The judge was entitled based on the evidence before him, to conclude that an offence of causing alarm or distress under s.5(1)(b) Public Order Act 1986 aggravated in the manner provided by s.28 and s.31 Crime and Disorder Act 1998 (as amended by s.39 Anti-Terrorism, Crime and Security Act 2001) had been made out.Appeal by way of case stated from conviction by District Judge Browning at Oswestry Magistrates' Court on 13 December 2002, of an offence of causing alarm or distress under s.5(1)(b) Public Order Act 1986 aggravated in the manner provided by s.28 and s.31 Crime and Disorder Act 1998 (as amended by s.39 Anti-Terrorism, Crime and Security Act 2001). The appellant, the regional organiser of the British National Party, was convicted of displaying a poster which was threatening, abusive or insulting within the hearing or sight of a person to whom it was likely to cause harassment alarm or distress and which was religiously aggravated in accordance with the above provisions. The poster contained words in very large print "Islam out of Britain" and "Protect the British People". It bore a reproduction of a photograph of one of the twin towers of the World Trade centre in flames on 11 September 2001 and a crescent and star surrounded by a prohibition sign. The judge found that the poster was abusive and insulting to Islam and, on its terms and in its symbols, to the followers of that religion. It was likely to cause harassment, alarm or distress and its display was not objectively reasonable within s.5(3)(c) of the 1986 Act. The offence was religiously aggravated in that it was, as provided by s.28(1)(b) of the 1998 Act, motivated (wholly or partly) by hostility towards members of a religious group based on their membership of that group. Art.10(1) of the European Convention on Human Rights was engaged but the restrictions on it imposed by s.5 of the 1986 Act were, on the facts, saved by the provisions of Art.10(2), a saving that was supported by Art.17. Art.14 was not engaged and there was no evidence to support the appellant's recourse to it. By the case stated, the judge asked the court whether he had made correct findings on these points and correctly convicted the appellant. The issues on appeal were: (i) whether the judge was right to find that the conduct of the appellant fell within the aggravated form of s.5 of the 1986 Act; (ii) how the s.5(3) defence should be construed in the light of Art.10.HELD: (1) On the evidence of the content of the poster and of the circumstances of its display, the judge was entitled to find that the first limb of the aggravated s.5 offence was made out, namely that the appellant had displayed the poster intending it to be, or being at least aware that it might be, racially insulting to Muslims. It could not be dismissed as merely an intemperate criticism or protest against the tenets of the Muslim religion, as distinct from an unpleasant or insulting attack on its followers generally. (2) The terms of the poster and the circumstances and location of its display were, as a matter of plain common sense, capable of causing harassment, alarm or distress to those passing by who might see it in the appellant's window, both right-thinking members of society concerned with the preservation of peace and tolerance and the avoidance of religious and racial tension, as well as to any follower of the Islamic religion. The judge was entitled so to find, and the prosecution did not have to prove that the display of the poster in fact caused anyone harassment, alarm or distress. (3) The way in which Art.10 intruded on the operation of a s.5 prosecution was whether the defendant's conduct was objectively reasonable, having regard to all the circumstances, including importantly those for which Art.10.2 provided. These would include consideration whether to mark as criminal the accused's conduct in displaying the poster as a necessary restriction of his freedom of expression for the prevention of disorder or crime and/or for the protection of the rights of others. Two of a number of relevant factors were: (i) whether the accused's conduct went beyond legitimate protest and (ii) whether the behaviour had not formed part of an open expression of opinion on a matter of public interest, but had become disproportionate and unreasonable (Percy v DPP (2002) Crim LR 835. (4) Whatever the nature of the burden of proof on the appellant in raising the defence, the judge, in the circumstances of his findings on the two limbs in s.5(1) could not sensibly have found that the appellant's conduct was reasonable so as to enable him to secure an acquittal through the route of s.5(3). (5) The judge was entitled on the evidence before him to conclude that the offence had been made out - that the appellant's conduct was unreasonable, having regard to the clear legitimate aim, of which the section was itself a necessary vehicle, to protect the rights of others and/or to prevent crime and disorder. There were also considerations under Art.9 and Art.17, weighing against permitting the appellant to rely on his right under Art.10(1) in the circumstances of the case.Appeal dismissed.

[2003] EWCH 1564 (Admin)