Kendall v Director of Public Prosecutions

Whether a display is threatening, abusive or insulting under Public Order Act 1986 section 5 involves a value judgment based on the message conveyed by the display as a whole. A display may be abusive or insulting even where it purports to comment on criminal conduct or advance a political cause. For the awareness limb of section 6(4), the prosecution need establish awareness that the display may be threatening, abusive or insulting. Racial aggravation is a question of fact. Political or recruitment motives do not exclude simultaneous hostility towards a racial group. The court may infer hostility from the words used, the subjects depicted and the absence of another satisfactory explanation for their selection.

The appellant was convicted at Southend Magistrates’ Court of the racially aggravated form of the section 5 offence under the Public Order Act 1986. He had displayed posters bearing the words “Illegal Immigrant Murder Scum”, photographs of three black illegal immigrants convicted of serious offences, and contact details for the British National Party.

By case stated, the magistrates asked whether the display was threatening or abusive, whether the appellant intended or was aware that it was threatening, abusive or insulting, and whether putting it up was motivated by hostility towards a racial or religious group. The central issues were the proper approach to the display’s meaning, the mental element, and racial aggravation.

1. Appeal dismissed. The magistrates were entitled to convict on the facts found.
2. Whether a visual display is threatening, abusive or insulting for section 5 purposes is a value judgment. The display must be assessed as a whole and by reference to the message it conveyed to those who saw it. It was open to the magistrates to find that the posters conveyed that black people were scum because people coming to Britain illegally commit, or are capable of committing, serious crimes. The reasoning in Norwood v Director of Public Prosecutions [2003] EWHC 1564 (Admin) supported that approach.
3. The magistrates’ second question misstated the alternative mental element. Under section 6(4) of the Public Order Act 1986, it was sufficient that the appellant was aware that the posters may be threatening, abusive or insulting. If he was aware of the message conveyed by the posters, it was open to the magistrates to infer the necessary awareness.
4. Whether conduct is racially aggravated under sections 28 and 31 of the Crime and Disorder Act 1988 is a question of fact. Consistently with Attorney General’s Reference (No 4 of 2004) [2005] 2 Cr.App.R 26, the issue was whether “immigrant” was merely a reference to non-Britishness or manifested hostility based on perceived race or colour. The choice of black men, the photographs, the word “scum”, and the generalisation from the conduct of particular illegal immigrants were factors supporting the magistrates’ conclusion.
5. The appellant’s political or recruitment purpose did not prevent concurrent racial hostility. The statutory defence in section 5(3) did not alter the conclusions on the questions stated.

• High Court (Administrative Court): appeal by case stated from conviction at Southend Magistrates’ Court dismissed.