MICHAEL OVERD v THE CHIEF CONSTABLE OF AVON AND SOMERSET CONSTABULARY

Convention rights to religious manifestation and freedom of expression protect a broad range of speech, including unpopular or offensive speech, but they are qualified rights. Police action restricting speech may be lawful where it is prescribed by law, pursues a legitimate aim such as public safety or the prevention of disorder, and is proportionate.

In an unforeseen emergency, officers may take the least intrusive measures reasonably available on the information and resources then available. They need not always side with the speaker or identify precisely what each member of a preaching group has said before making arrests. Reasonable suspicion is assessed cumulatively by reference to the information in the arresting officer’s mind. An arrest is not unlawful merely because the officer initially misidentifies the statutory source of an existing power.

Four evangelical Christian street preachers appealed from the Bristol County Court’s dismissal of claims arising from their arrests at a shopping centre in Bristol. They alleged breaches of Articles 9, 10 and 11 of the Convention, wrongful arrest and related torts.

Permission to appeal was limited principally to the compatibility of the arrests with Convention rights, the basis of the first claimant’s arrest under Police Reform Act 2002 section 50, whether there were reasonable grounds for suspecting the relevant offences, and whether later incidents involving the first claimant required separate Convention-rights findings.

The central questions were whether the police had acted proportionately in responding to an escalating public-order emergency and whether the arresting officers had reasonable grounds for suspicion.

1. Appeal dismissed. The county court judge’s factual findings were open to him. The appellate court was not entitled to re-try the evidence or substitute its own assessment of the atmosphere at the scene.
2. Articles 9 and 10 were engaged. Religious manifestation and expression may include proselytising and speech which offends, shocks or disturbs. However, those rights are qualified. The police were not required always to side with the speakers or to permit preaching in any place and manner chosen by them.
3. The arrests pursued the legitimate aims of protecting public order, preventing disorder and protecting the claimants’ safety. Applying the four-stage proportionality test in Bank Mellat v HM Treasury (No 2) [2014] AC 700, the objective was sufficiently important, rationally connected to the arrests, and the arrests were the least intrusive realistic measures available in an unforeseen and escalating emergency. The limited interference with preaching and liberty was proportionate to the risks of disorder and physical harm.
4. Redmond-Bate v Director of Public Prosecutions [2000] HRLR 249 did not establish a universal Convention test requiring the court always to ask whether the speaker or the crowd was at fault. It turned on the application of the common law to its particular facts. Those considerations could nevertheless be relevant to proportionality.
5. For reasonable suspicion under section 24 of the Police and Criminal Evidence Act 1984, the threshold is low and the information in the arresting officer’s mind is assessed cumulatively. The complaints, the hostile and volatile scene, the continuing preaching, the inability to investigate safely before arrest, and the claimants’ collective participation supplied objectively reasonable grounds for suspicion, even though the officers could not identify precisely what each claimant had said.
6. The first claimant’s arrest was lawful notwithstanding the arresting officer’s initial confusion about whether section 35 of the Anti-Social Behaviour, Crime and Policing Act 2014 or section 50 of the Police Reform Act 2002 supplied the power. Substance, not precise statutory terminology, governed. No warning that refusal to give a surname might lead to arrest was legally required, although such a warning could be good practice where practicable.
7. The later incidents involving the first claimant were pleaded as part of an alleged concerted course of conduct. The trial judge addressed that case and found no such concerted unlawful course. He was not required to conduct a separate proportionality assessment of each incident when that case had not been advanced at trial.

• High Court (Queen’s Bench Division): On appeal from the Bristol County Court judgment of HHJ Ralton dated 26 January 2021, the appeal was dismissed.