A man been found guilty of public order offences for burning poppies and chanting “British soldiers burn in hell” on Remembrance Day. He was fined £50.

The ruling, and in particular the fine, has led to public anger. The Sun called the fine “pathetic” and asked whether Britain is now “deep in a quicksand of political correctness and hand-wringing over human rights“. The Prime Minister has said that we should be “making a stronger statement that that sort of behaviour is completely out of order and has no place in a tolerant society“

The Sun is wrong that Emdadur Choudhury’s low fine had anything to do with human rights; Chief Magistrate Riddle made clear that “invoking the criminal law to interfere with freedom of expression is proportionate“. But two important questions do arise. First, whether the conviction represents a disproportionate breach of Emdadur Choudhury’s right to freedom of speech. Secondly, if the £50 fine was adequate.

The brief background is as follows. A group of demonstrators known as Muslims Against Crusaders (“MAC”) interrupted the annual 11 November two minutes silence by chanting “British soldiers burn in hell” and burning oversized poppies. A counter protest by the English Defence League, a far-right political group, was happening nearby at the time.

The conviction

Two men were charged with causing harassment alarm and distress contrary to section 5 of the Public Order Act 1986, by which it is an offence to (a) use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) display any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress.

There are various defences to section 5, including if the defendant had no reason to be believe there would be anyone who could hear or see the threatening conduct; and if the conduct was reasonable.

In deciding whether the conduct was reasonable, the judge began by summarising the history of Remembrance Day, “a time when we remember those who have died in the service of their country“. And, the “poppy itself is a vivid symbol of the trenches in Flanders where many of the deaths in the First World War occurred“.

Against that background, burning poppies and shouting death-to-soldiers slogans was “likely to cause distress“. But was it reasonable? The judge reminded himself of the balancing exercise which must always be struck between freedom of speech and public protection:

there is a clear inference that the MAC demonstration was intended to make a political point. Article 10 of the European Convention on Human Rights allows freedom of expression. A person’s conduct will be reasonable if he is exercising ECHR rights in the circumstances in which an interference with that exercise would not be justified under Articles 10(2).

He went on to find that the behaviour was not reasonable. The basic point was that a threat to public order justifies invoking the criminal law. And following on from that,

if the memory of dead soldiers is publicly insulted, at a time and place where are likely to be gathered people who have expressly attended to honour those soldiers, then the threat to public order is obvious. Here it is hard to imagine that a public order disturbance was not intended.

Despite claiming not to “assess the value or otherwise of this protest“, which the judge said was “no part” of his function, it is difficult to see how the following paragraph does not stray into that very task:

I have no doubt that it was the intention of this protest to shock and offend. Shocking and offending people is sometimes a necessary part of effective protest. Here, an obvious consequence of this process was to show disrespect for dead soldiers, who should burn in hell. The two minute chanting, when others were observing a silence, followed by a burning of the symbol of remembrance was a calculated and deliberate insult to the dead and those who mourn or remember them.

The judge would say that he was merely applying the test set down by public order law, namely assessing whether the behaviour was insulting and threatening, and whether it caused harassment, alarm or distress. But even by couching the question in terms of the potential offence, rather than validity, of a political protest, this surely forces a judge to make judgments on the value of a protest. And in asking whether it was “reasonable” (one of the statutory defences), one is really asking whether it was worth it. And that is at least in part a political question, which throws up significant difficulties. As The Economist’s Bagehot put it:

I would feel very cross if I saw someone deliberately setting out to ruin the two-minute silence on Armistice Day. But it is frankly creepy to assert that “each poppy” symbolises the life of a dead soldier. What about the poppy that I found, scrunched up and forgotten, in an overcoat pocket the other day? Or the first poppy I bought last year, which I managed to rip and break? Was I insulting the memory of my relations who fought in the two world wars?

Ultimately, the judge found Choudhury guilty of the offence and Haque (the other defendant) not guilty.

In respect of the human right to freedom of speech, this is protected under article 10 of the European Convention, but since it is a qualified right it can be breached in certain circumstances, including protecting public safety.

I have recently dealt in detail with the position under the English law in comparison to the stronger protections in the United States. I suggested that the current law may be stifling debate. Not everybody agrees. But the High Court has already ruled in a similar case (where protesters chanted “burn in hell”, “baby killers” and “rapists” at British soldiers) that prosecution under the public order act was legitimate, and that freedom of speech will not have been impaired by ““ruling …out” threatening, abusive or insulting speech” (Lord Reid, in Brutus v Cozens [1973] AC 854, at p. 862). So whilst judges may feel uncomfortable making decisions about political protests, it is unlikely that the courts will accept that the public order laws generally amount to an unjustified breach of the right to free expression.

£50

It is perhaps a reflection of Judge Riddle’s discomfort that he imposed such a low fine, although his sentencing remarks are not available so we cannot know for sure. The sentencing guidelines for offences under section 5 of the Public Order Act are set out on page 88 of the Magistrates Court Sentencing Guidelines. A level 3 fine is available for an offence which is not racially aggravated (which this wasn’t), meaning the maximum possible fine was £1,000.

Aggravating factors (that is, factors which can make the fine higher) are if the incident was a group action (it was), a lengthy incident (although the protest was longer, the burning incident was only a matter of minutes) and whether there were vulnerable people present (there weren’t). Mitigating factors are whether the incident stopped as soon as police arrived (the police were already there to observe), if it was a brief/minor incident (probably not)and whether there was provocation (the EDL probably were).

It is also an important consideration that the Defendant was on benefits, given that the fines are set with reference to a percentage of a defendant’s weekly earnings. This does not necessarily entail a low fine though: benefits claimants are often asked to pay off the fine in instalments through deductions to their benefits.

Given the above factors, it is difficult to see how the judge reached such a low fine. It hardly fits with the emotive language of the judgment, which described a ”calculated and deliberate insult to the dead and those who mourn or remember them“. And Choudhury did not even turn up to the hearing, so he cannot have generated much sympathy.

An uncomfortable balance

One wonders whether Chief Magistrate Riddle’s reasoning, published on the judiciary’s website, was aimed at one section of society – those such as The Sun who would inevitably condemn the “feeble liberal” judge – and the low fine at another.

It is interesting the Lord Justice Leveson, the judge responsible for sentencing policy in England and Wales, immediately appeared on BBC radio (listen here) to justify the fine. He said ”[The judge] had to balance the insult caused to those who were respecting the two minutes silence against the right which we all have to express ourselves freely, both under the European Convention and otherwise.”

Notwithstanding that the judge could not comment on the particular case, it is odd that he chose this aspect to identify when he was asked about sentencing. Although it was relevant to the verdict, it is not a part of the factors mentioned in the sentencing guidelines nor should it be. The question of proportionality will already have been dealt with, and magistrates are not asked to reconsider it in setting the fine.

The contrast between the judge’s reasoning and the fine he ultimately set perhaps highlights the uncomfortable task judges have when straying into questions of the legitimacy of political protest. But Parliament has asked courts to carry out that function, and given recent case law the courts will not reject their task on human rights grounds. They may find themselves continuing to please everyone but ultimately pleasing no one.

This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks.