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21 January 2002 |
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(See 'Stars and Stripes' flag in the High Court London - December 16 2001; High Court upholds campaigner's right to deface US flag - December 22 2001) |
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A conviction for using threatening, abusive and insulting words or behaviour likely to cause harassment alarm or distress, contrary section 5 of the Public Order Act 1986, where the claimant defaced the flag of the United States was incompatible with article 10 of the European Convention on Human Rights. The Queen's Bench Divisional Court so held in a reserved judgment, allowing the appeal by the claimant, Lindis Percy, by way of case stated, against conviction by District Judge Heley on May 18, 2001, for using threatening abusive and insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, contrary to section 5 of the 1986 Act, in respect of the claimant's behaviour at a US Air Force base at RAF Feltwell. Mr Keir Starmer and Mr Rajiv Menon for Ms Percy; Mr John Farmer for the prosecution; Mr Hugo Keith for the Secretary of State for the Home Department, intervening. MRS JUSTICE HALLETT said that the alleged offence was committed near the gate at RAF Feltwell in the course of a protest against the use of weapons of mass destruction and against American military policy including the national missile defence system. The claimant defaced the American flag by putting a stripe across the stars and by writing the words "Stop Star Wars" across the stripes. She stepped in front of a vehicle and stood upon the flag. American service personnel regarded the claimant's actions as a desecration of their national flag. The district judge concluded that the restrictions and penalties attached by section 5 of the 1986 Act to the claimant's right to freedom of expression under article 10.1 of the Convention was necessary in a democratic society for the protection of the rights of others under article 10.2 and proportionate to the need to protect such rights. The claimant submitted that flag denigration was a form of protest activity renowned the world over and had been afforded protection in other jurisdictions including in the USA itself: see Texas v Johnson ((1989) 491 US 397). In her Ladyship's view it was significant that sections 5(3)(c) and 6(4) of the 1986 Act specifically provided for there to be proof of mens rea and for the defence of reasonableness. The provisions as enacted and applied by the courts contained the necessary balance between the right of freedom of expression and the right of others not to be insulted and distressed. The court had to presume that the claimant's conduct in relation to the American flag was protected by article 10 unless and until it was established that a restriction on her freedom was strictly necessary. The district judge was entitled to find that there was a pressing social need in a multicultural society to prevent the denigration of objects of veneration and symbolic importance for one cultural group. The next stage of the task was to assess whether or not the interference with the claimant's right to free expression by criminal prosecution, by using her own property to convey a lawful message, was a proportionate response to that aim. The fact that the claimant could have demonstrated her message in a way which did not involve the use of the national flag of symbolic significance to her target audience, was only one factor to be taken into account when determining the overall reasonableness and proportionality of her behaviour and the state's response to it. The district judge had given insufficient weight to the presumption in favour of the claimant under article 10. Accordingly, the conviction would be quoshed. Lord Justice Kennedy agreed. Solicitors: Birnberg Peirce & Partners; Crown Prosecution Service, Norwich; Treasury
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