Director of Public Prosecutions v Hamit Coskun

Whether conduct is “disorderly” and whether it is “likely” to cause harassment, alarm or distress under Public Order Act 1986, section 5, are separate questions of fact. The statutory words receive their ordinary meaning, subject to guidance developed in the context of Article 10. The court must apply a suitably narrow construction that protects legitimate freedom of expression and protest. An appellate court hearing a case stated appeal should not re-evaluate those factual and evaluative conclusions. It may intervene only where the decision was unreasonable in the stringent Brutus sense, or where an identifiable flaw undermines the conclusion. Context, location, duration, numbers and observed reactions may all be relevant.

The respondent was convicted by the Magistrates’ Court of a religiously aggravated section 5 public order offence after burning a copy of the Qu’ran outside the Turkish Consulate and making anti-Islamic statements. On appeal by way of rehearing, the Crown Court acquitted him, concluding that the conduct was neither “disorderly” nor likely to cause harassment, alarm or distress.

The DPP appealed by case stated. The Crown Court asked whether it had been entitled to reach those two conclusions. The issue before the Administrative Court was whether either conclusion was irrationally unavailable on the evidence, rather than whether the High Court would have reached the same factual evaluation.

1. Appeal dismissed. The Crown Court was entitled to conclude that the respondent’s conduct was not proved to be disorderly or likely to cause harassment, alarm or distress under section 5 of the Public Order Act 1986.
2. “Disorderly behaviour” and conduct “likely” to cause harassment, alarm or distress are separate ingredients and separate questions of fact. Their ordinary meaning must be applied to the circumstances found by the trial court. The appropriate appellate question is ordinarily whether the decision was unreasonable in the stringent Brutus sense.
3. The modern approach requires a suitably narrow construction compatible with Article 10. A separate proportionality analysis is not required in every case. Compatibility may be secured through the construction and application of the offence, together with the defence of reasonable conduct in section 5(3).
4. The High Court did not re-evaluate the evidence. The Crown Court had considered the protest’s lack of targeting, its location outside a secure diplomatic premises, the respondent’s acting alone, daylight, short duration and the reactions of persons present. Those were relevant factors. The violent reactions of two men were not determinative of what was likely to occur, and anger or insult did not necessarily amount to harassment, alarm or distress.
5. The Crown Court’s decision to consider the first two ingredients together was suboptimal but disclosed no error of principle or logic. Its conclusions were rationally open to it.

• Magistrates’ Court: convicted the respondent of the religiously aggravated section 5 offence.
• Crown Court: on appeal by way of rehearing, acquitted the respondent.
• High Court (Administrative Court): dismissed the DPP’s appeal by case stated.