The recent judgments in HM Solicitor General v Trudy Warner [2024] EWHC 918 (KB) and R v Casserly [2024] EWCA Crim 25 remind criminal practitioners of the increasing prominence of free speech and ECHR rights in assisting the courts in reaching their decisions, at least in ‘pure speech’ cases. The emerging line of authorities seem to distinguish ‘pure speech’ cases from others e.g., criminal damage cases, even when those other charges arise in the context of protest. That said even Attorney General’s Reference no 1 of 2022 [2022] EWCA Crim 1259, which dealt with the issues from the Colston statue case, left open some circumstances where articles 10 and 11 may constitute a defence to criminal damage. Those prosecutors, who have interpreted the line of authorities including Attorney General’s Reference no 1 of 2022, Cuciurean [2022] 2 Cr App R 8, Ditchfield [2021] EWHC 1090 (Admin), R v Thacker & Ors [2021] EWCA Crim 97, Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32, and Attorney General’s reference no 1 of 2024 [2024] EWCA Crim 243 as indicating that the higher courts were moving towards restricting protest and free speech rights, will need to sharpen their analysis and proceed with caution.
HM Solicitor General v Trudy Warner was an application to the High Court by the Solicitor General for permission to bring contempt of court proceedings against Trudy Warner for holding a sign outside Inner London Crown Court reminding the jury of their right to acquit according to their conscience. As these were proceedings for contempt of court, the reasonable basis for committal (not dissimilar to the CPS reasonable prospect of conviction test) and public interest tests were examined by the High Court at the permission stage.
Although the Court decided the case based on the common law interpretation of contempt of court (stating that the factual scenario was insufficient to amount to contempt) the High Court stated in relation to the public interest test that:
‘Were it to have been an issue for my decision, I would not have been satisfied that the interference with Ms Warner’s Article 10(1) ECHR rights caused by the commencement and continuation of these proceedings was Convention compliant.’
The court went on to state at paragraph 46 of the judgment:
‘Contempt proceedings pursue the legitimate aim of maintaining the integrity of the trial process (including protecting jurors) and the authority and impartiality of the judiciary within Article 10(2) ECHR. However, in my judgment, it has not been shown by the Solicitor General, even on an arguable basis, that the interference with Ms Warner’s Article 10(1) ECHR rights is necessary for, and proportionate to, achievement of those aims. The words on Ms Warner’s placard reflected in substance what is recognised as a principle of our constitution. However, even if her words had been wrong in law and her conduct inappropriate, the succinct direction given by the judge was sufficient to deal with any prejudice to the trial. A criminal prosecution is a disproportionate approach to this situation in a democratic society.’
Therefore, the court gave significant prominence to Article 10 rights when considering the public interest test, a test that is applied by prosecutors in all criminal cases.
The case of Casserly related to a charge under section 1 of the Malicious Communications Act 1988 following an email sent by Mr Casserly to a councillor copying in others questioning said councillor’s ability to perform their functions due to their characteristics. In Casserly the court overturned the conviction as it ruled that the directions to the jury failed to incorporate Article 10 ECHR considerations and properly include the issue of proportionality, which the court ruled the jury was entitled to consider.
Casserly is of particular significance as in Attorney-General’s reference no 1 of 2022 (as confirmed in the Supreme Court Abortion Services Act case) the court stated that in the context of criminal damage and the ‘reasonable excuse’ defence a prosecution would not be disproportionate and the fact finders would not need to weigh proportionality in any case where the value of the damage was approaching or above £5,000, effectively ensuring no jury in a criminal damage prosecution would have to consider the issue of proportionality (although the court did not consider the rare circumstance where the prosecution unwisely choose to charge a low value conspiracy to cause criminal damage making the case triable on indictment). Therefore, Casserly is a rare instance of a higher court deciding that a judge will have to direct the jury in such a way as to enable them to weigh the proportionality of the interference with a convention right, and providing guidance as to how this should be done.
Thus, proving wrong, those who interpreted Attorney-General’s reference no 1 of 2022 as indicating that the upper courts were inclined to ensure that a judge would always undertake this complex legal balancing exercise where proportionality considerations were not already clearly built into an available defence.
The court stated that the directions in Casserly should have included that:
i) The defendant was in dispute with the Town Council and this email was part of a series of communications between him and Town Councillors. Therefore, it was sent in a political context. Holding politicians to account is an important part of a democratic society;
ii) When people are expressing themselves in a political context the law expects those who receive the communications to have a thicker skin than those who are ordinary citizens;
iii) The use of strong language, even that which is offensive, shocking or extremely rude, may not be enough to amount to the offence charged;
iv) Accordingly, the prosecution had to meet a very high threshold. It would only be possible for the communication to be grossly offensive if, in the jury’s judgment, it went well beyond robust scrutiny of an elected councillor in the performance of the role to which she was elected;
v) It was not enough for the prosecution to prove that the 3 June email was likely to have caused distress or anxiety and the defendant either knew it was likely to have that effect or did not give thought to whether it would. What mattered was what was the defendant’s objective(s) in sending the email. The jury had to be sure that at least part of his objective(s) in sending the email was to cause distress or anxiety.
The Court in Casserly included the Lady Chief Justice and Warby J who was one of the deciding judges in the case of Scottow [2020] EWHC 3421 (a case relating to twitter activity) where again the CPS was robustly criticised for failing to fully consider free speech rights when deciding to prosecute Ms Scottow, for a different Malicious Communications Act offence.
Warner, Casserly and Scottow remind prosecutors that they must not simply assume that the offence itself or any defence that may be available, or read in, is sufficient to ensure ECHR compliance. Instead, prosecutors must have at the forefront of their minds ECHR and common law free speech rights when interpreting legislation and common law offences and importantly when weighing the public interest test.
Defence counsel, in the right case, might wish to carefully consider the issues of an abuse of process or even judicial review of the decision to prosecute where such a decision is in clear breach of their clients Article 10 rights and the prosecution have failed to weigh this properly when deciding whether to bring a charge. The circumstances under which such an abuse of process argument might succeed, following the Abortion Services Act Supreme Court judgment, are narrow. However, if the defence obtained a declaration of incompatibility on appeal (as under s4 of the Human Rights Act a Crown Court is not empowered to give such a declaration) , which following Choudary [2016] EWCA Crime 61 and [2017] ECWA Crim 1606, might be on appeal from a preparatory hearing and therefore pre-trial, and following this the CPS nevertheless in breach of their own guidance chose to continue the prosecution – which is possible as such a declaration under s4 of the Human Rights Act does not as set out in 4(6):
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.
Then the resulting prosecution would likely be an abuse of process under limb two namely that a stay is necessary to protect the integrity of the justice system.
Ultimately Casserly shows that the decision in AG Reference no 1 of 2022 has not resulted in the higher courts closing the door, in all cases, to the issue of proportionality being left to a jury. Therefore, all criminal judges and practitioners need to be cognisant these of arguments, which is no longer the sole preserve of specialist human rights practitioners.
Diana Wilson is regularly instructed to prosecute and defend cases involving complex human rights arguments as well as murder, organised crime, and the full spectrum of serious criminal charges. She ranked as a leading junior in Legal 500 and Chambers UK.
Further information
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Involving Diana Wilson