s.3(1).
31. Brutus v Cozens [1973] A.C. 854.
32. Human Rights Act 1998 s.6(1).
33. Hammond v DPP [2004] EWHC 69.
34. Much depends, perhaps, on the pressure exerted upon Parliament at the time of the passing of the legislation. See the wide "freedom of expression" defence which was belatedly inserted in s.29J of the Public Order Act 1986 by s.1 of the Racial and Religious Hatred Act 2006, which significantly waters down the new offence of stirring religious hatred and which was accepted after previous definitions of the offence were rejected in the House of Lords.
35. The leading case is now Ghaidan v Godin-Mendoza [2004] UKHL 30.
36. See also Taylor [2002] 1 Cr. App. R. 37 at [20], [31].
37. 2006 EWHC 3209 (Admin). For further discussion, see pp.879-881 below.
38. Nor is it open to the prosecutor not to enforce the law simply because it is arguably incompatible with the ECHR. Indeed he is in theory duty bound to apply the law as he finds it: see the discussion of Laws L.J. in R. v DPP Exp. Kebilene [1999] 3 W.L.R. 175 at 196-197.
39. See Smedleys v Breed [1974] 2 All E.R. 21 at 33,
40. per Lord Diplock and M. Wasik, "The Grant of an Absolute Discharge" (1985) 5 O.J.L.S. 211.
41. Human Rights Act 1998 s.4(2).
42. Blum v DPP, fn. 5 above, at [22].
43. 2003 UKHL 38 at [40].
44. See the opinion of Lord Hobhouse in R. (Pretty) v DPP [2001] UKHL 61 at [121].
45. J. Rogers, fn.25 above, at pp.116-118.
46. 2006 1 W.L.R. 2052 at [46].
47. cf. the obiter observations in Attorney-General's Reference (No.2 of 2001), Re [2003] UKHL 68.
48. See D. Feldman, Civil Liberties and Human Rights in England and Wales, 2nd edn (2002) at pp.753-755,
49. and the observation of the protection offered to political speech in Connolly v DPP [2007] EWHC 237 (Admin) at [14].
50. Steel v United Kingdom (1999) 28 E.H.R.R. 603 at [92].
51. It was famously said in Handyside v United Kingdom (1979-1980) 1 E.H.R.R. 737 at [49] that Art. 10(1) "is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive but also to those that offend, shock or disturb the state or any sector of the population".
52. See also Müller v Switzerland (1991) 13 E.H.R.R. 212.
53. "Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at die destruction of any of the rights and freedom set forth herein or at their limitation to a greater extent than is provided for in the Convention."
54. Norwood v United Kingdom (2004) 40 E.H.R.R. SE 11.
55. D. Feldman, fn.43 above, at pp.768-769 writes that the word "aim" seems to have a subjective meaning, but also that an objective test which prioritises the likely consequences of the conduct would be preferable. It is interesting to notice, however, that the government eventually accepted that the new offence of stirring racial or religious hatred should be constrained by an element of intention by the doer (see Public Order Act 1986 s.29B).
56. Chassagnou v France (1999) 29 E.H.R.R. 615 at [133].
57. See the opinion of Lord Scott in R. (ProLife Alliance) v BBC [2003] UKHL 23 at [91], and of Lord Walker at [123].
58. R. (ProLife Alliance) v BBC at [28].
59. See Jersild v Denmark (1994) 19 E.H.R.R. 1, where a conviction of a broadcaster who was trying to show the true level of racism in society by showing recorded views of racist youths was held to violate Art. 10 through lack of proportionality.
60. Connolly v DPP [2007] EWHC 237 (Admin) at [29]-[31].
61. See also Janowski v Poland (1999) App. No. 25716/94, (2000) 29 E.H.R.R. 705;
62. B.H.R.C. 672, ECHR, where the ECtHR accepted that it is easier to justify the punishment of insulting behaviour towards civil servants than it is to justify punishing die same conduct towards politicians.
63. As the High Court observed in Percy v DPP [2001] EWHC Admin 1125 at [28], conduct which could distress some people might be expected to be "water off a duck's back" to another.
64. Norwood v DPP [2003] EWHC 1564.
65. See further, A. Geddis, "Free Speech Martyrs or Unreasonable Threats to Social Peace? - 'Insulting' Expression and section 5 of the Public Order Act 1986" [2004] P.L. 853.
66. 2006 UKHL 40 at [14] where Lord Bingham said nothing more than "Effect must also be given to Article 17 of the Convention".
67. 2004 EWHC 69.
68. Rogers seeks to suggest that interferences with convention rights by punishment are typically justified (only) in consequential terms, fn.25 above, at pp. 104-106: but this may be doubted. Surely other theories of punishment might also be pursued, and the text anticipates a communitarian theory of punishment, on which, see R. Duff, Punishment, Communication and Community (Oxford University Press, 2001), Ch.3.
69. For further discussion, see Rogers, fn.25 above, at pp. 107-110.
70. 2001 EWHC Admin 1125.
71. It might also have been questioned whether the soldiers had any "right" not to be offended for die purposes of Art. 10(2), since they would seem to people "working in a specialised field" rather than the "ordinary persons" who are supposed to possess this right. See Connolly v DPP, discussed above.
72. 2005 EWHC 2154.
73. It is not clear why the relevant state interest was not said to be the protection of tile rights of others, since this phrase certainly includes the right not to be defamed.
74. 2005 EWHC 2154, per Moses J. at [9]-[12].
75. 2006 EWCA Crim 725 at [12].
76. See fn.20 above.
77. Discussed above, at p.868.
78. In Lapone [2006] UKHL 55 at [87] Lord Rodger thought that the police were not entitled to hold suspicions of the passengers on the coach simply because they declined to give their names; but one might wonder whether some magistrates would be tempted to think that such behaviour was consistent with a preparedness to act provocatively.
79. Serious Organised Crime and Police Act 2005 s.132(1).
80. Serious Organised Crime and Police Act 2005 s.134(3).
81. 2006 EWHC 3209 (Admin) at [19].
82. 2006 EWHC 3209 (Admin) at [17].
83. It will be recalled that the defendants seemed to rely on abuse of process instead, though the court did not deal with their arguments upon this. See above, p.871.
84. The court cited with approval Ziliberberg v Moldava App. No.61821/00, May 4, 2004 where it was held to be open to the member state to consider that such blanket restrictions were necessary to preserve public order.
85. After all, the difficulty in knowing in advance that another demonstrator (or indeed, a stranger to the demonstration) will not cause a disturbance will be enough to make most organisers who are at all fearful of the law anxious to comply with the requirement to seek authorisation.
86. See F. Klug, "Judicial Deference under the Human Rights Act 1998" (2003) 2 E.H.R.L.R. 125. If this is right, then Ziliberberg v Moldava, fn.75 above, as a decision of the European Court of Human Rights, need not have weighed so strongly in persuading the High Court in Blum of the compatibility of s. 132, Serious Organised Crime and Police Act 2005 with Art. 10(2) of the ECHR.
87. 2002 UKHL 11.
88. 2002 UKHL 11 at [20], per Lord Bingham. See Rogers, fn.25 above, at pp.126-128.
89. This had failed because the court thought that his wish to protest might afford him a "lawful excuse", and the court was further influenced by the Human Rights Act 1998 s.12 which dictates that a court in "considering whether to grant relief which, if granted might affect the Convention right to freedom of expression" must have "particular regard to the importance of that right". See Westminster CC v Haw [2002] EWHC 2073 (QB).