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CRIMINAL LAW, EVIDENCE AND PROCEDURE - PUBLIC ORDER – OFFENSIVE CONDUCT CONDUCIVE TO BREACHES OF PEACE – THREATENING, ABUSIVE OR INSULTING WORDS OR BEHAVIOUR – DEFENDANTS PROTESTING OUTSIDE ABORTION CLINIC – DEFENDANT’S PRESENTING SHOCKING PHOTOGRAPHS TO PUBLIC AND POLICE – WHETHER CONDUCT OF DEFENDANTS TO BE ASSESSED OBJECTIVELY – WHETHER DEFENDANTS’ INTENT TO BE ASSESSED SUBJECTIVELY – PUBLIC ORDER ACT 1986, SS 5(3), 6.
The defendants took part in a protest outside a licensed abortion clinic. They thrust pictures of aborted foetuses into the faces of people attending the clinic, and also police officers who repeatedly told them not to do so. They were arrested and charged under ss 5(1)(b) and 6 of the Public Order Act 1986. The informations laid alleged that in each case the defendants ‘did display writing, a sign or visible representation which was threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby’, contrary to ss 5(1)(b) and 6 of the Act.
The justices concluded that the pictures displayed were abusive and insulting when giving those words their ordinary everyday meaning. They further concluded that the pictures were displayed in the sight of a person likely to be caused harassment, alarm or distress, and that alarm and distress were in fact caused to the police constable. Applying an objective test, they concluded in relation to s 5(3)(c) of the Act that the conduct of each of the defendants was not reasonable, taking into account all circumstances of the case.
Applying s 6 of the Act, however, and using a subjective test, they concluded that, on the balance of probabilities, none of the four defendants intended the picture displayed to the police constable to be threatening, abusive or insulting, nor was any of them aware that the picture might be threatening, abusive or insulting. On appeal by the prosecutor, the questions posed for the court were whether the justices were right to apply an objective test in reaching their conclusion under s 5(3)(c), and a subjective test in arriving at their conclusions under s 6(4).
Held: The justices were correct to apply an objective test in reaching their conclusion under s 5(3)(c) of the Act and a subjective test in arriving at their conclusions under s 6(4) of the Act. The question whether the defendant’s conduct was reasonable so as to entitle him to invoke the defence provided by s 5(3)(c) could only be answered by reference to objective standards of reasonableness: the question whether the defendant had the intention or awareness which was required as a condition of guilt under s 6(4) could only be answered subjectively by reference to the state of mind of that defendant, in the light of the whole of the evidence concerning his words and behaviour and the surrounding circumstances. The burden of proof upon the defendant to establish a defence under s 5(3) was the balance of probability. In the instant case, the justices having applied the correct test it was impossible to say that no reasonable magistrate’s court could have properly acquitted the defendants. The appeal was therefore dismissed.
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