‘What Calling Iain Duncan Smith ‘Tory Scum’ Tells Us About the Role of Articles 10 and 11 in Public Protest Prosecutions: a Question of ‘Nuance’ or a Fog of Uncertainty?

The impact of Articles 10 and 11 of schedule 1 of the Human Rights Act 1988 on criminal prosecutions brought against defendants engaging in public protest activities has received substantial analysis by the higher courts in recent years. Much of this litigation has concerned the offences of obstruction of the public highway and aggravated trespass on privately owned land. Its doctrinal significance has lain in the – short-lived - raising of the possibility by the Supreme Court in DPP v Ziegler ([2021] UKSC 23; [2022] A.C. 408) that conviction in such cases would invariably require the prosecution to persuade the trial court – independently of and in addition to proving the various element of the offence simpliciter – that a guilty verdict would be compatible with Article 10 and/or Article 11 of the Human Rights Act. That presumption now seems to have been misconceived, the Supreme Court having more recently confirmed in In re Abortion Services (Safe Access Zones) (Northen Ireland) Bill ([2022] UKSC 32; [2023] A.C. 505) the conclusions reached by lower courts that convictions for certain criminal offences, even if committed in the context of public protest over political issues, are intrinsically consistent with Articles 10 and 11 to the effect that no freestanding proportionality analysis is required. The Abortion Services judgment has described this as a ‘nuanced’ question. This paper traces the ebbs and flows of this argument through the recent case law, and then explores the complexities and difficulties that the evident inconsistencies in this line of authority has created by focusing in detail on its application to the ‘pure speech’ crime created by s.4A of the Public Order Act 1986 in R (on the application of DPP v Manchester City Magistrates Court and (1) Ruth Wood (2) Radical Haslam ([2023] EWHC 2938 (Admin)). The argument made is that although a headline reading of the judgment (‘Divisional Court approves the acquittal of protesters who called Conservative MP “Tory Scum”’) might suggest that the Court has approved an expansive approach to the Convention Right protection of public protest speech, a closer analysis indicates that people who wish to couch their political protests in insulting or abusive or threatening terms should tread very carefully before they take the step of expressing their ideas.