"Internet Law Book Reviews" Provided by Rob Jerrard LLB LLM
Percy Again Conviction for defacing flag is incompatible with Article 10 of the European Convention on Human Rights.
Percy v Director of Public Prosecutions Queen's Bench Divisional Court (2001) The Times, 21 January.
Keywords
The European Convention on Human Rights Order Act 1986, s. 5
Insulting words or behaviour
Freedom of expression
Defaced the American flag
The statute
Public Order Act 1986, s. 5 states:
(1) A person is guilty of an offence if he
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
(c)
(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.
The Public Order Act 1986, s. 6 states:
(4) A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive Or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.
The European Convention on Human Rights, Article 10 states:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The facts
The alleged offence was committed near the gate at RAF Feltwell in the course of a protest against the use of weapons of mass destruction and against American military policy including the national missile defence system. Percy defaced the American flag by putting a stripe across the stars and by writing the words 'Stop Star Wars' across the stripes.
Percy stepped out in front of a vehicle and stood upon the flag. American service personnel regarded Percy's actions as a desecration of their national flag.
The district judge concluded that the restrictions and penalties attached by s. 5 of the 1986 Act to Percy's right to freedom of expression under article 10.1 of the Convention was necessary in a democratic society for the protection of the rights of others under article 10.2 and proportionate to the need to protect such rights.
Percy submitted that flag denigration was a form of protest activity renowned the world over and had been afforded protection in other jurisdictions including in the USA itself: see Texas v Johnson (1989) 491 US 397.
It was significant that ss 5(3)(c) and 6(4) of the 1986 Act specifically provided for there to be proof of mens rea and for the defence of reasonableness. The provisions as enacted and applied by the courts contained the necessary balance between the right of freedom of expression and the right of others not to be insulted and distressed. The court had to presume that Percy's conduct in relation to the American flag was protected by Article 10 unless and until it was established that a restriction on her freedom was strictly necessary.
The district judge was entitled to find that there was a pressing social need in a multicultural society to prevent the denigration of objects of veneration and symbolic importance for one cultural group.
The next stage of the task was to assess whether or not the interference with Percy's right to free expression by criminal prosecution, by using her own property to convey a lawful message, was a proportionate response to that aim. The fact that Percy could have demonstrated her message in a way which did not involve use of the national flag of symbolic significance to her target audience was only one factor to be taken into account when determining the overall reasonableness and proportionality of her behaviour and the state's response to it. The district judge had given insufficient weight to the presumption in favour of Percy under Article 10. Accordingly, the conviction would be quashed.
The Decision
A conviction for using threatening, abusive and insulting words or behaviour likely to cause harassment alarm or distress, contrary to s. 5 of the Public Order Act 1986, where Percy defaced the flag of the United States, was incompatible with Article 10 of the European Convention on Human Rights. The Queen's Bench Divisional Court so held in a reserved judgment, allowing the appeal by the claimant, Percy, by way of case stated, against a conviction on 18 May 2001 for using threatening, abusive and insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, contrary to s. 5 of the 1986 Act, in respect of Percy's behaviour at a US Air Force base at RAF Feltwell.
Comment
Unlike the other racially aggravated forms of public order offences, the offence under s. 5 remains triable summarily, even if aggravated by the conditions set out in s. 28 of the Crime and Disorder Act 1998 (s. 31(5).
The racially aggravated circumstances set out at s. 28(1)(a) of the Crime and Disorder Act 1998 deal with situations where the defendant demonstrates racial hostility at the time of (or immediately before or after) committing the offence, towards the victim. To clarify such situations in relation to the racially aggravated form of the above offence, s. 31(7) provides that the person 'likely to be caused harassment, alarm or distress' will be treated as the 'victim'.
Provision is also specifically made for alternative verdicts in relation to the above public order offence (see s. 31(6) CDA Act. 'If on a trial on indictment, the jury find the accused is not guilty of the racially aggravated form of the offence, they may find him guilty of the basic offence.'
'Disorderly' is not defined and ought to be given its ordinary everyday meaning. It need neither be shown that the disorderly behaviour is itself threatening, abusive or insulting, nor that it brought about any feelings of apprehension in the person to whom it was directed Chambers v DPP 11995] Crim LR 896. The wording of s. 5 is not limited to rowdy behaviour and will extend to any behaviour that could be construed as threatening, abusive or insulting. 'Insulting' has been held by the Divisional Court to include the actions of a market trader who installed a hidden video camera to film women trying on swimwear, Vigon v DPP (1998) 162 JP 115, PJ 71 (4), October/December 1998.
A closely connected subject, in more ways than one, is 'A Breach of the Peace'. Could this be the same Percy (Percy v DPP (1994) The Times, 13 December QBD; PJ 68 (3) July/September 1995, who has previously featured in law reports? Whether or not it is - we can remind ourselves of the previous case where a 'Percy' was arrested at RAF Alconbury as a trespasser. The case concerned whether violence was required for binding over.
Before 1981 a breach of the peace had long been a vague and undefined legal concept. Police officers tended to equate it with literally any sort of disturbance.
Since 1981 the Police Training Manual has quoted R v Howell [19811 73 CA R.31; (1981) The Times, 13 April as the authority for defining a breach of the peace, Percy v DPP (1994) The Times, 13 December QBD tells us that violence is required before magistrates can exercise their powers of binding over under s.115 of the Magistrates' Courts Act 1980.
Howell tells us, 'There is a breach of the Peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.'
The facts of Percy v DPP (the original case) were that that a complaint had been laid against Percy, that she had unlawfully conducted herself by entering RAF Alconbury as a trespasser in circumstances whereby a breach of the peace was reasonably apprehended.
In Bugg v DPP [1993] QB 473 the Divisional Court held that the RAF Alconbury by-laws were ultra vires (beyond the powers), consequently it was not possible to proceed against Percy on those charges.
As originally laid, the matters complained of were said to be 'contrary to common law', but that was amended at trial to read 'pursuant to the Justices of the Peace Act 1361' in order to enable the justices to make use of their powers under that Act if they did not find the complaint proved.
The justices found that the complaint had been proved and that it was necessary to bind Percy over to prevent any recurrence of the behaviour which had led to the complaint.
Percy said that she had gone peacefully and non-violently to protest about the abuse of by-laws relating to the base and the continuing expansion of the war machine.
Before the justices, the prosecution's contention had been, not that Percy would herself be guilty of any violent conduct, but that personnel on the base, in particular United States servicemen who might be armed, might react to her presence in such a way as would cause a breach of the peace.
The justices' order made it clear that they were exercising their powers under s. 115 of the 1980 Act. Certain issues were discussed. First, what had to be established to constitute a breach of the peace? Second, were the justices entitled to find that what Percy had done could have led to a breach of the peace?
In R v Howell it was made clear that there had to be violence or threatened violence for there to be a breach of the peace to justify an arrest.
There was, in the court's judgment, no justification for giving a different meaning to breach of the peace when used in the context of justices' powers to bind over to keep the peace.
There were some dicta in R v Chief Constable of Devon and Cornwall, ex p. Central Electricity Generating Board [1982] QB 458, 471 and R v Sandbach, ex p. Williams [1935] 2 KB 192, 196 which suggested a wider meaning to the expression.
Furthermore, in so far as Lord Justice Denning in Everett v Ribbands [1952] 1 KB 112 appeared to or equated a breach of the peace to the commission of a criminal offence or breaking the law of the land, the court thought he went too far.
In the court's judgment, breach of the peace was limited to violence or threats of violence as set out in R v Howell and any observations which might indicate something wider ought not to be followed.
The submission that there should have been evidence presented to the justices that a breach of the peace was apprehended by someone present at RAF Alconbury was not accepted.
However, the court agreed that there was no evidence put before the justices which entitled them to find that violence was the natural consequence of any of Percy's actions
Similarly, when looking to the possibility of further trespass by Percy, the justices had to be satisfied that there might be violence. There had to be a real risk, not a mere possibility of a breach of the peace.
The justices' finding that Percy's conduct could have provoked others to violence, apart from being unsupported by the evidence, was too vague to justify making any order.
It was highly improbable that the non-violent acts of trespass committed by Percy would provoke trained personnel to violent reaction.
The court held that violence or the threat of violence was required before justices could exercise their powers under s. 115 of the Magistrates' Courts Act 1980 to bind someone over to keep the peace.
Accordingly, a civil trespass, on its own, could not justify a binding over order. The criminal standard of proof should be applied to applications to bind someone over for a breach of the peace. Appeal allowed.
As it says in Percy, cases before and after Howell, viz, Everett v Ribbands (1952) and R v Chief Constable of Devon and Cornwall (1982), have suggested a wider meaning to a breach of the peace. Howell has stood the test of time and the very clear definition given remains good law.
There have been a number of well-reported cases in recent years on Breach of the Peace which have all been reported in Police Journal.
Meaning Of Article 10
Article 10 guarantees the 'freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers'. In Handyside v United Kingdom (1976) 1 EHRR 737 at para. 49 the court sought to define the meaning of freedom of expression for the purposes of Article 10:
Freedom of expression constitutes one of the essential foundations of . . a [democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to para. 2 of Article 10, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'.
At para. 48 they said, 'the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights'; it goes hand in hand with a European supervision. The extent of this supervision will vary according to such factors as the nature of the Convention right in issue, the importance of that right for the individual and the nature of the activities involved in the case.
Article 10:
(a) protects a wide range of types of expression, including political (such as distribution of political leaflets before an election (Bowman r United Kingdom (1998) 26 EHRR 1);
(b) journalistic (e.g. refusal to disclose journalistic sources (Goodwin v United Kingdom (1996) 22 EHRR 123));
(c) artistic (e.g. Muller v Switzerland (1988) 13 EHRR 212; Wingrove v United Kingdom (1996) 24 EHRR 1); and
(d) commercial (e.g. Barthold v Germany (1985) 7 EHRR 383 (vets' advertising); Colman r United Kingdom (1993) 18 EHRR 119 (doctors' advertising); expression of view (Goodwin v United Kingdom (1996) 22 EHRR 123).
What is Freedom of Speech?
I think, notwithstanding European conventions, that this decision is wrongly decided. 'Everyone has the Right to Freedom of speech' - do they? I recall an expression from the past: 'Freedom of speech does not allow a man to stand up in a crowded cinema and shout "Fire"': Section 5 1986 uses the word 'likely', which means 'probable' or `possible': the accused must take his victim as he finds him and there is no excuse that the victim is of a particularly sensitive disposition, or particularly vulnerable, for reasons unknown to him/her.
If the conduct is unlikely to harass, alarm or distress a person without the special sensitivity it will normally be necessary to produce the victim as a witness to testify as to that sensitivity.
I joined the Royal Navy as a boy of 15 and would class myself along with the US Service personnel as having a special sensitivity towards anyone defacing the flag, in my case, the White Ensign, something I still feel a sense of pride in when I see it flying - the same goes for the Union Flag (or Union Jack, as called when flown from the jackstaff of one of Her Majesty's Ships whilst in harbour).
What about our basic principles: are we to lose them one by one to a European convention?
Upon joining the Royal Navy I was told that there were certain things you did not do on Her Majesty's ships - on the messdeck you did not discuss politics or religion. The last restriction, an unwritten rule, meant you didn't cause offence or get into arguments: it was by modern standards a restriction on freedom of speech, but a necessary one.
Americans have since September 11th rallied to their flag; their flag represents a Union as our's does; it seems a pity that two great nations should find courts allowing a European convention to destroy a deep-felt sense of pride.
When Mr Wendell Wilkie arrived in London on 2 January 1941, he handed to Mr Churchill a verse from Longfellow written in the President's handwriting together with Mr Roosevelt's comment that 'it applies to your people as it does to us'.
The Longfellow verse reads:
Sail on, o Ship of State,
Sail on, o Union, Strong and Great!
Humanity with all it's fears,
With all the hopes of future years,
Is hanging breathless on thy fate.
Leave us our pride!
Rob Jerrard