ל Being Heckled By Homosexuals Is a Crime in England. Eugene Volokh reports on an incident which shows that an outspoken conservative probably isn't safe from prosecution not just in Canada, but in England, further narrowing the list of countries in which I am safe taking my next sabbatical (goodbye, British Columbia, Oxford, and Cambridge!). The elderly Pastor Hammond, frail enough to be just a few years from death, concealed a sign saying 'Stop Homosexuality' while on the bus because he knew it elicited hostility. When he got out and did display it, he was heckled and had dirt and water thrown at him by a crowd of about 30 or so people. They were not prosecuted, but he was-- and vigorously. The court, and an appeals court, decided that he was criminally guilty, because his sign was insulting and his conduct in displaying it unreasonable.

That's hard to believe, but take a look at the evidence I found. Here's the story as Professor Volokh quotes it:

A PREACHER who spoke out against the "sin" of homosexuality -- inflaming a Bournemouth crowd and sparking a furore over freedom of speech -- was rightly convicted of a public order offence, top judges have ruled. . . .

The late Mr Hammond, a preacher for 20 years, was prosecuted after holding a controversial sign while preaching in The Square, Bournemouth, in October 2001.

The sign contained the words: "Stop Immorality, Stop Homosexuality, Stop Lesbianism", as well as making references to Jesus.

Lord Justice May, sitting with Mr Justice Harrison, at the High Court in London, was told the sign caused a furore as a group of 30 to 40 people gathered round.

Hugh Tomlinson, QC, appearing for Mr Hammond's executors [Hammond had died by then], said: "He (Mr Hammond) was subjected to a number of assaults. Soil was thrown at him and water poured over his head.

"Someone tried to seize the sign and he was knocked to the ground. He was the victim of the assault, not the perpetrator." . . .

Mr Hammond was eventually arrested for a breach of the peace. He was then charged and convicted under the 1986 Public Order Act for displaying a sign which was "threatening, abusive or insulting within the sight of a person likely to be caused harassment, alarm or distress".

He was fined �300 and ordered to pay �395 in legal costs.

The magistrates decided the restriction on Mr Hammond's right to freedom of expression under Article 10 of the European Convention on Human Rights had the legitimate aim of preventing disorder in the light of the crowd's reaction to his sign.

They concluded his behaviour went beyond that of legitimate protest.

Mr Tomlinson said that it had been wrong to prosecute Mr Hammond under public order legislation because he did not use offensive, stereotypical language on his sign.

Lord Justice May told the court: "I have not found this question easy because it is certainly correct that the words on the sign are short and not expressed in intemperate language.

"I have considered very carefully whether the court should conclude that the words on the sign were incapable of being held to be insulting.

"And I have come to the conclusion that it was open to the magistrates to reach the conclusion that they did." . . .

The law is interesting here, because it seems that this is like the Texas flagburning statute that the U.S. Supreme Court found unconstitutional. The speech is not itself illegal, but it is illegal if anyone objects strongly enough.

Professor Volokh was unable to tell if any of the hecklers were also prosecuted, an important point. It seems not, if Sean Bryson can be trusted:

Earlier this year, eccentric local preacher Harry Hammond, aged 74, was quoting Bible texts in Bournemouth Square, with placards saying:

"Stop Homosexuality" and "Stop Lesbianism". A local gay activist saw him and summoned friends on his mobile phone, who then pelted him with mud and water before wrestling him to the ground where he suffered minor injuries to his head. The Police arrested Hammond, but no-one else. When the case came to Court, the CPS arranged for a material witness to be flown 9,000 miles to and from Australia to give evidence. She was told by the CPS:

"It's an important human rights case". Hammond was found guilty (under different sections of the Public Order Act), fined �300 and ordered to pay �365 costs. The Court ordered the destruction of his placards.

The prosecutor seems to have made this a top-priority case. Remember, too, that Britain has been suffering an unprecedented crime wave, so this case must have displaced many burglaries and larcenies.

Here's what Lexis has to say about Hammond v Director of Public Prosecutions.

This case digest has been summarised by LexisNexis UK editors.

Section 5 of the Public Order Act 1986, so far as material, provides '(1) A person is guilty of an offence if he-(b) displays 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 thereby ...(3) It is a defence for the accused to prove-(c) that his conduct was reasonable.'

This case digest has been summarised by LexisNexis UK editors.

The defendant was an evangelical Christian who had been a preacher for 20 years. He had deeply held religious beliefs and a desire to convert others to his way of thinking. During the summer of 2001 the defendant had a large double-sided sign made bearing the words 'Stop Immorality', 'Stop Homosexuality' and 'Stop Lesbianism' on each side and attached to a pole. The defendant travelled by bus to preach with the sign. During the bus journey the defendant covered the sign with a black plastic bin-liner as he believed the sign might cause a fracas if displayed inside the bus, because of reaction he had previously received because of it. The defendant began preaching holding the sign upright so that it was clearly visible to passers by. A group of 30 to 40 people gathered around, arguing and shouting, some people in the crowd were angry and others distressed. Police officers attended the scene. One of them spoke to the defendant and asked him to take the sign down and leave the area. The defendant refused saying that he was aware that his sign was insulting because he had had a similar reaction before on another occasion, but that he intended to return the following Saturday to preach with the sign again. The defendant was arrested for breach of the peace. He was charged with an offence under s 5 of the Public Order Act 1986.

The justices were of the opinion that the words on the sign were insulting and caused distress to persons who were present and that the defendant was aware of that fact. They stated that the restriction of the defendant's right to freedom of expression under art 10 of the European Convention on Human Rights had a legitimate aim of preventing disorder and that there was a pressing social need for the restriction. They found that in the circumstances the defendant's conduct was not reasonable and therefore he had not brought himself within the defence contained in s 5(3) of the Act. The defendant was convicted. He appealed by way of case stated.

The issue for the court was whether having regard to arts 9 and 10 of the Convention on the facts found by the justices the defendant had been properly convicted.

The appeal would be dismissed.

The decision of the justices had not been perverse and the defendant had been properly convicted.

The questions the justices had to consider when dealing with an offence under s 5 of the 1986 Act were firstly whether the words on the sign were, in all the circumstances, insulting, and secondly whether the defendant had established that his conduct was reasonable having regard to arts 9 and 10 of the Convention. In the instant case the justices had clearly demonstrated that they had addressed those questions.

Norwood v DPP [2003] All ER (D) 59 (Jul) applied.

Thus, Professor Volokh's story not only stands up to web search, but the facts become more outrageous with each new piece of evidence.

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