Tom Wainwright led Elena Papamichael. They were instructed by Lydia Dagostino of Kellys Solicitors.
Owen Greenhall led Mira Hammad (Garden Court North). They were instructed by Nicola Hall of Robert Lizar Solicitors.
Coverage in The Guardian.
The DPP brought a claim for judicial review following the acquittal of the Interested Parties of an offence of using threatening, abusive or insulting words or behaviour with intent, contrary to s.4A of the Public Order Act 1986. The DPP’s claim was refused on all grounds.
At trial, the Interested Parties relied on a defence that their conduct was reasonable when they called Iain Duncan Smith “Tory Scum” as he was leaving the Tory Party Conference on 4th October 2021.
The Chief Magistrate dismissed the charges against them. The DPP sought to appeal his decision which was rejected as “frivolous”. The DPP then brought a claim for judicial review against this refusal.
The High Court ruled that while the legislation imposes a ‘reverse burden’ on the defence to establish the facts relied on for a reasonable conduct defence, where articles 10 and 11 of the European Convention on Human Rights are engaged, the prosecution must demonstrate the proportionality of an interference with those rights and that any interference must be convincingly established.
The Chief Magistrate was right in law to conduct a fact-sensitive proportionality assessment and there was nothing to undermine the conclusion of the judge that a conviction would be a disproportionate interference in the Interested Parties’ rights.
Finally, the High Court held that the judge was “not wrong” to find that the Crown’s application to state a case was “misconceived”.
Accordingly, the Director of Public Prosecution’s application to quash the acquittals was refused.
The judgment represents an important defence of the right to freedom of expression and provides essential guidance on how the courts should approach the question of whether otherwise legitimate speech has crossed the line, such that it should be criminalised. In particular, it affirms that insulting words or behaviour which are intended to cause alarm may still be reasonable and protected as part of the right to protest.
Tom Wainwright led Elena Papamichael and Owen Greenhall led Mira Hammad, of Garden Court North, in the High Court proceedings.
Tom, Owen and Elena are all members of the Garden Court Protest Rights Team.
A copy of the full judgment may be found here.
A summary providing background and explanation to the judgment may be found here.