Director of Public Prosecutions, R (on the application of) v Manchester City Magistrates’ Court

Under the statutory reasonable-conduct defence, the accused bears the legal burden of proving relevant facts on the balance of probabilities. Once a conviction would interfere with engaged Convention rights, however, the prosecution must convincingly establish that the interference is proportionate. The court must undertake a fact-sensitive proportionality assessment unless the offence’s ingredients, or another recognised feature of the case, provide an intrinsic answer. The assessment may therefore be conducted through the reasonable-conduct defence. Judicial review will not disturb an evaluative proportionality conclusion where there is no error of reasoning undermining its cogency. An application to state a case is frivolous where it is misconceived or hopeless.

The Director of Public Prosecutions challenged the acquittal of two protesters by Manchester Magistrates’ Court following their conviction-resistant use of the words “Tory scum” during a protest. The prosecution also challenged the magistrate’s refusal under s.111 of the Magistrates’ Courts Act 1980 to state a case, certified as frivolous.

The issues were whether the magistrate misdirected himself on the burden of proof or the proportionality assessment under s.4A of the Public Order Act 1986, whether his conclusion was unreasonable, and whether the refusal to state a case was unlawful.

1. Claim dismissed. The magistrate’s acquittals and refusal to state a case disclosed no material error.
2. The reasonable-conduct defence in s.4A(3)(b) of the Public Order Act 1986 places the legal burden on the accused to establish, on the balance of probabilities, facts relied upon to show that the conduct was reasonable. That defence can operate outside Convention issues, and factual questions about engagement, interference, the nature of the interference and the circumstances of the conduct remain matters for the defence where they are within the defendant’s knowledge.
3. Where Convention rights are engaged, the conduct falls within their scope, a conviction would interfere with those rights, and the offence’s ingredients or another recognised feature do not provide an intrinsic answer to proportionality, the court must undertake a fact-sensitive proportionality assessment. The reasonable-conduct defence supplies the route for that assessment. At the evaluative proportionality stage, the prosecution, as the state’s emanation, must convincingly establish that conviction is proportionate. The court described this as compatible with Percy, Norwood and Hammond.
4. The magistrate had considered the relevant context, including the pursuit, the distance maintained, the traffic-cone incident, the effect on the politician and his companions, the continuing drumming and shouting, and the protesters’ purpose. His conclusion that the insulting words highlighted political policies and that criminalising their use was disproportionate was open to him. There was no joint-enterprise case and no finding of threatening words or behaviour.
5. The application to state a case was properly characterised as frivolous. It was misconceived and hopeless because it presented disagreement with an evaluative conclusion as an alleged insufficiency of evidence and did not identify a properly formulated question of law. There was no utility in ordering a case to be stated.

The judgment itself describes the underlying acquittals and refusal to state a case by Manchester Magistrates’ Court. The High Court dismissed the judicial review claim.