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24 Apr 2019

Article by: Zaki Hashmi

In English law the right to free speech is governed in large part by the provisions of section 5 of the Public Order Act 1986. Under this section it is an offence to use threatening or abusive words within the hearing or sight of a person likely to be caused harassment, alarm or distress.

Section 5 is underpinned by Article 10 of the European Convention on Human Rights, which provides that “everyone has the right to freedom of expression…The exercise of these freedoms…may be subject to such formalities as are prescribed by law and are necessary in a democratic society [including] for the prevention of disorder or crime.”

At a pro-Palestinian rally in June 2017, a few days after the Grenfell Tower fire, Nazim Ali made a speech in which he stated that Israel was a “terrorist state” responsible for the murders of Palestinians; that Zionists were “responsible for the murder of the people in Grenfell”; that Zionists had “murdered British soldiers” in the 1946 bombing of the King David Hotel in Jerusalem; and that supporters of the Israeli state were “Zionist baby killers”.

The Campaign Against Antisemitism (CAA) considered that Mr Ali had committed a section 5 offence, on the basis that what he had said was abusive and had caused alarm and distress, and brought a private prosecution against him. This prosecution was discontinued by the Crown Prosecution Service after concluding that there was insufficient prospect of a trial court finding that Mr Ali’s comments had been abusive. The CAA sought a judicial review in the High Court on the grounds that this decision to discontinue was irrational.

It was noted, and indeed accepted by those acting for the CAA, that a challenge to such a decision of the Crown Prosecution Service would only succeed in very rare cases, and that prosecution decision makers enjoyed considerable discretion when deciding whether or not to proceed with a prosecution.

It was noted by the Court that “the context in which [Mr Ali’s] words were said is of first importance…A primary justification for invoking the criminal law is to prevent a threat to public order”.

In a key passage of the judgment of the Court it was stated by LJ Hickinbottom that:

“I fully understand the distress that Mr Ali’s words may have caused to some of those who were present as counter-demonstrators or simply as passers by, and not just those who were Jewish or who were sympathetic or supportive of the state of Israel. His words may have been intemperate or offensive.

But it is not the task of this court to judge whether they were or may have been distressing or offensive. As the authorities stress, Article 10 does not permit the proscription or other restriction of words and behaviour simply because they distress some people, or because they are provocative, distasteful, insulting or offensive.

We are only concerned with whether, in all the circumstances, the [CPS’s] conclusion that it was not more likely or not that magistrates would convict of a section 5 offence was lawful.”

The Court concluded that the CPS did not act irrationally in reaching its decision that it was not probable that a magistrates court would find Mr Ali’s words abusive.

The key issue for the Court was not whether Mr Ali’s words were likely to cause harassment, alarm or distress (it was accepted that they were), but whether his words were abusive in the circumstances in which they were made. Since his words were not found to be abusive it did not matter that they might have caused alarm or distress.

An interesting contrast with this decision is to be found in the case of Abdul v Director of Public Prosecutions [2011] EWHC 247 (Admin), where similar words were uttered in a very different context.

In that case Munim Abdul spoke as a counter-demonstrator opposing the return of a local army regiment from service in Afghanistan and Iraq. His conviction for a section 5 offence was upheld by the High Court, with LJ Gross stating that “the justification for invoking the criminal law is the threat to public order. Inevitably, the context of the particular occasion will be of the first importance.”

In the case of Abdul the offensive comments were directed at the soldiers and were held to be “not just generalised statements of views, vigorously expressed…but were personally abusive and potentially defamatory”. Mr Abdul’s words thus passed from the lawful expression of offensive opinion to abusive language which amounted to criminal conduct.

Mr Abdul’s comments also led to disorder occurring between his group of demonstrators and the majority of the crowd who supported the returning soldiers, whereas it was accepted that there had been no risk of public disorder at the rally where Mr Ali spoke (even allowing for the presence of counter-demonstrators).

In reaching its decision in the CAA case the High Court has maintained and upheld the important distinction between language, which is unpopular, unpleasant, distasteful, provocative, insulting or offensive; and language which is abusive and therefore capable of being unlawful.