Deborah Hicks v Director of Public Prosecutions

Section 5 of the Public Order Act 1986 criminalises threatening or abusive conduct, not conduct that is merely rude, offensive, insulting, distressing or intemperate. The statutory words must be construed narrowly and in their Article 10 context. The objective effect of words and behaviour is assessed as a question of fact; the recipient’s perception is relevant but not determinative.

Tone will rarely convert an unpleasant exchange into a criminal offence where the words are not threatening or abusive. However, filming people at close range in a confined workplace, against a background creating a reasonable fear of online abuse, may take conduct beyond legitimate expression. Once the statutory elements are established on that construction and the reasonable-conduct defence fails, a separate proportionality assessment will generally be unnecessary.

Deborah Hicks was convicted by District Judge Wattam at Cheltenham Magistrates’ Court of using threatening or abusive words or behaviour contrary to section 5 of the Public Order Act 1986. During a hospital visit to film material for publication about Covid-19, she confronted two healthcare workers, held her phone close to one worker’s face and caused both to fear that they might be filmed and subjected to online abuse.

On appeal by case stated, the Divisional Court considered whether the offence elements were proved, whether the reasonable-conduct defence under section 5(3) was established, and whether the conviction was a proportionate interference with Article 10 rights.

1. Appeal dismissed. The judge’s findings were not vitiated by a material error of law. On a case stated appeal, this court considers the findings and conclusions recorded in the case stated. It may intervene only for an error of law apparent on the face of the case, or where the decision was not rationally open to the tribunal on the evidence.
2. The question whether words or behaviour are threatening or abusive is one of objective fact. The way in which conduct was perceived is relevant but not determinative. The statutory terms are ordinary English words, but must be construed narrowly in the light of Article 10 ECHR and Parliament’s removal of the word “insulting” from section 5.
3. Rudeness, disrespect, contempt, distress, offensiveness, distastefulness, insult, intemperance and an unpleasant tone do not, without more, establish the offence. Tone will rarely suffice where the words themselves are not threatening or abusive. The court must identify whether the conduct has crossed the line between legitimate expression and a threat to public order.
4. On the facts, the close-range filming on a narrow hospital stairwell, the witnesses’ knowledge of the previous online video and comments, and their reasonable fear of identification and online abuse provided an evidential basis for finding the conduct objectively threatening and abusive. The judge was also entitled to find the requisite intention or awareness.
5. The appellant’s journalistic or political purpose engaged Article 10, but did not make the conduct a protest or justify threatening or abusive treatment of individuals. The footage of the encounter was peripheral to the stated purpose of demonstrating hospital occupancy. The reasonable-conduct defence therefore failed.
6. Once the offence was construed compatibly with Article 10, its elements were proved and the statutory defence failed, no separate proportionality analysis was required. In any event, the conviction was proportionate. The circumstances of the arrest were a separate interference and were not relevant to the proportionality of the conviction.

• High Court (King’s Bench Division), Divisional Court: District Judge Wattam’s conviction was upheld and the appeal by case stated was dismissed.
• Cheltenham Magistrates’ Court: The appellant was convicted of an offence under section 5 of the Public Order Act 1986.