Kendall v Director of Public Prosecutions [2008] EWHC 1848 (Admin)

[2008] EWHC 1848 (Admin)Case No CO/4536/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 26th June 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MR JUSTICE KEITH
Between
ANDREW TIMOTHY KENDALLAppellantv
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Ms Micaila Williams (instructed by Messrs Paul Robinson & Co) appeared for AppellantMs Suzanne Stringer (of the Crown Prosecution Service) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE KEITH: On 20th November 2007 at Southend Magistrates' Court, the appellant, Andrew Kendall, was convicted of the racially aggravated form of the offence created by section 5 of the Public Order Act 1986 ("the 1986 Act"). He had pleaded not guilty. He now appeals against his conviction by way of case stated.[2]The facts which the magistrates found proved were that on 3rd February 2007 the appellant had put up a series of posters on an advertising pillar at the junction of Southend High Street and another road. Those posters consisted of four sheets. One of those sheets bore the words "Illegal Immigrant Murder Scum". Another consisted of photographs of three black men, and a third gave telephone numbers and contact details for the British National Party. The magistrates made no findings about what the other sheet said or showed, but there was unchallenged evidence that the three men seen in the photographs were illegal immigrants who had been convicted in the previous December of the manslaughter in Peckham of a woman holding a baby at a christening along with a fourth man who had been convicted of her murder. The killing had attracted a great deal of media interest, although the magistrates made no finding about whether any passer-by looking at the photographs would have realised that these were the photographs of those three men. For my part, I very much doubt whether any passer-by looking at the photographs would have made that connection.[3]Section 5(1) of the 1986 Act provides, so far as is material:
"A person is guilty of an offence if he- ... (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the ... sight of a person likely to be caused harassment, alarm or distress thereby."
Section 6(4) relates to the state of mind of the defendant. It provides, so far as is material:
"A person is guilty of an offence under section 5 only if he intends ... the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting..."
Section 5(3) creates a specific defence to the offence. It provides, so far as is material:
"It is a defence for the accused to prove— (a) that he had no reason to believe that there was any person within ... sight who was likely to be caused harassment, alarm or distress, or ... (c) that his conduct was reasonable."
[4]Section 31 of the Crime and Disorder Act 1988 created the racially aggravated form of the offence. Whether such an offence is racially aggravated is dealt with by section 28(1), which provides, so far as is material:
"An offence is racially ... aggravated ... if— ... (b) the offence is motivated (wholly or partly) by hostility towards members of a racial ... group based on their membership of that group."
Section 28(4) defines the words "racial group" as meaning "a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins".[5]The magistrates found that the posters constituted a visible representation, that the display as a whole was both threatening and abusive, and that the posters were likely to cause alarm or distress, though they did not identify which. As for the appellant's state of mind, the magistrates did not state expressly what their findings were, though they must have found that he intended the display to be threatening, abusive or insulting, or that he had been aware that it had been, since the second of the three questions which they posed for the opinion of the High Court was whether it could be said that the appellant intended or was aware that the posters were threatening, abusive or insulting. Again, as far as the defence in section 5(3) is concerned, the magistrates did not state in the Case Stated why they rejected the defence, though they referred in the Case Stated to the submission of counsel for the appellant that his conduct had been reasonable as he had been "trying to promote his political party and their views in relation to immigration and law and order".[6]As for whether the offence had been racially aggravated, the magistrates found that the use of the words "Illegal Immigrant Murder Scum" without qualification, coupled with the photographs of three black men, were such that the posters had been directed at a racial group. The magistrates did not expressly state that they found that the display of the posters had been motivated by hostility towards members of such a racial group, but since the third of the questions which the magistrates posed for the opinion of the High Court was whether the display of the photographs could be said to show such motivation, the magistrates must have been satisfied that such motivation had been proved.[7]Although I have summarised the effect of two of the three questions posed by the magistrates for the opinion of the High Court, it is important to quote them verbatim. They are:
"(1) Whether on the facts of the case, the visual display can be regarded as 'threatening and abusive'. (2) Whether on the facts of the case it can be said that the [appellant] intended or was aware that the poster was 'threatening, abusive or insulting'. (3) Whether on the facts of the case it can be said that an act of putting the poster up was motivated by hostility towards a particular racial or religious group."
The second of these questions assumed that, if the appellant was to be convicted on the basis of his awareness of the threatening, abusive or insulting nature of the posters as opposed to his intention that they were, he had to be aware that they were threatening, abusive or insulting. That is not correct. All that had to be proved was that the appellant had been aware that they might be threatening, abusive or insulting.[8]Whether a visual display is to be regarded as threatening or abusive for the purposes of section 5 of the 1986 Act is very much a value judgment, as the Divisional Court said in Norwood v Director of Public Prosecutions [2003] EWHC 1564 (Admin) at [16]. In that case, which was drawn to the magistrates' attention, a poster was displayed which contained words in very large print:
"Islam out of Britain" and "
Protect the British people". It also reproduced a photograph of one of the twin towers of the World Trade Centre in flames on 11th September 2001, as well as a crescent and star surrounded by a prohibited sign. The Divisional Court found that the district judge had been entitled to find the poster insulting. In his judgment, Auld LJ said at [33]:
"The words of the poster alone, and even more so when considered alongside the symbols of one of [the] twin towers of the World Trade centre in flames and the crescent and star surrounded by a prohibition sign, were clearly racially directed and racially insulting. The poster was a public expression of attack on all Muslims in this country, urging all who might read it that followers of the Islamic religion here should be removed from it and warning that their presence here was a threat or a danger to the British people."
[9]Ms Micaila Williams for the appellant argues that there are very significant differences between the poster in Norwood and the posters in the present case. When taken as a whole, the posters in the present case are, she submits, no more than what might have appeared on the front page of a tabloid newspaper on the day after the three men had been convicted. Indeed, that was in effect what the appellant had said in a prepared statement he made when he was interviewed by police officers following his arrest. The posters threatened no-one. They simply characterised the men who had been convicted as "scum", and apart from using the word "murder" when the word "killer" would have been more appropriate in view of the men's conviction for manslaughter, the posters were accurate: the men were illegal immigrants, they were killers and they could properly be described as "scum".[10]I cannot agree with that argument. It would not, in my opinion, have been readily apparent to any passer-by that the men depicted in the photographs were convicted killers. The word "murder" in the phrase "Illegal Immigrant Murder Scum" could just as well have conveyed to a passer-by that these men were capable of committing murder. But, leaving that aside, the value judgment which the magistrates would unquestionably have been entitled to make was that the posters were conveying the message that black people are scum because they are the sort of people who come to this country illegally, and who either commit, or are capable of committing, crimes like murder. I do not think that there is any basis for saying that it was not reasonably open to the magistrates to conclude that the posters were abusive (and insulting as well) if that was the message which the posters could be said to be conveying. Accordingly, my answer to the first question posed for our opinion is "yes".[11]As I have said, the magistrates did not identify whether they were sure that the appellant had intended the poster to be threatening, abusive or insulting, or whether they were sure that the appellant had simply been aware that they may have been threatening, abusive or insulting. But the submission which is made is that there was insufficient evidence to satisfy the magistrates of either. Although the appellant did not give evidence, he had said nothing in his prepared statement or when he was interviewed which showed that he had been aware that the posters might have been threatening, abusive or insulting. Indeed, he had specifically told the police that "no offensive terms" had been used, and that the word "scum" was often used by the tabloid press and probably by police officers as well.[12]I cannot agree with that argument either. It would unquestionably have been open to the magistrates to conclude that the appellant himself had been aware that the posters were conveying the message that black people were scum because they are the sort of people who come to this country illegally, and who either commit or are capable of committing, crimes like murder. If it was open to the magistrates to conclude that the appellant had been aware of that, it would inevitably have been open to them to conclude that the appellant had been aware that the posters may have been abusive or insulting. Accordingly, my answer to the second question posed for our opinion, which I would rephrase as whether on the facts of the case it can be said that the appellant was aware that the posters may have been threatening, abusive or insulting, is "yes".[13]The last question relates to whether it was open to the magistrates to convict the appellant of the aggravated form of the offence. The racial group to whose members the appellant was alleged to have been motivated by hostility was the immigrant community, and in Attorney General's Reference (No 4 of 2004) [2005] 2 Cr.App.R 26 -- again, a case which was cited to the magistrates -- the Court of Appeal held that whether calling someone an immigrant was simply an allegation of non-Britishness, or whether it was a manifestation of hostility to that person because their non-Britishness was perceived to derive, for example, from their race or colour, was a question of fact to be determined, in that case, by the jury. The submission in this case is that there was no evidential basis on which the magistrates could conclude that calling the men depicted in the photographs immigrants was a manifestation of the appellant's hostility to them because their non-Britishness was perceived by him to derive from their race or colour. Such evidence as there was, so it is said, suggests that the appellant was motivated by altogether different considerations. His sole purpose was to attract new members to the British National Party by highlighting issues relating to immigration. That was why one of the sheets which he put up gave telephone numbers and contact details for the British National Party. Indeed, in his prepared statement, he expressly disavowed any suggestion that the display was aimed at any particular ethnic or racial group. He said that the posters were simply raising awareness of the party's views on immigration in relation to the commission of offences by illegal immigrants. That, of course, was the basis of his reliance on the statutory defence in section 5(3).[14]I cannot go along with this argument either. It was open to the magistrates to treat as significant the fact that the appellant choose to illustrate the prevalence of crimes committed by illegal immigrants by a case involving black men, and by putting up photographs of them so that everyone could see that they were black. In his prepared statement, the appellant said that they were not chosen because of their race, but there was no evidence before the magistrates about why the appellant had chosen these particular men to illustrate the responsibility of illegal immigrants for crimes of violence. The use of the highly derogative word "scum" and the notion that the immigrant community should be judged by the actions of those illegal immigrants who commit crimes of violence in this country were additional factors which could have justified the magistrates' conclusion, implicit in their conviction of the appellant, that the appellant's conduct amounted to a manifestation of his hostility to immigrants because their non-Britishness was perceived by him to derive from their race or colour. Although he may have been wanting to recruit members to the British National Party, that did not mean that he was not at the same time motivated by such hostility. Accordingly, my answer to the third question posed for our opinion is "yes".[15]For these reasons I would dismiss this appeal.

LORD JUSTICE RICHARDS: I agree.

[17]MS WILLIAMS: My Lord, may I just seek something in clarification? Perhaps I am the one who is at fault but if I leave without asking I will not be able to sleep tonight. The first question for the consideration of the court was "whether on the facts of the case the visual display can be regarded as threatening or abusive" and I think your Lordships found that it could be abusive and insulting. So in that sense the question would be no but it still would amount to -- the answer would be no but it still amounts to --[18]MR JUSTICE KEITH: The question was whether the poster could be threatening or abusive, and in my judgment I said that it could be both abusive and insulting.

LORD JUSTICE RICHARDS: The finding was threatening, abusive or insulting. The questions did not cover the finding of the magistrates but must be read as having covered it.

[20]MS WILLIAMS: Thank you, your Lordships. It is my mistake.

LORD JUSTICE RICHARDS: Thank you very much.