Five Muslim protestors have lost an appeal against their conviction for shouting abuse and hatred at British soldiers returning from Afghanistan.
The ruling has been widely welcomed as a common sense decision in which the judges made helpful comments about the importance, and limits, of free speech.
The five demonstrators raged against the troops’ homecoming parade in Luton in 2009, chanting that the soldiers were rapists, murderers and baby killers.
They were convicted of using threatening, abusive or insulting words contrary to Section 5 of the Public Order Act.
The Muslims appealed against the conviction, claiming it breached their human rights to free speech.
But two High Court judges have dismissed the claims, ruling that the Muslims’ behaviour went well beyond legitimate protest.
Lord Justice Gross said: “There was all the difference in the world between expressing the view that the wars in Iraq and Afghanistan were illegal or immoral and that British forces should not be engaged in them and the abusive and insulting chants of the appellants.
“To attend a parade of this nature and to shout that this country’s soldiers were ‘murderers’, ‘baby killers’, ‘rapists all of you’ who would or should ‘burn in hell’ gave rise to a very clear threat to public order.”
In rejecting the appeal Lord Justice Gross was nevertheless careful to make general comments regarding the importance of free speech and the reasons why it is sometimes necessary to limit it.
He said that legitimate protest may indeed be offensive, or even distasteful, without necessarily being criminal.
He also said that the legal justification for interfering in the right to free speech should be narrowly interpreted.
And he said the criminal law ought only be used to interfere with free speech if it is proportionate and necessary because of a threat to public disorder. Context was of first importance, he added.
But, he said, the threat of public disorder does not always mean the police should halt a protest. Sometimes, it may mean defending the rights of the protestor.
In striking the right balance, he said that: “the focus on minority rights should not result in overlooking the rights of the majority”.
In hearing the case, the judges considered the case of Harry Hammond, an autistic Christian convicted of displaying a sign in Bournemouth in 2001 saying homosexuality was immoral.
Lord Justice Gross said that the case of the five Muslims ranting at soldiers was worse than the Hammond case.
His comments on why the Harry Hammond case failed on appeal were significant. He said it is “most helpfully seen as illustrating the reluctance of this Court to interfere with the decision of the justices.”
Reacting to news that the five Muslims lost their appeal, The Christian Institute welcomed the decision. Spokesman Mike Judge said it was a common sense ruling.
He said: “Obviously the court is right to reject the Muslims’ appeal. Shouting threats and abuse at brave troops as they return from the battlefield goes beyond legitimate protest and free speech.
“Their conduct went beyond merely ‘insulting’ and it was right that they were prosecuted.
“I also welcome comments made by the judges regarding free speech. That is why we are calling for Section 5 of the Public Order Act to be improved so that the expression of legitimate opinion does not lead to unjust arrests.
“This case shows that the word ‘insulting’ may be removed from the Section 5 offence without affecting police power to intervene in cases where public order is genuinely at risk.”