Hammond v Department of Public Prosecutions

Factual and Procedural Background

The appeal arises from a case stated by the justices for the Commissionaire of Dorset at a Magistrates' Court in The City on 24th April 2002. The information was preferred by the Chief Constable of Company A Police against the Defendant on 4th December 2001, charging him with an offence under section 5 of the Public Order Act 1986. The Defendant was alleged to have displayed a sign in The Square, The City, on 13th October 2001, which was threatening, abusive, or insulting within the hearing or sight of persons likely to be caused harassment, alarm, or distress.

Procedurally, the appeal faced complications due to the death of the Defendant before the appeal was heard. Initially, a judge decided the appeal should not proceed, but a later judge was persuaded otherwise. An application to amend the case stated was made, adding questions for the court's consideration, and although the justices were not fully informed of this amendment, the court ordered the amendments and proceeded with the appeal.

The justices found the following facts: The Defendant was an Evangelical Christian preacher with deeply held religious beliefs. He had made a large double-sided sign bearing the words "Stop Immorality", "Stop Homosexuality", and "Stop Lesbianism". On 13th October 2001, he displayed this sign while preaching in a pedestrianised area of The City. A crowd gathered, some of whom were hostile, throwing soil and water at the Defendant and attempting to seize the placard. Police attended; one officer arrested the Defendant for breach of the peace, believing he was provoking violence. The Defendant refused to remove the sign or leave when requested by police.

The justices found that the words on the sign were insulting and caused distress to several members of the public, including individuals identifying as homosexual or lesbian. They convicted the Defendant of the offence, fined him, ordered costs, and forfeiture of the sign.

Legal Issues Presented

1. Whether the justices were correct to find that the Defendant's right to freedom of expression under Article 10 of the European Convention on Human Rights should be qualified and restricted for the prevention of disorder or crime.
2. Whether the arrest and prosecution under section 5 of the Public Order Act 1986 were necessary, justified, and a proportionate response.
3. Whether the conviction under section 5 of the Public Order Act 1986 was correct.
4. Whether the Defendant’s proselytising activities engaged Article 9 of the European Convention on Human Rights, affecting the answer to issue (1).
5. Whether the application of section 13 of the Human Rights Act 1998 affected the answers to issues (1) and (2).
6. Whether Articles 9 and/or 10 read in conjunction with Article 13 require the authorities to protect individuals like the Defendant where violence or threat of disorder emanated from others present.

Arguments of the Parties

Appellant's Arguments

• The justices misdirected themselves in finding the words on the sign were insulting; the words did not go beyond legitimate expression and were not insulting within the meaning of section 5.
• The Defendant’s conduct was reasonable under section 5(3)(c) because the insults were part of sincere religious and moral beliefs, he was preaching to convert others, and he did not use threatening language or incite violence.
• Even without Convention rights, the reasonableness defence should be established.
• If Convention rights are considered, the prosecution must show the interference with freedom of expression was prescribed by law, pursued a legitimate aim, and was necessary and proportionate in a democratic society.
• The reasons given by the justices for restricting the Defendant’s rights were inadequate, particularly that displaying the sign in a public place provoking hostility does not justify restriction, lest it create a heckler’s veto.
• The Defendant was a victim of assault and entitled to protection rather than arrest.
• The sincerity and religious nature of the expression require compelling grounds for interference, which were absent.

Respondent's Arguments

• The sign was insulting and caused distress to several persons present.
• The Defendant was aware the sign was insulting, as evidenced by his prior experience and admission to police.
• The restriction of the Defendant’s freedom of expression was legitimate for preventing disorder, given the reaction provoked.
• There was a pressing social need for tolerance towards all sections of society, including homosexual and lesbian communities, justifying the restriction.
• The interference was proportionate since the Defendant’s conduct went beyond legitimate protest, provoking violence and interfering with others' rights.
• The Defendant’s refusal to comply with police requests further justified the arrest and prosecution.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the balance between freedom of expression under Articles 9 and 10 of the European Convention on Human Rights and the legitimate aim of preventing disorder. It recognized that "insulting" is an ordinary English word for the magistrates to apply as a question of fact and that the justices had to consider Convention rights compatibly with the Human Rights Act 1998.

The court acknowledged the difficulty in determining whether the sign was insulting but concluded it was open to the justices to find that the words, which linked homosexuality and lesbianism with immorality, were insulting and caused distress. The court accepted that the justices considered the Defendant’s awareness of the insulting nature of the sign and the impact on public order.

Regarding the reasonableness defence under section 5(3)(c), the court held that the justices properly incorporated Convention considerations, particularly Article 10, when deciding whether the Defendant’s conduct was reasonable. The court found that the justices’ conclusion that the Defendant’s conduct was not reasonable was supported by the facts and the legal framework.

The court rejected the appellant’s submission that the restriction of freedom of expression was disproportionate, noting the justices’ reasons that the sign targeted a specific community, provoked hostility, and interfered with others’ rights. It also rejected the argument that the Defendant was merely a victim of assault, emphasizing that the Defendant’s conduct provoked disorder.

Ultimately, the court found no error in the justices’ application of the law or their findings of fact and concluded that the conviction under section 5 of the Public Order Act 1986 was properly established.

Holding and Implications

The court DISMISSED the appeal, upholding the conviction of the Defendant under section 5 of the Public Order Act 1986.

The decision confirms that freedom of expression, including religious proselytising, may be lawfully restricted to prevent disorder when the expression is found to be insulting and provokes hostility, provided such restriction is proportionate and pursues a legitimate aim. The ruling emphasizes the careful balancing required under Articles 9 and 10 of the European Convention on Human Rights and affirms the role of magistrates in assessing facts and reasonableness in such cases.

No new precedent was established beyond the application of existing principles to the facts of this case.