NI Court of Appeal: ‘A deluge of immigrants that has virtually changed the face of Ballymena’ may be political speech, not hate speech

About this case:

• Citation:
  [2022] NICA 5
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mrs Justice Keegan

This appeal questioned whether the leaflets involved could be considered hate speech, or whether the conviction in question had instead been inconsistent with the right to freedom of expression contained in Article 10 of the European Convention on Human Rights.

This was an appeal by way of case stated, to assess whether the appellant’s conviction under the Public Order (Northern Ireland) Order 1987 was lawful. This is a form of appeal confined to determining questions of law, and the Court of Appeal’s powers on a case stated are specified in section 38(f) of the Judicature Act 1978.

Background

The conviction in question involved events on 20 October 2018, when the appellant assisted in the distribution of leaflets to households in Ballymena on behalf of a far-right political party called Britain First. The first page of the leaflet contained some images of people from an ethnic minority background and the following narrative:

“The people of Ballymena are furious at the massive influx of gypsy migrants from Eastern Europe. Anti-social behaviour has become common place and there have been attacks by migrants on local residents. Many local houses that could have been given to local people have been handed out to bus-loads of these migrants”.

The appellant was arrested and charged with one offence, as follows:

“That you, on the 20th of October 2018, within the vicinity of Moat Road, Ballymena, distributed written material which was threatening, abusive or insulting, intending thereby to stir up hatred or arouse fear or having regard to all the circumstances hatred was likely to be stirred up or fear was likely to be aroused thereby, contrary to Article 10(1) of the Public Order (Northern Ireland) Order 1987.”

On 25 July 2019 he was sentenced to a probation order for one year. His appeal was heard in the County Court, and the trial judge dismissed the appeal against conviction. The trial judge was asked to state a case on a point of law:

“Was the appellant’s conviction under Article 10 of the Public Order (Northern Ireland) Order 1987 compatible with Article 10 of the European Convention on Human Rights and Fundamental Freedoms?”

The Applicant’s Submissions

In his statement the appellant reiterated that they were not there to cause any trouble and that they had not experienced any issues. During his interview, the appellant (who was legally represented) accepted that he was handing out leaflets and he identified the leaflet.

“I was there. I wasn’t protesting against any Romanian, or any Bulgarians or anything. I was protesting against criminal elements who had entered, who had come into the town of Ballymena. Like if the UVF and the IRA were bombing the place, would I be sitting here being questioned? Know what I mean?”

He said he had nothing to do with the production of the document, but he had read the document and he was aware of the content.

In his written submissions the appellant maintained that the prosecution was inconsistent with Article 10 ECHR rights. The appellant made the case that the prosecution failed to establish the burden to the criminal standard that the offence was made out.

The prosecution noted that Article 10 of the ECHR is a qualified right and maintained that any interference was justified for the prevention of crime pursuant to Article 10(2).

The trial judge’s ruling

The trial judge approached this case by considering the following questions:

1. Is the leaflet or does it contain abusive or insulting material?
2. Did the defendants intend to stir up hatred or, having regard to all of the circumstances, hatred was likely to be stirred up or fear aroused thereby?

In answering, the trial judge found as follows:

“Having read the document in its entirety and – and applying normal common sense values to the language employed in the document, I answer both of those questions in the affirmative.”

Having regard to the rights of freedom of expression both at common law and under the Convention, the trial judge concluded that the contents of the leaflet were outside of the bounds of protection. As such, she dismissed the applicant’s appeal against conviction.

Court of Appeal ruling

The court was not convinced that the trial judge had conducted an adequate analysis of all the issues. The court relied heavily on precedent and noted that “a deciding court has to examine the case with a particular regard to the nature and wording of the impugned statements, the context in which they were published including whether they can be categorised as political speech, and their potential to lead to harmful consequences”.

The conviction of the appellant also involved an interference with his article 10 right to freedom of expression, and any such interference must be necessary by virtue of a legitimate aim (exhaustively set out in Article 10(2)) and proportionate to that aim.

The prosecution alleged there was a justification for interference for protection from crime and disorder. The trial judge did not analyse this justification in any respect.

The trial judge also failed to consider whether the speech was political speech, which was notable in a case where the appellant was clearly associated with a political group. Determining the extent to which the speech may contribute to a debate of public interest is a core criterion in analysing whether an interference is proportionate. There is also limited scope under Article 10(2) for restrictions on political speech or on questions of public interest.

Having failed to take into account all factors, the reasons provided could not be regarded as relevant and sufficient to justify the interference with the appellant’s freedom of expression.

Accordingly, the court concluded that the conviction was not compatible with Article 10 of the Convention as relevant and sufficient reasons had not been provided to justify the conviction.

The case was remitted to the trial judge with a direction that she provide relevant and sufficient reasons.