Crossing the line: when protected speech is suspected to amount to a criminal offence

Ian Sleeper v Commissioner of the Police of the Metropolis [2025] EWHC 151 (KB)

Background

Clyde & Co, acting on behalf of the Commissioner of Police of the Metropolis, successfully opposed the appeal of the first instance decision, ruling that the arrest of the claimant/appellant, a Christian preacher, for a Public Order Act offence whilst proselytising was lawful.

The events took place in the aftermath of the Borough Market terror attack on 3 June and the Finsbury Park attack on 19 June 2017. The appellant, a devout Christian, stood outside Southwark Cathedral displaying handwritten signs, which stated: “LOVE MUSLIMS, BAN ISLAM, THE RELIGION OF TERROR!” and “LOVE MUSLIMS, HATE ISLAM, JESUS IS LOVE AND HOPE”.   The Cathedral was due to host a multi-faith community service that day.

A member of the public reported to officers that she was troubled and alarmed by the signs. The officers engaged in a lengthy discussion with the appellant in which they explained that the signs were causing alarm and he was committing an offence and encouraged him to proselytise without these. The appellant refused. The officers determined that they had no power to seize the signs and, accordingly, believed that it was necessary to arrest the appellant for a public order offence.

The claimant pursued a claim for false imprisonment and breaches of his Articles 9, 10 and 11 human rights arising out of his arrest.

First instance decision

Following the original trial, for which Clyde & Co were also instructed, the Judge dismissed the claimant’s claim and found that:

1. it was 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
2. the arresting officer honestly and reasonably believed that the claimant’s arrest was necessary.

The Judge determined that the HRA claims would, in any event, have been dismissed as they were brought outside of the limitation period. There were no equitable reasons as to why the claims should proceed out of time.

Appeal

The appellant did not appeal the decision in relation to the HRA claims, however, it was submitted that the failure to pursue a claim under the HRA did not remove his Convention rights from consideration in the claim or the State’s obligation to give effect to these.

There were multiple grounds of appeal, however, the focus was whether the arresting officer ought to have considered the claimant’s Convention rights prior to arrest, in particular the objective reasonableness of the appellant’s behaviour in light of his Convention rights and whether it was proportionate to arrest the claimant (over and above it being necessary).

Following a two-day appeal hearing, Mr Justice Sweeting held that the Judge at first instance had undertaken a factual analysis and determined that Articles 10 and 11 were engaged, but that the central issue was whether it was reasonable for the officer to suspect that displaying the signs amounted to an offence, which it was.

Mr Justice Sweeting rejected the argument that police officers must conduct a separate proportionality assessment when considering whether the requirements of section 24 PACE have been satisfied in order to justify the interference with an individual's ECHR rights. Whilst acknowledging that there was authority that the court ought to consider proportionality as a ‘lawful excuse’ defence when individuals are exercising their right to protest (Ziegler v DPP [2021] UKSC 23), that assessment was to be carried out at the time of prosecution/conviction and not at the time of arrest.

In this case, the trial Judge was correct to focus on the well-established requirements for a lawful arrest as set out in the Castorina v The Chief Constable of Surrey [1988] NLJR 180 and the cases which followed it, in summary:

1. Did the arresting officer suspect the person arrested to be guilty of the offence?
2. Was there reasonable cause for that suspicion?
3. Was it was necessary to arrest for a s24(5) PACE reason?
4. Was the decision “Wednesbury” reasonable?

The appellant’s argument that the arresting officer must separately consider whether an arrest was a proportionate response to the suspected crime, rather than one which was necessary, was a requirement which the court in Hayes v Chief Constable of Merseyside [2012]1 WLR 517 considered would impose an “unrealistic and unattainable burden” on the police.

Mr Justice Sweeting was satisfied that trial Judge was entitled to find that the signs were abusive, within its ordinary meaning, and would cause alarm, harassment or distress. He rejected the argument that an imminent risk of public disorder was required in relation to a Public Order Act offence (in particular when the detainee’s Convention rights are engaged), as this was not within the wording of the statute. He was also satisfied that the appellant’s Article 9 rights were not engaged in this case because the exhortation to ‘Hate Islam’ was not intimately linked to his Christian beliefs (and in any event, even if engaged, that would not have rendered the arrest unlawful for the same reasons as above). Accordingly, the appeal was dismissed; you can read the full judgment here.

Comment

The judgment of Mr Justice Sweeting, upholding the decision of the Judge at first instance, is a welcome one and will provide reassurance to forces and police officers as to the important question of what a police officer is required to do and/or to consider when dealing with an individual who is suspected of committing a criminal offence whilst also carrying out an act or acts in the exercise of their human rights.

The appellant’s contention that the officers were required to undertake a proportionality balancing exercise when considering whether to arrest someone purporting to exercise their Convention rights – in this case the appellant’s freedom of expression and freedom of assembly and association – would lead to a separate test to the well-established test in line with s24 PACE and, as recognised in Hayes, would impose an “unrealistic and unattainable burden” on the police.

As such, given that the officer suspected that the signage “crossed the threshold of a criminal act under section 5 of the Public Order Act 1986, bearing in mind the Appellant's ECHR rights”, the correct test that was, and should be, applied is that summarised in Castorina and subsequent authorities with which police officers, forces and solicitors are familiar.

Clyde & Co are specialists in dealing with Police Law claims, and we constantly monitoring developments in this area. For more on this subject, you can read all of our previous articles here, and if you have any questions about this topic you can contact Laurie Swain or any of our team.