Hammond v Department of Public Prosecutions

Freedom of expression protects views that offend, shock or disturb, but it is subject to lawful and proportionate restrictions. Under section 5 of the Public Order Act 1986, whether conduct is insulting is ordinarily a question of fact. Convention rights must inform both the assessment of whether conduct is insulting and the statutory defence that the conduct was reasonable. The restriction must pursue a legitimate aim and satisfy proportionality, including a pressing social need and relevant and sufficient reasons. Religious or proselytising expression receives protection under Articles 9 and 10, but that protection does not prevent conviction where the statutory elements are established and the conduct was unreasonable. A finding by magistrates will stand unless it was outside the range of conclusions properly open to them.

The claimant appealed by way of case stated against his conviction by magistrates for displaying an insulting sign contrary to section 5 of the Public Order Act 1986. The sign stated “Stop Immorality”, “Stop Homosexuality” and “Stop Lesbianism”. The magistrates found that it was insulting, that the claimant knew it might be insulting, and that his conduct was unreasonable in circumstances involving an angry and distressed crowd and a risk of disorder.

The appeal raised the interaction between section 5, freedom of expression under Article 10, freedom to manifest religion under Article 9, and proportionality.

1. Appeal dismissed. The magistrates had asked themselves the correct questions under section 5 and the Convention. Their conviction and orders therefore stood, with the claimant to pay the respondent’s costs.
2. Whether the sign was insulting was a question of fact for the magistrates in the context of all the circumstances. The word “insulting” retained its ordinary meaning, but Article 10 considerations were relevant when applying that word to particular facts.
3. The prosecution had to prove that the sign was threatening, abusive or insulting, that a person was likely to be caused harassment, alarm or distress, and that the claimant intended that result or was aware that it might occur. The claimant could establish the defence under section 5(3)(c) by proving that his conduct was reasonable.
4. Convention rights did not themselves provide a defence to the information. They had to be brought into account in construing and applying section 5. In particular, the reasonableness defence required consideration of whether interference with the claimant’s Article 9 or Article 10 rights was justified.
5. The proportionality assessment required consideration of whether the restriction was prescribed by law, pursued a legitimate aim, answered a pressing social need, was proportionate to that aim, and was supported by relevant and sufficient reasons. Article 9 added religious context but did not materially alter the Article 10 analysis.
6. Although the words were not intemperate and the claimant was preaching sincerely, the magistrates were entitled to find that the sign implied that homosexual and lesbian people were immoral, was insulting, and that the claimant’s conduct was unreasonable. Their conclusions were not perverse or otherwise outside the range of decisions open to them.

The appeal was brought by way of case stated from the decision of magistrates at Wimbourne Magistrates’ Court. The High Court (Administrative Court) dismissed the appeal and ordered the claimant to pay the respondent’s costs.