IN THE KINGSTON UPON HULL MAGISTRATES COURT
R
-v-
SIMON GUY SHEPPARD
SKELTON (sic) ARGUMENT FOR
COMMITAL (sic) PROCEEDINGS
The Committal for trial of this Defendant is sought upon charges set out in the enclosed draft indictment.
Count 1
Publishing or Distributing racially inflammatory material.
Archbold 29-42
Public Order Act 1986, s.19
(1) A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if –
(a) he intends thereby to stir up racial hatred, or
(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.
(2) In proceedings for an offence under this section it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.
For the proper approach to the expressions “threatening, abusive or insulting” and “likely to,” see ante, §§ 29-28, 29-29.
Count 2
Possession of racially inflammatory material
29-47
Public Order Act 1986, s.23
(1) A person who has in his possession written material which is threatening, abusive or insulting,... with a view to –
(a) in the case of written material, its being displayed, published, distributed, ... whether by himself or another, (or)
((b) Not applicable in this case)
is guilty of an offence if he intends racial hatred to be stirred up thereby or, having regard to all the circumstances, racial hatred is likely to be stirred up thereby.
(3) [Identical to s.19(2), ante, § 29-42, save for reference to “written material or recording” in lieu of “material.”]
The written material relied upon is set out at page 1 of the exhibits bundle.. PC Robinson seized a carrier bag containing copies of the document from Mr Sheppard on Tuesday 8th June 1999. Mr Sheppard said when asked that he was handing them out. Copies of the document had been received by residents of the Avenues area of Hull during the days prior to 8th June 1999. Mr Sheppard was arrested.
In interview Mr Sheppard admitted to designing the document and to distributing the document (page 10)
Applied to the Count 1 –
There seems to be no dispute that Mr Sheppard had published or distributed written material and
Applied to Count 2 –
There seems to be no dispute the (sic) Mr Sheppard had in his possession written material which had been and continued to be published and distributed by himself and another.
[As to the meaning of “written material,” see section 29, post, § 29-53. As to the meaning of “distribution” and “publication,” see sections 19(3) and 21(2), ante, §§ 29-42, 29-44.]
For the proper approach to the expressions “threatening, abusive or insulting” and “likely to,” see §§ 29-28, 29-29.
29-28
“threatening, abusive or insulting”
In Brutus v. Cozens [1973] A.C. 854, the question was what was the proper meaning to be given to “insulting.” The House of Lords held that this was not a question of law at all, but a question of fact. The meaning of an ordinary word of the English language, such as “insulting,” is not a question of law. ... ...
Simcock v. Rhodes, 66 Cr.App.R. 192, DC; Bryan v. Robinson [1960] 1 W.L.R. 506, DC, in which it was said that words or behaviour might be annoying without being insulting; R. v. Ambrose, 57 Cr.App.R. 538, CA, in which it was said that words which are rude or offensive are not necessarily insulting; and Parkin v. Norman [1983] Q.B. 92, DC, in which it was said that insulting behaviour was not to be construed as offensive or disgusting behaviour. However, it should be emphasised that these decisions are no more than illustrative, being decisions on the facts of particular cases. As Lord Kilbrandon said in Brutus v. Cozens:
“It would be unwise, in my opinion, to attempt to lay down any positive rules for the recognition of insulting behaviour as such, since the circumstances in which the application of the rules would be called for are almost infinitely variable; the most that can be done is to lay down limits, as was done in Bryan v. Robinson (ante), in order to ensure that the statue is not interpreted more widely than its terms will bear” (at pp. 866-867).
The Prosecution say that in relation to Count 1 and Count 2 It is a matter of fact for a jury to determine whether the content of the document is threatening abusive or insulting but the prosecution say that there is ample reason for a jury so to conclude.
Likewise it is a matter of fact for a jury to decide whether the defendant intended to stir up racial hatred or whether in all the circumstances racial hatred was likely to be stirred up but the prosecution say that there is ample reason for a jury so to conclude.
In considering whether a prima facie case is established it is not appropriate to consider the potential to establish the statutory defence.
European Arguments
II. The Human Rights Act 1998
A. Summary
General
The Human Rights Act 1998 gives effect in domestic law to the rights and freedoms guaranteed under the European Convention on Human Rights. Under the Act it is unlawful for any public authority, including a court or tribunal at any level, to act in a manner which is incompatible with a Convention right (s.6). Convention rights thus take precedence over any rule of common law or equity and over most delegated legislation. Primary legislation must be read and given effect in a manner which is compatible with Convention rights, so far as it is possible to do so (s.3(1)).
16-119
Freedom of Expression
Article 10
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and idea without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
16-120
Freedom of expression “constitutes one of the essential foundations” of a democratic society, and applies “not only to information or ideas that are favourably received, or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population”: Handyside v. U.K., 1 E.H.R.R. 737, at para. 49.
16-124
Race hatred
The Commission has held (in reliance on Article 17 (see below)) that extreme racist speech is outside the protection of Article 10 because of its potential to undermine public order and the rights of the targeted minority: Kühnen v. Germany, 56 D.R. 205; Glimmerveen and Haagenback v. Netherlands, 18 D.R. 187. A case in which Article 17 was successfully invoked to justify the prosecution of the applicants for possessing leaflets likely to incite racial hatred and their exclusion from local elections
16-29
B. The European Convention on Human Rights
Approach to construction
In determining any question which has arisen in connection with a Convention right, courts are required to take into account the decisions of the European Court and Commission of Human Rights and the Committee of Ministers of the Council of Europe on the interpretation of the Convention (Human Rights Act 1998, s.2(1), ante, § 16-13). The Court and Commission have established the following general principles.
(i)The Convention is “an instrument designed to maintain and promote the ideals and values of a democratic society” (Kjeldsen and others v. Denmark, 1 E.H.R.R. 711 at para. 53). Particularly important features of a democratic society are “pluralism, tolerance and broad-mindedness” (Handyside v. U.K., 1 E.H.R.R. 737, at para. 49; Dudgeon v. U.K., 4 E.H.R.R. 149, at para. 53), and the “rule of law” (Golder v. U.K., 1 E.H.R.R. 524 at para. 34; Klass v. Germany, 2 E.H.R.R. 214, at para. 55).
16-35
Other principles
Article 17 of the Convention contains additional principles governing the interpretation of the rights guaranteed and the restrictions thereto (see s.1(1) of the 1998 Act, ante, § 16-10).
Article 17
Prohibition of abuse of rights
17. Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
(see Glimmerveen and Haagenback v. Netherlands, 18 D.R. 187 above)
The Prosecution assert that the ECHR cannot be used in this case to legitimise the publication, distribution and possession of written material which infringes the basic rights of other groups of society.
16-101
Right to Respect for Private and Family Life
Article 8.
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
16-113
Freedom of Thought, Conscience and Religion.
Article 9
(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
(2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Howard Crowson
5th Floor St. Paul’s House
23 Park Square
Leeds
2nd January 2000
