Norwood v Director of Public Prosecutions

For an offence under section 5 of the Public Order Act 1986, the prosecution must prove the statutory elements, including that the defendant intended, or was aware that, the display might be threatening, abusive or insulting, and that it was likely to cause harassment, alarm or distress. Actual distress need not be proved. In a religiously aggravated case, hostility towards members of a religious group must also be proved. Article 10 rights are principally engaged through the objective reasonableness defence in section 5(3). The court must balance freedom of expression against the protection of others and the prevention of disorder or crime.

The appellant was convicted by a district judge of displaying a poster contrary to section 5(1)(b) of the Public Order Act 1986. The offence was found to be religiously aggravated under sections 28 and 31 of the Crime and Disorder Act 1998. The poster stated “Islam out of Britain” and “Protect the British people”, and used images and symbols associated with Islam and the 11 September attacks.

By case stated, the appellant challenged findings that the poster was insulting, was likely to cause harassment, alarm or distress, was not objectively reasonable, was religiously aggravated, and was not protected by article 10 of the European Convention on Human Rights.

1. Appeal dismissed. The Divisional Court answered “Yes” to each question posed by the district judge and upheld the conviction.
2. Section 5 required proof of four matters: display of a visible representation; that it was threatening, abusive or insulting; that the defendant intended it to be so or was aware that it might be so; and that it was within sight or hearing of a person likely to be caused harassment, alarm or distress. Each matter had to be proved to the criminal standard.
3. For the aggravated offence, the prosecution had to prove that the defendant was motivated wholly or partly by hostility towards members of a religious group based on their membership of that group.
4. The poster was capable of being found insulting to Muslims as a religious group, rather than merely an intemperate criticism of religious doctrine. Actual harassment, alarm or distress did not need to be proved. Its terms, symbols and public location were sufficient evidence from which likelihood could be found as a matter of common sense.
5. Article 10 was relevant to the objective reasonableness of the conduct under section 5(3). The court had to balance legitimate expression against the protection of others and the prevention of disorder or crime. Relevant considerations included whether the conduct went beyond legitimate protest and whether an expression of opinion had become disproportionate and unreasonable.
6. The court declined to determine the precise nature or Convention proportionality of the reverse burden in section 5(3), because the issue had not been fully argued. On the findings made, the district judge was entitled to conclude that the conduct was objectively unreasonable.

High Court (Administrative Court): On an appeal by way of case stated, the court upheld the conviction by the district judge at Oswestry Magistrates’ Court and dismissed the appeal.