Crossing the line from protected speech to speech prohibited by criminal law

A judgment has been handed down in the case of Ian Sleeper v The Commissioner of Police of the Metropolis.

The judge agreed that the authorities make it clear that section 24 Police and Criminal Evidence Act 1984 (PACE) requires no additional element in order to make it European Convention on Human Rights (ECHR) compatible provided the deployment of domestic law incorporates consideration and balancing of the necessary but qualified engaged rights enshrined in the ECHR.

Executive summary

The claimant, a protester, pursued a claim for false imprisonment arising out of his arrest for an offence under s. 5 (1) (b) of the Public Order Act 1986 on 23 June 2017 and his subsequent detention in police custody. He also sought vindication and just satisfaction in respect of his right under the Human Rights Act (HRA) 1998 in the context of Articles, 9, 10 and 11 of the European Convention on Human Rights (ECHR).

The judge found that it was:

(a) reasonable for the arresting officer to suspect that the claimant was displaying a sign which crossed the line from Article 10 protected speech into speech prohibited by the criminal law and

(b) that the officer’s belief that the claimant’s arrest was necessary was reasonable.

The judge held that, provided the deployment of domestic law incorporates consideration and balancing of the necessary but qualified engaged rights enshrined in the ECHR, they had no additional part to play in the lawfulness of the arrest. The judge also found that the HRA claims would in any event have been dismissed as they were brought outside limitation. The claims were statute barred and there were no equitable reasons why the claims should proceed out of time.

Background

At around 12:15 on 23 June 2017, the defendant’s officers were patrolling in the vicinity of Southwark Cathedral. They were part of SO20 Counter Terrorism Unit, a proactive unit investigating and trying to stop terrorist threats. They were on patrol in the aftermath of the London Bridge terror attack (which took place on 3 June 2017) assisting local businesses and reassuring the general public.

The claimant was stood outside Southwark Cathedral which had been the focus of multi-faith gatherings of hope and reconciliation in recent days, very close to where the atrocities at Borough Market had occurred. The claimant, a devout Christian, had in his possession and was displaying handwritten signs, which stated:

“LOVE MUSLIMS

BAN ISLAM

THE RELIGION OF TERROR!”

And

“LOVE MUSLIMS

HATE ISLAM

JESUS IS LOVE AND HOPE”

A member of the public approached the officers and said that she had seen the claimant standing on Montague Street outside Southwark Cathedral, displaying signs saying he hated Islam. The member of public said she was troubled and alarmed by the signs.

The officers approached the claimant who was holding one sign with the other sign on the floor next to him. Both signs were visible and on display. The officers engaged the claimant in discussion and sought to explain that, although he was allowed to protest, the signs he was displaying were unlawful and he was committing an offence under Section 5 (1) (b) of the Public Order Act 1986. The claimant made it clear that he would not remove the signs. He also stated that two other people would join him in his protest.

The claimant sought legal advice by telephone and claimed that he was allowed to protest under Article 11 of ECHR. The arresting officer spent a significant amount of time trying to explain to the claimant the relevant legislation and how his right to assembly did not permit him to break the law. The officer sought advice from his sergeant about his power to remove the signs but decided he had no power to do so.

The arresting officer concluded that the claimant was determined to continue to display the signs and he honestly felt it was necessary to arrest the claimant. He arrested the claimant because of the “Hate sign”.

Judgment

The judge found that the honestly held belief was objectively reasonable on the basis that the officer took into account the context of the situation and the message in coming to his decision to arrest the claimant. He also found the arrest was necessary based on objective and reasonable grounds, to prevent the claimant continuing to commit an offence and for the prompt and effective investigation of the offence.

The judge accepted that the claimant’s ECHR Article 10 and 11 rights were engaged. He did not consider Article 9 was engaged. He accepted the defendant’s submissions that the claimant’s rights to free speech (Article 10), and to freedom of assembly (Article 11) were relevant in only one aspect of the case namely, whether it was reasonable for the arresting officer to suspect that the words on the “hate sign” being displayed by the claimant were protected or whether they ‘crossed that line’ so as to engage section 5 POA.

The judge found that it was for the court to determine whether the officer’s suspicion that the claimant had committed an aggravated Section 5 offence was reasonably founded by reference to and balancing the generous scope of free expression domestic and ECHR law allows. He held that, given that it was, and the resulting arrest was necessary as required by section 24(5) Police and Criminal Evidence Act (PACE), the claimant’s ECHR rights have no additional part to play.

The judge accepted the defendant’s submission that the authorities make it clear that section 24 PACE requires no additional element in order to make it ECHR compatible (see R (Hicks) v Commissioner of Police of the Metropolis [2012] EWHC 1947 (Admin) which held that, in finding that an arrest was lawful in domestic law “means that the Convention arguments fall away”) provided the deployment of domestic law incorporates consideration and balancing of the necessary but qualified engaged rights enshrined in the ECHR. The judge held that there was no room for the HRA to impose a kind of ‘super compliance’.

The judge referred to the case of Pal v Commissioner of Police of the Metropolis [2018] EWHC 2988 (QB) which identified that the engagement of Article 10 arose in the context of consideration by the court of whether the objective grounds for arrest had been made out. The judge held that both the arresting officer, and the court, took into account a wide range of factors in addition to the subjective impressions of the initial complainant, including the vitally important ECHR rights.

Limitation

The judge found that the claimant’s free-standing claims under the HRA were statute barred as they were brought outside the 12-month limitation period and he was not satisfied that it was equitable to grant permission for the claims to proceed out of time. The judge was not convinced by the claimant’s arguments that time should be extended on the basis that the delay was short, there was no prejudice to the defendant, the claimant had to sort out funding and the court would inevitably have to deal with the HRA issues in the content of the false imprisonment claim.

He held that he did not consider that it was necessary or desirable to deal with the limitation point as part of the trial given it does make a difference to how a case is managed in cases. The identification of issues and their management at the case management stage of the case is more efficient if limitation can be dealt with justly at that stage.

Comment

This case is helpful in showing that there is no room for a kind of ‘super compliance’ where a person’s ECHR rights are engaged when considering whether an arrest is lawful under s.24 (5) PACE, so long as the officer’s suspicion that the offence had been committed was reasonably founded by reference to and balancing the freedoms the ECHR law allows.

Where domestic law is ECHR complaint and an appropriate balancing exercise has been undertaken, there is unlikely to be room for additional HRA claims based on alleged breaches of domestic law.

The judgment also stands as a reminder that the statutory limitation period to bring a claim under the HRA is there for a reason and that it is not just a given that this will be extended on the basis that there is no prejudice to the defendant and that this issue should not be left for consideration at trial.

The case was handled by Lucy Miemczyk, Senior Associate at Clyde & Co.