Freedom to be offensive defended by court
Redmond-Bate v Director of Public Prosecutions
(1999) The Times, July 28 1999 QUEEN'S BENCH DIVISIONAL COURT
The Facts
On October 2, 1997 Mrs Alison Redmond-Bate had been preaching on the steps of Wakefield Cathedral to passers-by in the street.
In response to a complaint, PC Tennant approached the her and other woman preachers. No crowd had gathered, but he warned them not to stop people and since they were not stopping people he left.
PC Tennant later returned to find that a crowd of in excess of a hundred people had gathered. Some members of the crowd were showing hostility towards the speakers.
Fearing a breach of the peace, PC Tennant asked the women to stop preaching and when they refused arrested them for a breach of the peace.
The Law
The underlying question was whether it was reasonable for PC Tennant, in light of what he perceived, to believe that Mrs Redmond-Bate was about to cause a breach of the peace.
The test of reasonableness of the constable's action was objective in the sense that it was for the court to decide not whether the view taken by the constable fell within the broad band of rational decisions but whether in the light of what he knew and perceived at the time the court was satisfied that it was reasonable to fear an imminent breach of the peace.
Thus, although reasonableness of belief, as elsewhere in the law of arrest, was a question for the court, it was to be evaluated without the qualification of hindsight.
The next critical question for the constable, and in turn for the court, was where the threat was coming from, because it was there that the preventive action must be directed.
The Court referred to Beatty v Gilbanks (1882) 9 QBD 308, Wise v Dunning [1902] 1 KB 167, Duncan v Jones [1936] 1 KB 218, Nicol v DPP The Times November 22, 1995; [1996] Crim LR 318, R v Morpeth Justices, Ex parte Ward (1992) 95 Cr App R 215, Percy v DPP [1995] 1 WLR 1382; (Reported Police Journal Vol LXVIII No 3 July/Sept 1995) Steel v United Kingdom (The Times October 1, 1998; (1998) 5 BHRC 339 and articles 9 and 10 of the European Convention on Human Rights (1953, Cmd 8969).
On the facts the Court could see no lawful basis for the arrest or therefore the conviction.
Free speech included not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it did not tend to provoke violence. Freedom only to speak inoffensively was not worth having.
What Speakers' Corner, where the law applied as fully as anywhere else, demonstrated was the tolerance which was both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagreed, even strongly, with what they heard.
From the condemnation of Socrates to the persecution of modern writers and journalists, our world had seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights had been to set close limits to any such assumed power.
We in this country continued to owe a debt to the jury which in 1670 refused to convict the Quakers, William Penn and William Mead, for preaching ideas which offended against state orthodoxy.
To proceed as the crown court had done, from the fact that the three women were preaching about morality, God and the bible, the topic not only of sermons preached on every Sunday of the year but of at least one regular daily slot on national radio, to a reasonable apprehension that violence was going to erupt was, with great respect, both illiberal and illogical.
The situation perceived and recounted by PC Tennant did not justify him in apprehending a breach of the peace, much less a breach for the peace for which the three women would be responsible. No more were the magistrates justified in convicting the defendant nor the crown court in upholding the conviction.
The constable was not acting in the execution of his duty when he required the women to stop preaching and the defendant was therefore not guilty of obstructing him in the execution of his duty when she refused to comply.
The Decision
Free speech included not only the inoffensive but also the irritating, the contentious, the eccentric, the heretical, the unwelcome, and the provocative, as long as such speech did not tend to provoke violence.
The Queen's Bench Divisional Court so held in allowing an appeal by Wakefield Crown Court, on January 13, 1999, of an appeal by Mrs Alison Redmond-Bate against her conviction by Wakefield Justices, on February 3, 1998, of obstructing a police officer in the execution of his duty, contrary to section 89(2) of the Police Act 1996.
Comment
In Percy v DPP, discussed by the Court it was decided that violence was required for binding over. The case is fully Reported at [1995] 1 WLR 1382; & Police Journal Vol LXVIII No 3 July/Sept 1995).
In Nicol and Another v DPP (1995) The Times, 22 November the Court held that before a person's conduct could be supposed to have been provoking violence so as to be a breach of the Peace it must be unreasonable.
Another case worth looking at again is Foulkes v Chief Constable of Merseyside Police (1998) The Times, June 26 COURT OF APPEAL Held that an apprehended breach must be imminent. This is Reported in Police Journal, Vol LXXII No 1 January/March 1999, page, 81.
Where no breach of the peace had taken place in his presence but a constable exercised his power of arrest because he feared a future breach of the peace, such apprehended breach must be about to occur or be imminent.
In the comments on Foulkes at page 83 of Police Journal, Vol LXXII No 1 January/March 1999the case of G V Chief Superintendent of Police, Stroud (1986) The Times, November 29 QBD; HC QBD (1988) 86 Cr App R 92; [1987] Crim LR 269was discussed.
Hope was expressed then that Judges may have taken the case as a guide when they considered , "Whether a PC's decision is reasonable" A crowd of 100 shouting hostilities may seem different to a PC on the ground, than to a Judge in the cool calm safety of the Courtroom. The Report says, "Law of arrest was a question for the court", Is it not a question for a police officer before it arrives at court?
In Stoud the Court said, "In reviewing the reasonableness of a constable's belief that a breach of the peace was likely to occur, allowance had to be made for the circumstances in which a constable had to make a spur of the moment decision in an emergency. Therefore a mere disturbance could amount to a likelihood of a breach of the peace."
The difficulty lies in the charge, Mrs Redmond-Bate was charged with obstructing the officer in the execution of his duty - the court say he was not acting in the execution of his duty; not an easy decision, however it is interesting to note that both the magistrates and Crown Court placed their faith in the officer.
It is worth repeating that for conduct to constitute a breach of the peace, the conduct must involve violence or the threat of violence. The violence need not be perpetrated by the defendant, provided that the natural consequence of his conduct, was that others would be provoked to violence Percy v DPP [1995] Crim LR 714.
Rob Jerrard