James v Director of Public Prosecutions

A criminal trial court does not determine whether the prosecutor’s decision to prosecute was proportionate under articles 10 and 11 of the European Convention on Human Rights. Such a contention is relevant only if it satisfies the exceptional requirements of abuse of process.

For an offence under section 14(5) of the Public Order Act 1986, proportionality is accommodated by the requirement that the direction and its conditions be lawful. The senior officer must reasonably believe that the assembly may cause the specified serious consequences, and each condition must reasonably appear necessary to prevent them. No additional proportionality defence need be read into the provision.

The appellant was convicted by Westminster Magistrates’ Court of knowingly failing to comply with a condition imposed on a public assembly under section 14 of the Public Order Act 1986. Protesters had repeatedly occupied a pedestrian crossing outside the Royal Courts of Justice and seriously disrupted traffic. A police condition required the assembly to move from the crossing to a specified area on the pavement.

On an appeal by case stated, the appellant challenged the District Judge’s refusal to consider a late submission that prosecution was disproportionate. She also disputed the lawfulness and communication of the section 14 direction. The central issues were how rights under articles 10 and 11 of the European Convention on Human Rights operated at trial and whether the direction and conditions were lawful.

1. Appeal dismissed. Both questions stated by the District Judge were answered affirmatively. The District Judge had correctly refused to entertain the late proportionality submission and had correctly held the second section 14 direction lawful.

2. The proportionality of the prosecutor’s decision to prosecute is not an issue for the criminal trial court. Prosecutorial decisions belong to the prosecutor, while the trial court determines guilt on admissible evidence. A challenge may be entertained only where it amounts to abuse of process, which is an exceptional and limited remedy. Dehal v CPS [2005] EWHC 2154 (Admin) was wrongly decided on this point and should no longer be followed or cited without reference to the corrective approach in Bauer v DPP [2013] EWHC 634 (Admin).

3. Articles 10 and 11 nevertheless retain their proper role in determining criminal liability. Depending on the statutory scheme, proportionality may be accommodated through a defence of reasonable conduct, through the interpretation of statutory language, or through proof of offence elements which themselves strike the required balance. The prosecution need not additionally prove that commencing proceedings was proportionate.

4. Under section 14(1) of the Public Order Act 1986, the senior officer must actually and reasonably believe that the assembly may produce the specified serious consequences. A condition must also reasonably appear necessary to prevent those consequences. These requirements are implicit in the lawfulness required by section 14(5), despite the absence of the word “reasonably” immediately before “appear to him necessary”. They enable the accused to test the proportionality of the direction and condition without reading an additional defence into section 14(5).

5. The findings of serious traffic disruption and the limited requirement that protesters move from the crossing to the pavement made any conclusion that the direction or condition was unreasonable untenable. The order need not have been read out in full. It was enough that sufficient information was communicated for the appellant to know what she was required to do and refrain from doing. Liability arose only after communication made non-compliance knowing and compliance remained within her control.

6. An appeal by case stated cannot be used to ventilate factual disputes. It permits a factual challenge only where there was no evidence supporting an identified finding or the finding was irrational.

Davis LJ agreed. He expressly recanted the endorsement in Abdul v DPP [2011] EWHC 247 (Admin) of the proposition that a trial court must additionally assess the proportionality of the decision to prosecute.

1. High Court, Divisional Court: The appeal by case stated was dismissed. Both questions stated by the District Judge were answered affirmatively.

2. Westminster Magistrates’ Court: On 14 May 2014, District Judge Greenfield convicted the appellant under section 14(5) of the Public Order Act 1986, imposed a two-year conditional discharge, and ordered a contribution to prosecution costs and a victim surcharge.