Percy v Director of Public Prosecutions

Factual and Procedural Background

On 11th and 18th May 2001, the Appellant stood trial at Thetford Magistrates' Court charged with obstructing the highway and using threatening, abusive, and insulting words or behaviour likely to cause harassment, alarm, or distress contrary to section 5 of the Public Order Act 1986. The conviction under the latter charge is the focus of this court. The District Judge convicted the Appellant of both offences, fining her £300 and ordering costs, whereas the maximum penalty under section 5 is a fine of £1000.

The convictions arose from the Appellant's protest at an American air base at RAF Feltwell, where she defaced the American flag by marking it with a stripe and the words "Stop Star Wars," placed it on the ground, and stood upon it. The behaviour distressed American service personnel and their families, who regarded the acts as desecration of a national symbol. The District Judge found the Appellant aware of the flag's symbolic importance and concluded her actions were calculated to offend. Although motivated by deeply held beliefs opposing the "Star Wars" project, the Appellant failed to prove her conduct was reasonable on the balance of probabilities.

The District Judge considered the impact of Article 10 of the European Convention on Human Rights (ECHR) concerning freedom of expression, acknowledging its protections but emphasizing that the right is not absolute and may be restricted to protect the rights of others. The court found a pressing social need to protect the rights of American personnel and their families from gratuitously insulting behaviour and to safeguard the respect due to their national flag. Ultimately, it held that the conviction did not violate Article 10.

The case presented two questions for this court: (i) whether the conviction under section 5 was compatible with Article 10 ECHR, and (ii) if not, whether the conviction should be quashed.

Legal Issues Presented

1. Was the Appellant's conviction under section 5 of the Public Order Act 1986 compatible with Article 10 of the European Convention on Human Rights and Fundamental Freedoms?
2. If the answer to question (i) is "No," should the Appellant's conviction under section 5 of the Public Order Act be quashed?

Arguments of the Parties

Appellant's Arguments

• The burden under section 5(3) to prove reasonableness ensures the accused's Article 10 right to freedom of expression is engaged.
• Initially sought a declaration of incompatibility between section 5 and Article 10 but accepted it is a remedy of last resort, applicable only if statutory wording clearly violates Convention rights.
• Freedom of expression protects unpopular, offensive, or disturbing speech, including protest activities, which must only be restricted if necessary and proportionate.
• Flag denigration is a globally recognized form of protest protected in other jurisdictions (e.g., Texas v Johnson in the U.S.).
• For peaceful protests, mere insulting conduct under section 5 is insufficient for conviction; there must be an additional element such as racial or religious hostility or risk of disorder.
• Disputed the District Judge's finding of a pressing social need to protect American servicemen's sensitivities, arguing this reasoning was circular and insufficiently rigorous.
• Submitted that penalizing the method of protest effectively extinguished the fundamental right to convey the message.

Respondent's Arguments

• The Crown did not seek to restrict the Appellant's right to protest but argued that freedom of expression is limited by the prohibition on gratuitously offensive or insulting behaviour under Article 10(2).
• Focus was on the deliberate intention to insult, which distinguished this case from other authorities.
• The use of the flag was significant because the Appellant knowingly targeted American servicemen and their families, making the insults personal.
• Argued that the District Judge's findings of fact were unimpeachable and that the court's discretion under section 5 and Article 10 was properly exercised.
• Suggested this court should consider the matter afresh and quash the conviction only if it found a violation of Convention rights.

Secretary of State's Arguments

• Section 5 provides a balanced framework for criminalising behaviour that is threatening, abusive, or insulting beyond peaceful protest.
• Mens rea and the defence of reasonableness ensure legitimate public debate is unlikely to be criminalised.
• District Judge correctly applied section 5 and Article 10; intervention by this court should be limited to errors of law or irrational factual findings.
• The case concerns the interplay between the lawful message and the method of protest (defacing the American flag), and whether that method was disproportionate.
• Agreed that peaceful protest is protected but argued that the method of protest here was so unreasonable as to lose Article 10 protection.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged that the Appellant's conduct engaged Article 10 rights because it involved political protest. It recognized the legitimate aim of protecting individuals from gratuitously insulting behaviour that causes distress, particularly when it involves symbols of significant cultural importance, such as a national flag.

The District Judge's factual findings were accepted as unimpeachable, including that the Appellant was aware of the likely effect of her conduct and that her behaviour was calculated to insult American service personnel. The court agreed that section 5 and section 6 of the Public Order Act provided an appropriate legal framework balancing freedom of expression and protection from insult.

However, the court found fault in the District Judge's application of the proportionality test under Article 10. The District Judge placed excessive reliance on the fact that the Appellant could have protested without insulting the flag, without adequately weighing the presumption in favour of freedom of expression or fully addressing proportionality. This approach failed to convincingly establish the necessity of the restriction on the Appellant's Article 10 rights.

Consequently, the court concluded that the conviction under section 5 was incompatible with the Appellant's rights under the European Convention on Human Rights.

Regarding remedy, the court considered that the matter could have been resolved by appeal and rehearing at the Crown Court or magistrates' court. Given the relative gravity of the conduct and the unchallenged highway offence conviction, the court determined that quashing the conviction was the appropriate course.

Holding and Implications

The court's final decision was to QUASH THE CONVICTION under section 5 of the Public Order Act 1986.

The direct effect is that the Appellant's conviction for using threatening, abusive or insulting behaviour contrary to section 5 is overturned. No new precedent was established beyond clarifying the application of Article 10 proportionality in the context of protest involving symbolic objects. The ruling underscores the necessity of a rigorous proportionality analysis when restricting freedom of expression in democratic societies, especially concerning political protest.