5 October 2013

Percy v DPP: Introducing Free Expression's Format

This post offers an analysis of Percy v DPP. My aim is to introduce the structure of ECHR Art 10 and the idea of appeals by way of case stated with an example.

Art 10 is similar in format to Arts 8–11, so is a good starting point for learning about human rights. Case-stated appeals seem much more procedurally complicated than they need to be. This post tries to introduce those procedural aspects in a way that elucidates the complications. These aims will be explored further in future posts.

High Court of Justice
Queen's Bench Division
Divisional Court

[2001] EWHC Admin 1125

21 December 2001

Percy = Claimant/Appellant
Director of Public Prosecutions = Defendant/Respondent

Lord Justice Kennedy
Mrs Justice Hallett

1. Introduction

The appellant trampled a US flag in front of Americans. This behaviour was part of a legitimate protest.

The appellant was convicted under the Public Order Act 1986 s 5, which proscribed insulting expression. The appellant appealed because Art 10 should protect all expression. In the appeal--heard in a High Court Divisional Court--Kennedy LJ and Hallett J had to answer two questions.
  1. Considering ECHR Art 10, was the conviction sound?
  2. If the conviction was unsound, should it be quashed?
The Court (ie Kennedy LJ and Hallett J) answered 'no' to the first, and 'yes' to the second. The conviction, therefore, was incompatible with Art 10 and was quashed; the appellant won the appeal.

2. The Law

Art 10.1 ensures the right to free expression. Art 10 is qualified by Art 10.2:
  • The free expression-right may be interfered with in some circumstances:
  • An interference is only compatible with Art 10 if it is…
    • Prescribed by law;
    • Necessary in a democratic society;
    • For a legitimate aim; and
    • Proportionate to the necessity and aim(s).

Trampling a flag is expression because it was done in protest against US military action. The interference in Percy was the conviction. The conviction proceeded under the Public Order Act 1986 s 5, and so was prescribed by law. That conviction's aim--to protect other individuals' venerated objects--was legitimate. However necessary it is in a democratic society to protect other individuals' rights 'not to be insulted and distressed', an interference with Art 10 must be proportionate to the desired aim (at [25]).

In this case, the interference was rather heavy--a criminal conviction may deprive an individual of personal liberty, finances, and the ability to be accepted in society once a criminal stigma is attached. The legal question concerned whether the interference was too heavy considering that the wrong--insulting others--was also the expression of 'a lawful message' (at [30]).

2.1 Courts and Judges

The ratio will be clearer if I discuss the judges and courts first. Reading the decision may be tricky for students because the internal references to who says what and when are a little vague.
  • 'The Court' is Kennedy LJ and Hallett J. When 'The Court' is written, it is more or less equivalent with the first person, 'we'. 'The Court', because the judgment is a case-stated appeal, is a sort of 2-person, bespoke, temporary division created in the High Court solely for the purpose of deciding this case. Case-stated appeals may not always be two judges, and may not always be in the High Court.
  • The 'District Judge' is 'District Judge Heley'. He is the judge who heard the case initially in the Magistrates' Court. It is District Judge Haley's decision that is quashed in this appeal. Quashing is a remedy. If a decision is quashed, it is no more; appellants are no longer convicted for quashed convictions.

3. Ratio Decidendi

The conviction was quashed because the District Judge's reasoning was inadequate. The District Judge only considered one factor to determine whether the interference was proportionate. That factor was that the appellant could have expressed discontent in another, non-insulting manner.

As there are other relevant factors, any decision that results from an examination of only one cannot be a proper consideration of proportionality; that is, cannot properly be said to justify a conviction's proportionality.

Unless every factor is considered, it is impossible to know whether an absent factor would have been enough to render either (i) the expression's manner proportionate to its message (some messages are only heard if shouted), or (ii) the interference's weight is proportionate to its aim (some aims are more important than others so heavier interferences are justifiable). As the Court noted, Art 10-questions are questions of balance between competing rights. In Percy the expresser's rights triumphed.

4. Reform

The law has changed since Percy. Insulting is no longer part of a section 5 offence. The Crime and Courts Act 2013 s 57 removed 'insulting' from Public Order Act 1986 ss 5(1) and 6(4). Even the initial conviction in Percy, then, would not have occurred under the new law.

The CPS--in an effort to deter--could still try to prosecute for almost identical behaviour by calling it 'abusive' to keep such behaviour within the Public Order Act 1986's purview. Such CPS action would be capricious, but it is a possible tactic if the government felt they had to stop a spate of deplorable expression.

5. Conclusion

It should be evident in the above discussion that several steps are taken when Art 10 applies. The contentious step in this case was a little vague--perhaps due to a tacit reluctance to contemplate a prosecution simply for insulting another person. Nevertheless, Kennedy LJ and Hallett J (who is now Hallett LJ), concentrated on an interference's necessity and proportionality. They decided in such a way as to render the judgment still valuable today. That is, to be insulting is not a good enough reason upon which to convict.

Created: 5 October 2013. Version 1.0.

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