Norwood v Director of Public Prosecutions

Factual and Procedural Background

The Appellant appealed by way of case stated from his conviction by District Judge Browning at Oswestry Magistrates Court on 13th December 2002. The conviction was for an offence of causing alarm or distress under section 5(1)(b) of the Public Order Act 1986, aggravated by sections 28 and 31 of the Crime and Disorder Act 1998, as amended by section 39 of the Anti-terrorism, Crime and Security Act 2001.

The offence charged concerned the display of a poster in the first-floor window of the Appellant's flat in a small rural town, containing the phrases "Islam out of Britain" and "Protect the British people," alongside a photograph of one of the twin towers of the World Trade Centre in flames and a Crescent and Star symbol surrounded by a prohibition sign. The poster was supplied by Company A, of which the Appellant was the regional organiser for the area.

The poster had been displayed continuously since November 2001 and was visible to passers-by. A member of the public reported the poster to the police, who subsequently removed it. The Appellant declined police interview and made no statement. The District Judge heard evidence from witnesses including the complainant and police officers, as well as the Appellant and a representative of Company A.

The District Judge convicted the Appellant and fined him £300, finding that the poster was abusive and insulting to Islam and its followers, likely to cause harassment, alarm or distress, and that the offence was religiously aggravated. The District Judge also considered issues of freedom of expression under Article 10 of the European Convention on Human Rights and found that the restrictions imposed were justified under Article 10(2) and Article 17.

Legal Issues Presented

1. Whether the poster displayed by the Appellant was insulting within the meaning of section 5 of the Public Order Act 1986.
2. Whether the display was likely to cause harassment, alarm or distress to persons within sight or hearing.
3. Whether the display was objectively reasonable under section 5(3) of the 1986 Act.
4. Whether the offence was religiously aggravated as defined by sections 28 and 31 of the Crime and Disorder Act 1998.
5. Whether the Appellant's right to freedom of expression under Article 10 of the European Convention on Human Rights entitled him to display the poster.
6. Whether the District Judge correctly applied the burden of proof provisions under section 5(3).
7. Whether the District Judge correctly convicted the Appellant based on the above considerations.

Arguments of the Parties

Appellant's Arguments

• The poster was not abusive or insulting but rather a criticism of the Muslim religion, which is permissible.
• There was no evidence that anyone, particularly Muslims, had been harassed, alarmed or distressed by the poster.
• The basic offence under section 5 was not charged in the alternative, so conviction on the aggravated offence alone was improper.
• Conviction infringed the Appellant's right to freedom of expression under Article 10.1 and was discriminatory contrary to Article 14.
• The District Judge failed to properly weigh the right to freedom of expression and gave undue weight to restrictions under Article 10.2.
• The District Judge wrongly applied a legal burden of proof on the balance of probabilities instead of an evidential burden under section 5(3).
• Relied on a French case distinguishing criticism of religion from attack on its followers.

Respondent's Arguments

• The poster was threatening, abusive or insulting, suggesting Muslims were unwelcome and a danger to the British people.
• The offence was religiously aggravated under the relevant statutory provisions.
• The restrictions on freedom of expression under section 5 fell within the permissible exceptions of Article 10(2) and were necessary in a democratic society.
• Article 17 prohibited abuse of Convention rights and overrode the Appellant's claim under Article 10.
• The District Judge was correct to find the display unreasonable and likely to stir up religious hatred, justifying conviction.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analysed the statutory offence under section 5 of the Public Order Act 1986 and its religious aggravation under the Crime and Disorder Act 1998. It identified the required elements for conviction, including the display of a visible representation, its threatening, abusive or insulting nature, the defendant's intention or awareness of this, and the likelihood of causing harassment, alarm or distress to others. For the aggravated offence, the prosecution must also prove that the conduct was motivated wholly or partly by hostility towards a religious group.

The court rejected the Appellant's argument that the poster was merely a criticism of the Muslim religion rather than an attack on its followers, concluding that the poster was a clear public expression of hostility towards Muslims as a group. The court distinguished the French case cited by the Appellant as factually different.

Regarding the likelihood of causing harassment, alarm or distress, the court agreed with the respondent's submission that the poster's display in a publicly visible location was plainly capable of causing such effects to right-thinking members of society and followers of Islam.

The court considered the burden of proof under section 5(3) and concluded that, although the precise nature of the burden was not fully argued, it was likely a legal burden on the balance of probabilities. However, given the findings on the offence's elements, the defence of reasonableness was unlikely to succeed.

The court engaged with Article 10 of the European Convention on Human Rights, acknowledging the importance of freedom of expression but emphasising that it is subject to narrowly construed restrictions necessary in a democratic society for the protection of the rights of others and prevention of disorder or crime. The court found that the restrictions imposed by section 5 were justified and proportionate in the circumstances, especially given the religious aggravation and the potential for stirring up religious hatred.

Ultimately, the court found the District Judge's findings on the insulting nature of the poster, its likely effect on others, the lack of objective reasonableness, and the religiously aggravated motivation to be well-founded and supported by the evidence.

Holding and Implications

The court's final ruling was to DISMISS THE APPEAL, affirming the conviction of the Appellant for the religiously aggravated offence under section 5 of the Public Order Act 1986.

The direct effect of this decision is to uphold the Appellant's conviction and fine. The court confirmed the application of the statutory provisions concerning religiously aggravated public order offences and the permissibility of restrictions on freedom of expression under Article 10(2) and Article 17 of the European Convention on Human Rights in such contexts. No new precedent was established beyond the clarification and affirmation of existing legal principles as applied to the facts of this case.