Case note on - Percy v Director of Pubic Prosecution [1995] 3 All ER 124 - Facts and Background of The Case

Within the overview of Breach of the Peace a key point to include is a threat of violence is necessary for a breach to occur. This has to be proved beyond reasonable doubt with a requirement for Mens Rea. In relation to the Human Rights Act the crucial conclusions rights are not absolute and on occasion may be overridden. In addition there is a twin requirement of balancing individual rights and the rights of the general public. Both extremes need to be met, tolerated and accommodated.

Each of these issues can be taken in more detail.

Breach of the Peace

As previously mentioned the District Judge took Lord Denning’s dicta into consideration when he ruled that Ms Percy was in Breach of the Peace. The district judge placed emphasis on the fact that the appellants insulting behaviour could have been avoided. In contrast on appeal, Mrs Justice Hallett believed the conviction was incompatible with Ms Percy’s right to protest peacefully on an issue she had strong feelings about. Mrs Justice Hallett here is clearly establishing a precedent that there must be violence or a threat of violence for a conviction. In previous caselaw this had been hinted at stating that, peaceful protest is not prohibited even if it is disrespectful of others.

        The issue of establishing proof beyond reasonable doubt does sound like a technical point. However it is often crucial, relating to a required standard of proof. In criminal cases unlike civil cases proof has to be proven beyond reasonable doubt. Breach is not classified as a criminal or civil case. It is based on the medieval power of JP’s. Due to this it is often said that only the civil standard of proof is required. The district Judge obviously followed this conservative view as he charged Ms Percy. In distinction the Divisional Court Judges took a more radical view stating that if a prison sentence is possible then a criminal standard of proof applies.

The Human Rights Act

The European Convention on Human rights (ECHR) and the associated Art.10 freespeach jurisprudence are central to this case, where courts had to decide if the restriction on free expression is as Art 10(2) demands,

“Necessary in a free society…for protection of …rights of others”

On this point Mr Patrick Hedley recognised the need of free speech under but believed that 10(2) applied.

Despite the initial outrage Ms Percy actions aroused, the Divisional court believed that insufficient weight was given to the presumption in the appellant’s favour of the right to freedom of expression a basic right.  Which is necessary for a number of reasons, which are all relevant to this case. The Human Rights Court as Strasbourg has attached highest importance to the protection of political expression seeing it as central to democratic societies, of individual’s self-fulfilment. Also the mixing of ideas promotes the best truth as illustrated in Austria v Lingens. Mrs Justice Hallett recognised that there should be no fixed matters which are off limits. It was stated by Mr Stammer that Flag denigration was a form of protest recognised the world over and has been protected by other jurisdiction even in America itself, Texas v Johnson suggesting that this issue was indeed not off limits.

Although both courts recognised that free speech was subject to exceptions. Only the divisional court followed precedent which stated it,

        “Must be narrowly interpreted and the necessity for any restrictions must be convincingly established”

The District judge believed that there was a pressing social need to prevent the denigration of the US flag, which is a symbol of freedom and democracy to the servicemen. Ms Percy’s rights therefore should be curtailed. The divisional court took a different stance that Ms Percy was motivated by her belief that the ‘star wars’ project was misguided and against national interests. The court believed she had a right to express perfectly lawful, political views.

Conclusion

This decision adds to Human Rights caselaw in Britain. The District Judge found against Ms Percy because of an important social need in a multi cultural society to prevent the denigration of objects of veneration. Mrs Justice Hallett found this far fetched and added the verdict had been made in error. This disagreement in verdict therefore was one about the significance attached to the law. The legal mind set of the judges are very different District Judge Heley’s view was more conservative and took a consequentalist approach to the HRA 10(2). In comparison Mrs Justice Hallett has embraced the HRA and has a more radical, deontogical view of the act. It does appear that this more radical outlook can be commended, as it is more in context with the times and the HRA itself.

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