Abdul & Ors v Director of Public Prosecutions

Freedom of expression protects minority opinions and protest which is shocking, disturbing, offensive or distasteful. Any restriction must be convincingly justified and narrowly construed. Whether threatening, abusive or insulting speech has crossed into a threat to public order is fact-sensitive, with the context of the occasion being of first importance.

Even where the elements of section 5 of the Public Order Act 1986 are otherwise established, the prosecution must prove that prosecution and conviction are justified and proportionate under Article 10 of the Convention. Relevant legitimate aims include preventing disorder and protecting the reputation or rights of others. Police facilitation of a protest, or a decision against immediate intervention, does not authorise unlawful conduct or ordinarily make a later prosecution abusive.

Five protesters appealed by case stated against their convictions under section 5 of the Public Order Act 1986. During a military homecoming parade, they had directed chants including accusations of murder, rape and killing babies towards marching soldiers. Members of the public became angry, and the police formed barriers and escorted the protesters away.

The appellants contended that the prosecution was an abuse of process because the police had facilitated the protest, given no warning and made no arrests on the day. They also challenged the treatment of Article 10 of the Convention at the close of the prosecution case, the application of section 6(4), and the conclusion that prosecution and conviction were proportionate.

The central questions were whether the proceedings were unfair and whether the convictions represented a justified and proportionate restriction of freedom of expression.

1. Appeal dismissed. The only reasonable conclusion was that the prosecution did not constitute an abuse of process. The police had promised only to facilitate the protest and had given no assurance about what language would be lawful. Their decision to concentrate on preventing violence, rather than arresting or warning the appellants immediately, did not make a later prosecution unfair. Protesters remained responsible for keeping their conduct within the law.

2. Whether the District Judge possessed jurisdiction to determine this form of abuse application was academic. The court inclined to the view that she could have exercised jurisdiction, particularly given the factual overlap with proportionality, but reached no final conclusion.

3. At the close of the prosecution case, section 5 of the Public Order Act 1986 had to be read with Article 10 of the Convention. The District Judge therefore had to consider whether the prosecution evidence, viewed with Article 10 and sections 5(1) and 6(4), was capable of supporting a conviction. She did not then have to determine guilt or consider the section 5(3)(c) defence, whose burden rested upon the defendants. There was manifestly a case to answer, and the District Judge had correctly applied section 6(4).

4. Freedom of expression protects minority views and legitimate protest which is offensive, shocking, disturbing or distasteful. Restrictions must be narrowly construed and convincingly justified. There is no universal or bright-line test separating protected protest from criminal speech. The threat to public order and the full context are of first importance, although hostile reactions do not automatically justify restricting protesters and may instead require their protection.

5. Even where the ingredients of section 5 are otherwise established, the Crown must show that prosecution and conviction are justified and proportionate under Article 10. The District Judge had carried out the required balancing exercise. In the context of a military homecoming parade, personally abusive and inflammatory accusations directed at nearby soldiers created a clear threat to public order and went well beyond legitimate opposition to war. A carefully reviewed, deferred prosecution was proportionate.

6. Davis J agreed. The legitimate aims included both preventing disorder and protecting the reputation or rights of others. Appellate courts should be slow to disturb a lower court’s fact-specific evaluation where all relevant principles have been considered.

• High Court (Administrative Court): Dismissed the appeal by case stated and upheld the appellants’ convictions under section 5 of the Public Order Act 1986.
• District Judge: Convicted five of seven defendants after rejecting applications based on abuse of process, exclusion of evidence and no case to answer. No citation is stated.