REDMOND-BATE v. DIRECTOR OF PUBLIC PROSECUTIONS [1999] EWHC Admin 732 (23rd July, 1999)

Case No: CO/188/99

IN THE SUPREME COURT OF JUDICATURE
QUEEN’S BENCH DIVISION
(DIVISIONAL COURT)

Royal Courts of Justice
Strand, London, WC2A 2LL

Friday, 23 ^rd July, 1999

B e f o r e :

LORD JUSTICE SEDLEY
and
MR. JUSTICE COLLINS

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	REDMOND-BATE	Appellant
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	DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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Handed-down Transcript of Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040/0171-404 1400
Fax No: 0171-831 8838
(Official Shorthand Writers to the Court)

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1. MR. P. ROUSE (instructed by Finn Gledhill, Halifax, West Yorkshire) appeared on behalf of the Appellant).

2. MR. C.B. KEALY (instructed by Crown Prosecution Service, Wakefield, Yorkshire) appear on behalf of the Respondent).

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J U D G M E N T
(As approved by the Court)
(Crown Copyright)

Friday, 23rd July 1999

LORD JUSTICE SEDLEY:

The case

1. The Appellant is one of three women who would not, I think, object to being described as Christian fundamentalists. They belong to a small organisation called Faith Ministries who, among other things, preach to passers-by in the street. They had agreed with the police that they would do this on occasion from the steps of Wakefield Cathedral.

2. On Thursday 2 ^nd October 1997, not long after midday, the three women were preaching from the steps of Wakefield Cathedral. An unidentified couple complained about them to PC Tennant, who was on uniformed foot patrol. He went to the Cathedral steps. No crowd had gathered, and he warned the three women not to stop people. Since they were not doing so, he left. Twenty minutes later he returned to find that a crowd of more than a hundred had gathered. Another of the women was now preaching, and some of the crowd were showing hostility towards them. Fearing a breach of the peace, PC Tennant asked the women to stop preaching, and when they refused to do so arrested them all for breach of the peace.

3. The appellant, Alison

Redmond

-Bate, was subsequently charged with obstructing a police officer in the execution of his duty. She was convicted, and her appeal to the Crown Court was dismissed. By case stated she now appeals to this Court on the following questions of law:
(1) In the circumstances of this case, was it reasonable for the police officer to arrest the appellant who had not conducted herself in a manner which would be said to constitute an offence under the Public Order Act 1986 when any apprehension by the police officer of violence or threat of violence which could be said to likely to breach criminal law emanated from others present?

(2) Whether it was proper for the Court to conclude that such actual or threatened violence was or would be the natural consequence of the appellant’s actions?

3. These questions are not ideally formulated. It has emerged by common consent in the course of argument that the underlying question is whether it was reasonable for PC Tennant in the light of what he perceived to believe that the appellant was about to cause a breach of the peace. To explain why, it is necessary first to consider the present law and then to look in a little more detail at the facts.

The law

4. Section 89(2) of the Police Act 1996 makes it an offence wilfully to obstruct a police constable in the execution of his duty. Among the duties of a constable is the prevention of breaches of the peace. A member of the public who fails to comply with a reasonable request properly made by a constable to this end is therefore guilty of obstructing the constable in the execution of his or her duty.

5. Counsel are agreed, and I agree, that the test of the reasonableness of the constable’s action is objective in the sense that it is 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 is 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, is a question for the court, it is to be evaluated without the qualifications of hindsight.

6. But a judgment as to the imminence of a breach of the peace does not conclude the constable’s task. The next and critical question for the constable, and in turn for the Court, is where the threat is coming from, because it is there that the preventive action must be directed. Classic authority illustrates the point. In Beatty v. Gilbanks (1882) 9 QBD 308 this Court (Field J. and Cave J.) held that a lawful Salvation Army march which attracted disorderly opposition and was therefore the occasion of a breach of the peace could not found a case of unlawful assembly against the leaders of the Salvation Army. Field J., accepting that a person is liable for the natural consequences of what he does, held nevertheless that the natural consequences of the lawful activity of the Salvation Army did not include the unlawful activities of others, even if the accused knew that others would react unlawfully. By way of contrast, in Wise v. Dunning [1902] 1 KB 167 a Protestant preacher in Liverpool was held by this Court (Lord Alverstone CJ, Darling and Channell JJ) to be liable to be bound over to keep the peace upon proof that he habitually accompanied his public speeches with behaviour calculated to insult Roman Catholics. The distinction between the two cases is clear enough: the reactions of opponents would in either case be unlawful, but while in the first case they were the voluntary acts of people who could not properly be regarded as objects of provocation, in the second the conduct was calculated to provoke violent and disorderly reaction.

7. The facts in Duncan v. Jones [1936] 1KB 218 were a sharper example of the second category: the appellant was about to make a public address in a situation in which the year before a disturbance had been incited by her speaking. This Court (Lord Hewart CJ., Humphreys and Singleton JJ.) cast its reasoning somewhat wider than – as it seems to me – is consonant with modern authority. Lord Hewart CJ., without explanation, described the decision in Beatty v. Gilbanks as “somewhat unsatisfactory” – I confess that I do not understand why: it may have had to do with the Irish cases to which Mr. F.E. Smith, the appellant’s counsel, had drawn the court’s attention in Wise v. Dunning, citing Dicey in order to distinguish and criticise them. That Beatty v. Gilbanks was distinguishable, as Lord Hewart CJ went on to hold, is clear. But Humphreys J. added that the case had “nothing to do with the law of unlawful assembly”. For reasons to which I now turn, I respectfully disagree. Although public order is now largely governed by statute, the law of unlawful assembly, upon which Beatty v. Gillbanks was decided, depended upon the liberty of the Salvation Army to march peacefully, albeit in large numbers and with much noise (described with perhaps a touch of colour in paragraph (f) of the case stated by the Weston-super-Mare Justices) through public streets: unless their doing so either amounted to a breach of the peace or was in the nature of things going to cause one, they were guilty of no offence. Exactly the same was true of Mrs. Duncan, with this qualification: she, like the present appellant, was charged with police obstruction, raising the question not directly of the quality of her conduct but of the reasonableness of the constable’s apprehension of it. What the constable had to evaluate however, in that case as in this, was the reality of the risk of a breach of the peace. Where this case differs from Duncan v. Jones and resembles Beatty v. Gilbanks is in the source of the threat to public order: in the former case, on the Justices’ findings, it was the appellant herself; in the present case the critical issue, if there was a true threat of breach of the peace, was where the threat was coming from.

8. In R. v. Nicol and Selvanayagam (DC, 10^thNovember 1995, reported only in summary at [1995] Times LR 607 and [1996] Crim LR 318) Simon Brown LJ., with whom Scott Baker J. agreed, had to consider a bind-over case based on a finding that each appellant had been guilty of conduct whereby a breach of the peace was likely to be occasioned. The appellants, concerned about cruelty to animals, had obstructed an angling competition by seeking to distract the fish and to dissuade the anglers from catching them. No violence was used or threatened, but in spite of police requests to desist the appellants continued until they were arrested. Simon Brown LJ. explained the authorities in this way:

"Before the court can properly find that the natural consequence of lawful conduct by a defendant would, if persisted in, be to provoke another to violence, it should, it seems to me, be satisfied that in all the circumstances it is the defendant who is acting unreasonably rather than the other person ... [A]s it seems to me, some clear interference at least with the rights ... of others is bound to characterise any conduct of which it can properly be said that it would naturally provoke violence in others. Putting it another way, the Court would surely not find a section 115 complaint proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as, of course, it would be if the defendant’s conduct was not merely lawful but such as in no material way interfered with the other’s rights. A fortiori if the defendant was properly exercising his own basic rights, whether of assembly, demonstration or free speech."

4. Simon Brown LJ. cited the words of Watkins LJ. in R. v. Howell [1982] 2 QB 416, 426:

"... we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done. There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks on a person’s body or property."

9. The critical difference between the two classes of case – those where the defendant is responsible for the threat to the peace and those where somebody else is – emerges in the contrast between two other recent decisions cited in Nicol and Selvanayagam. In R. v. Morpeth Ward Justices, ex parte Ward (1992) 95 CAR 215 a bind-over was upheld on people who had noisily and turbulently disrupted a pheasant shoot; whereas as in Percy v. DPP [1995] 3 All ER 124 a bind-over on a woman who kept climbing over the perimeter fencing into a military base was quashed because there was no sensible likelihood that trained security personnel would be provoked by her conduct to violence. I stress the words “to violence” because it is common ground that this is what provocation amounting to a breach of the peace must instigate: noise or disorder are not enough.

10. The foregoing is sufficient to enable us to deal with this case, but I believe that it is important for us before doing so to look at the human rights dimension of it. Parliament has now enacted the Human Rights Act 1998, requiring every public authority, including the police and the courts, to give effect to the scheduled Convention rights unless statutory provision makes it impossible to do so. The bulk of the Act is not yet in force: Ministers have announced their intention to bring it into force on 2^ndOctober 2000. But in this interregnum it is far from immaterial. Not only is it now accepted that the common law should seek compatibility with the values of the Convention insofar as it does not already share them; executive action which breaches the Convention already runs the risk, if uncorrected by law, of putting the United Kingdom in breach of the Convention and rendering it liable to proceedings before the European Court of Human Rights. There is therefore, and has been for a long time, good reason for policing and law in this field to respect the Convention.

11. Articles 9 and 10 of the Convention read:

" Article 9
Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religious beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10
Freedom of Expression

(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 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."

12. For the appellant, Mr. Rouse initially placed Article 9 in the forefront of his argument. When the Act comes into force, Article 9 may become prominent in a case such as the present because of the presence in the Act of Section 13, which reads:

"(1) If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion [ie. Article 9] it must have particular regard to the importance of that right. "

5. Without anticipating the problem which may arise of a conflict between section 13 and Article 17, it is sufficient that for the present section 13 cannot be relied on to prioritise Article 9 rights, with the result that in a case like the present they do not usefully add to the rights recognised by Article 10.

13. To speak of rights at all in this context is to recognise the constitutional shift which is now in progress. The old order is crystallised in Lord Hewart CJ’s opening remarks in his judgment in Duncan v. Jones:

"There have been moments during the argument in this case when it appeared to be suggested that the court had to do with a grave case involving what is called the right of public meeting. I say “called” because English law does not recognise any special right of public meeting for political or other purposes. The right of assembly, as Professor Dicey puts it [Law of the Constitution, 8 ^thEdition, page 499] is nothing more than a view taken by the court of the individual liberty of the subject."

6. A liberty, as A P Herbert repeatedly pointed out, is only as real as the laws and bylaws which negate or limit it. A right, by contrast, can be asserted in the face of such restrictions and must be respected, subject to lawful and proper reservations, by the courts.

14. It is therefore both relevant and reassuring that the European Court of Human Rights in the case of Steel and others v. The United Kingdom (Case No. 67/1997 185111058, judgment given on 23^rdSeptember 1998), following its decision in Benham v. United Kingdom, has accepted that the concept of breach of the peace in English law is sufficiently certain to pass muster under Article 5 because it is confined to persons who cause or appear to be likely to cause harm to others or who have acted in a manner “the natural consequence of which was to provoke others to violence”. Of the five applicants before the court, two had obstructed the lawful activities of others (in one case grouse shooting, in the other civil engineering) but three had peacefully handed out leaflets and manifested their opposition to arms sales in a public place. The first two were held to have been victims neither of a violation of Article 5 nor of Article 10 of the Convention; the other three were held to have been victims of breaches of both. Additionally the court held that the arrest and detention of the latter three protesters (the prosecution had been dropped) had been disproportionate to the aim of preventing disorder or of protecting the rights of others. One may venture the comment that the proportionality decision was no more than another way of saying that in the absence of any ground to anticipate violent or provocative behaviour from the three applicants, there was nothing by which the appropriateness of intervention in the interests of public order could be gauged. This apart, the decision demonstrates that the common law as set out in Nicol and Selvanayagam is in conformity with the Convention.

The appeal

15. The case stated is short on detail, apparently because the evidence contained little. The material findings of fact are these:

"The court found that there had been complaints made by the public. Secondly, that Mrs. Bate (the mother of the appellant) was marching up and down proclaiming in a loud voice. The message concerned morality, God and the Bible. There was a large crowd gathered on the return of the police officer. They were likely to be a mixed audience, some believers, some non-believers, each with equal rights to freedom of expression and freedom of belief. One gang of youths were chanting and swearing and had to be moved off. Others were shouting “bloody lock them up” and “shut up”. The appellant and her two colleagues separately and in turn were each asked to stop and refused and the appellant “took up the banner” and continued to preach in a similar manner after her colleagues had been arrested."

7. From the recital of the evidence it appears that the gang of youths, numbering three, were asked by PC Tennant to move on and did so. The complaint, whatever its content, had been made before PC Tennant first went to the scene and left again, perhaps half an hour before he returned and found a crowd gathered.

16. The Crown Court correctly directed itself that violence is not a natural consequence of what a person does unless it clearly interferes with the rights of others so as to make a violent reaction not wholly unreasonable. Having considered the reports of Duncan v. Jones and Nicol and Selvanayagam v. DPP, it also directed itself correctly that a constable has a power of arrest where he believes that a person is going to commit a breach of the peace, and that "conduct ... such that violence from some third party was a natural consequence” could amount to a breach of the peace. One important ingredient omitted from this formulation is that the constable’s belief must in the court’s own judgment have been a reasonable belief in the situation encountered by the constable. Then follows this:

"Lawful conduct can, if persisted in, lead to conviction for wilful obstruction of a police officer."

8. This proposition has in my judgment no basis in law. A police officer has no right to call upon a citizen to desist from lawful conduct. It is only if otherwise lawful conduct gives rise to a reasonable apprehension that it will, by interfering with the rights or liberties of others, provoke violence which, though unlawful, would not be entirely unreasonable that a constable is empowered to take steps to prevent it.

17. The Crown Court then sets out the grounds of its rulings, first that there was a case to answer and secondly that the appeal should be dismissed, as follows:

"(a) The police officer had reasonable grounds to fear a breach of the peace (being the ground on which he arrested the appellant and her colleagues).

(b) The appellants were acting unreasonably in ignoring the police constable’s request to desist, given the conduct of some of the crowd. This was in view of the combination of

(i) stridency of appellant and her colleagues

(ii) the effect of the preaching on some of the people in the crowd – this was more than good-natured heckling and

(iii) given the police officer’s request to desist.

(c) The message being preached directly concerned the morality of those listening. What more sensitive topic could there be? Therefore we don’t think it wholly unreasonable in this day and age for those listening to feel so pricked by some of the things being said to offer threats of violence. We feel that if the officer had not acted as he did, violence or the threat of violence would have been the next step."

18. Before I set out my conclusion on the present case, two general comments may be in place. Police officers in a situation like this have difficult on-the-spot judgments to make. Because they are judgments which impinge directly on important civil liberties and human rights, the courts must in their turn scrutinise them with care. There is, however, nothing particularly obscure in the law as it now stands and as the Human Rights Act will shortly reinforce it. The question for PC Tennant was whether there was a threat of violence and if so, from whom it was coming. If there was no real threat, no question of intervention for breach of the peace arose. If the appellant and her companions were (like the street preacher in Wise v. Dunning) being so provocative that someone in the crowd, without behaving wholly unreasonably, might be moved to violence he was entitled to ask them to stop and to arrest them if they would not. If the threat of disorder or violence was coming from passers-by who were taking the opportunity to react so as to cause trouble (like the Skeleton Army in Beatty v. Gilbanks), then it was they and not the preachers who should be asked to desist and arrested if they would not.

19. The second general reflection is that the Crown Court was right to be alert to the fact that ours is a society of many faiths and none, and of many opinions. If the public promotion of one faith or opinion is conducted in such a way as to insult or provoke others in breach of statute or common law, then the fact that it is done in the name of religious manifestation or freedom of speech will not necessarily save it. It may forfeit the protection of Articles 9 and 10 by reason of the limitations permitted in both Articles (provided they are necessary and proportionate) in the interests of public order and the protection of the rights of others.

20. But turning to the facts of this case, I am unable to see any lawful basis for the arrest or therefore the conviction. PC Tennant had done precisely the right thing with the three youths and sent them on their way. There was no suggestion of highway obstruction. Nobody had to stop and listen. If they did so, they were as free to express the view that the preachers should be locked up or silenced as the appellant and her companions were to preach. Mr. Kealy for the prosecutor submitted that if there are two alternative sources of trouble, a constable can properly take steps against either. This is right, but only if both are threatening violence or behaving in a manner that might provoke violence. Mr. Kealy was prepared to accept that blame could not attach for a breach of the peace to a speaker so long as what she said was inoffensive. This will not do. Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue 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.

21. To proceed, as the Crown Court did, 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 is going to erupt is, 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 of the peace for which the three women would be responsible. No more were the Magistrates justified in convicting the appellant or the Crown Court in upholding the conviction. For the reasons I have given, the constable was not acting in the execution of his duty when he required the women to stop preaching, and the appellant was therefore not guilty of obstructing him in the execution of his duty when she refused to comply.

22. Although, therefore, the Crown Court’s questions do not pose the key issue, I would answer both questions in the negative and allow this appeal.

MR JUSTICE COLLINS: I agree.

9. LORD JUSTICE SEDLEY: For reasons which have been set out in writing and communicated to the parties, and which are now available in print to the public and the press, this appeal will be allowed.

10. MR KEALY: My Lord, I believe it was agreed on the last occasion that in the event of a successful appeal the costs Order would be the Appellant's costs from Central Funds and a legal aid assessment.

12. LORD JUSTICE SEDLEY: Indeed, the reason we agreed it the last time was to make it unnecessary for anybody to attend this time, but since you are both here it is a pleasure to see you both.

14. LORD JUSTICE SEDLEY: Are your costs below taken care off? Presumably, you were covered by legal aid below?

17. LORD JUSTICE SEDLEY: Very well, thank you both very much, indeed. I should say that in this case there is also a typing error in paragraph 7. I will hand a copy of it down to the shorthand writer.

18. LORD JUSTICE SEDLEY: Mr Rouse, this is back to the case ofRedmond-Bate.

19. MR ROUSE: My Lord, with apologies, might I just re-mention it? I have considered the case again with regards the Appellant's costs. It occurred to me that late in the day she was making a contribution to legal aid in the court below. Therefore, I would ask that a defendant's Costs order extends to the court below?

20. LORD JUSTICE SEDLEY: Does Mr Kealy know that you are making this application?

23. THE ASSOCIATE: My Lord, it may be that the appropriate Order is an Order for any contributions paid to be repaid and any due to be remitted.

24. LORD JUSTICE SEDLEY: We will do it that way, if you are satisfied with it.

25. LORD JUSTICE SEDLEY: Any contributions paid below to be returned to your client and any due to be remitted.

26. MR ROUSE: I am very much obliged and I do apologise for not mentioning it.

27. MR JUSTICE COLLINS: She was not ordered to pay costs as part of the penalty, was she?

30. LORD JUSTICE SEDLEY: If it turns out not, then I think that what you should have is liberty within seven days to notify the Associate, that is the Crown Office, of any further adjustment you require to the Orders here and below on costs. Such notice must also go, of course, to the Crown Prosecution Service and direct to Mr Kealy to ensure that there is no slip. They shall have seven days in which to indicate either agreement or dissent. If there is agreement, then the courts can adjust the Order without the need for us to hear any further argument. If there is dissent, then the matter will have to be relisted, but I very much doubt that there is any room for dissent.

32. LORD JUSTICE SEDLEY: You will let Mr Kealy know what has happened in his absence.