Campaign Against Antisemitism v Director of Public Prosecutions

Prosecutorial decisions are reviewable on conventional public-law grounds, but intervention is exceptional. The margin of judgment is narrower where the issue is law rather than disputed evidence or public interest. The evidential stage asks whether conviction is more likely than not.

The word abusive in section 5 of the Public Order Act 1986 must be read in the context of article 10 of the European Convention on Human Rights. Political expression receives particular protection. Offensive, provocative, distressing or inaccurate speech is not criminal merely because of those qualities. Context, public order and the rights of those targeted remain central.

The claimant challenged the decision of the Director of Public Prosecutions to take over and discontinue its private prosecution of Nazim Hussain Ali under section 5 of the Public Order Act 1986. The prosecution concerned statements made by Mr Ali while addressing an Al Quds Day rally in London.

The DPP concluded that the evidential stage of the Full Code Test was not met because the words were unlikely to be found abusive. The public-interest stage was not considered. The central issue was whether that conclusion was irrational in light of article 10, the statutory context, the surrounding circumstances and the absence of any suggested risk of public disorder.

Claim dismissed. The court held that the decision to take over and discontinue the private prosecution was not irrational or otherwise unlawful.

1. The meaning of abusive in section 5 of the Public Order Act 1986 is fact-specific. Section 5 must be construed consistently with article 10 of the European Convention on Human Rights. Freedom of expression, particularly political expression, is the starting point and restrictions must be narrowly construed.
2. Context is of first importance. The court must consider the words used, the circumstances, any threat to public order and the rights and interests of those targeted. The risk of violence by persons reacting to protest is relevant but is not automatically decisive. Article 10 does not permit restriction merely because speech is provocative, distasteful, offensive or distressing.
3. Judicial review of a prosecutorial decision is confined to conventional public-law grounds, including irrationality and errors of law. Where the decision-maker has asked the right questions and properly informed himself, intervention will be very rare. The margin is greater where disputed evidence or public interest is assessed, and narrower where the issue is essentially legal. The decision letter should be read broadly and with common sense.
4. The Full Code Test required the DPP to discontinue the private prosecution if either the evidential or public-interest stage was not met. The evidential stage involved an objective assessment of whether a properly directed tribunal was more likely than not to convict.
5. Applying those principles, the DPP was entitled to regard the Grenfell accusations, the accusations concerning the Board of Deputies and the baby-killer passages as unlikely to support conviction. The statements could be intemperate, offensive, distressing or based on false premises without necessarily being abusive under section 5. There was no suggestion of a real risk of public disorder.
6. Abdul v Director of Public Prosecutions [2011] EWHC 247 (Admin) was distinguishable because the words there were used in a materially different context involving a real threat to public order and resulting trouble. The general principles stated in that case were nevertheless adopted.