Freedom of expression and the Public Order Act 1986

Posters at student halls

We were concerned to learn that Manchester Metropolitan University (‘MMU’) recently instructed students at Birley and Cambridge Halls to remove posters they had created to protest about the so-called “lockdown”. We welcome MMU’s subsequent apology and explanation that it was Greater Manchester Police who had said that any posters which break the law must be removed. Of course, that leaves open the question of which posters – if any – are illegal.

The law in this area is relatively complex, but we have done our best to summarise it below. If you have been asked to remove a poster or have even been charged with an offence, please contact us so that we can give you advice that is tailored to the circumstances of your case.

The offence most likely to be relevant is the offence under section 5 of the Public Order Act 1986 (‘the Act’), which provides that a person is guilty of an offence if he “displays any writing, sign or other visible representation which is threatening or abusive within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.”

Threatening or abusive

The original wording of the Act was “threatening, abusive or insulting”. The word “insulting” has an inglorious history of being used to suppress conduct that should not have been criminalised. Examples include Masterson v Holden [1986] 1 WLR 1017, in which the behaviour of two gay men who kissed and cuddled on Oxford Street at 1.55am was held capable of being “insulting” to two heterosexual men who objected; and Hammond v DPP, in which a similar finding was reached in relation to the words “Stop Immorality. Stop Lesbianism. Stop Homosexuality”. The amendment of section 5 in 2014 to remove the possibility of prosecution for conduct/writing that is merely “insulting” represented a tentative step towards liberalisation.

In Masterson, it was said that words cannot be “insulting” unless there is a human target at which they strike, and it has been suggested that the same must apply to writing or signs said to be “threatening or abusive”.

In Abdul v DPP, the defendants were protesting against British military involvement in Iraq and Afghanistan. They displayed placards and shouted accusations to the effect that British soldiers were murderers, rapists and baby-killers and should go to hell. Unsurprisingly, the court found that this language was abusive, notwithstanding the protestors right to freedom of expression under Article 10 of the European Convention on Human Rights (as to which, see further below).

Equally unsurprisingly, the use of notoriously derogatory racial epithets in cases such as DPP v Smith is generally accepted to be derogatory.

There have been two recent examples of political speech running into the criminal law: the driver of a vehicle with the words “Bollocks to Brexit” on the side was forced to remove the words by Essex Police, and Jessie-Lu Flynn was warned by officers from British Transport Police that her “Fuck Boris” t-shirt could be considered abusive and asked to cover up. In neither case was the language tested in court, though it is notable that British Transport Police subsequently accepted that Ms Flynn was not in breach of the Act. Our view is that language of this nature is unlikely to amount to abusive language for the purposes of the Act.

Within the sight of a person likely to be caused harassment, alarm or distress

It is important to note that:

• The prosecution does not have to prove that a person “likely to be caused harassment, alarm or distress” actually saw the poster – merely that the poster was within the sight of such a person: Taylor v DPP. It is not sufficient that someone could have arrived on the scene if no one was in fact present when the poster was displayed: Holloway v DPP.

• The prosecution only has to prove that a person was likely to be caused harassment, alarm or distress by the poster and not that anyone was actually caused harassment, alarm or distress. Of course, it may be difficult for the prosecution to establish likelihood without a statement from a person who says they were caused harassment, alarm or distress.

Somewhat controversially, it has been suggested in some of the cases that police officers “are expected to show a degree of resilience” because they are so regularly abused as part of their job. It may therefore be more difficult for a prosecution to succeed if the only person who gives evidence of feeling harassed, alarmed or distressed by a poster is a police officer.

Both parties inside a dwelling

The offence cannot be committed if the person displaying the poster is inside a dwelling and the person likely to be caused harassment, alarm or distress is also inside either the same dwelling or a different dwelling. This provision will not be of much comfort to the students, given that the posters photographed by the press were visible to people on the street.

The mental element of the offence

Section 6 of the Act requires the prosecution to prove that the person displaying the poster intends the poster to be threatening or abusive or is aware that it may be threatening or abusive. As is usual, the prosecution must be able to prove this beyond a reasonable doubt.

Defences

It would be a defence for anyone displaying a poster to prove that they had no reason to believe that there was anyone within sight who was likely to be caused harassment, alarm or distress or that they were inside a dwelling and had no reason to believe that the poster would be seen by anyone outside. Those defences probably do not require any further elaboration.

It would also be a defence to prove that the displaying of the poster was reasonable. When considering reasonableness, the court must have regard to Article 10 of the European Convention on Human Rights, which states that everyone has the right to freedom of expression. This right is not unfettered – it may be restricted in a manner prescribed by law and to the extent necessary in a democratic society – but any such restrictions will be narrowly construed and a “pressing social need” must be shown.

In Percy v DPP, a woman protesting outside a US air base who defaced (her own) American flag had her conviction under section 5 quashed by the High Court, where she was represented by one K Starmer. While there was a need to protect foreign visitors such as US nationals from harassment, alarm and distress, that had to be balanced against Ms Percy’s right to express her political opinion. The mere fact that she could have expressed her opinion in a less offensive manner did not mean her conviction was a proportionate interference with her Article 10 rights.

In Norwood v DPP, the defendant displayed a poster bearing the words “Islam out of Britain” and “Protect the British People”, together with an image of the World Trade Centre in flames on 11 September 2001 and a crescent and star surrounded by a prohibition sign. The court held that the poster was “a public expression of attack on all Muslims in this country, urging all who might read it that followers of the Islamic religion here should be removed from it and warning that their presence here was a threat or a danger to the British people”. The court’s approach to the reasonableness defence relied heavily on the finding by the court below that the defendant’s conduct was motivated by hostility towards Muslims as a religious group. In those circumstances, it was said, it will generally be difficult for a defendant to establish reasonableness, even with the assistance of Article 10.

So what about the student’s posters?

The posters pictured in this article do not in our view even approach the threshold for criminal liability. While the word ‘Fuck’ in the ‘Fuck Corona’ poster might cause offence to some, it obviously does not strike at a human target and it is hard to imagine that anyone would be offended by the underlying sentiment. In the unlikely event that the prosecution could prove the factual and mental elements of the section 5 offence, we consider that students would have an excellent chance of establishing the reasonableness defence. The posters are a relatively restrained expression of protest against the lockdown restrictions and fall well within the scope of the expression that Article 10 is intended to protect.