On 4 October 2021, during the Conservative Party Conference in Manchester, Iain Duncan Smith MP was followed by a group of protesters and reportedly assaulted with a traffic cone and subjected to verbal abuse whilst he was walking to a fringe event with his wife. Duncan Smith told the Spectator that “they were shouting all along and then they smashed the cone on the back of my head.” He also said that he had been called a “c***”, with the f-word shouted at him. In a video filmed shortly after the attack with cone, protesters can be seen pursuing Duncan Smith down the street, banging a drum, and shouting “Scum” and “Tory Scum”. This language echoed comments made by the Deputy Leader of the Labour Party, Angela Rayner, made not long before the Conservative Conference.

Three defendants were eventually charged in connection with the incident: Elliot Bovill with common assault in respect of the traffic cone assault; and Radical Haslam and Ruth Wood with using threatening or abusive words or behaviour, or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, contrary to section 5 of the Public Order Act 1986.  

With regards to the common assault, Paul Goldspring, the Chief Magistrate, found that there was no case to answer, since the CCTV evidence against Bovill was “vague and flawed” and that there were a “number of difficulties with the identification that had been made”, although he did accept that an assault had taken place. Goldspring later said that Radical Haslam and Ruth Wood were “both insulting and pejorative, and I don’t accept that that wasn’t their intention”, focusing on the use of the word “scum”, as it was not found that they word “c***” was said. However, they were acquitted after he found that the prosecution had not satisfied him to the criminal standard that their conduct was not reasonable, taking into account the rights to freedom of expression and assembly.  

Iain Duncan Smith strongly objected to the acquittal, saying that, “Seemingly you can now walk down the street screaming abuse at me, and your right to protest trumps my right not to be intimidated” and that he feared that it sent out the message that politicians were “fair game”.  A Telegraph article describing the details of the case was written in such a way as to potentially give readers the impression that Duncan Smith was referring to the dismissed charge in relation to the common assault (or at the very least it confused journalists) but the original quote was clearly addressing the section 5 Public Order Act acquittal which was made on human rights grounds. 

It is strongly arguable that Goldspring has taken a much broader view of human rights law than was justified

It is strongly arguable that Goldspring has taken a much broader view of human rights law than was justified. First, it should be noted, however, that there are grounds on which to apply rights under articles 10 and 11 of the European Convention on Human Rights to an interpretation of section 5 of the Public Order Act. In Abdul, the appellants had been convicted for a section 5 offence after they had staged a protest of a parade celebrating the homecoming of the Royal Anglian Regiment from its duties in Afghanistan and Iraq. The appellants had shouted: “British soldiers murderers”, “Baby killers” and “Rapists all of you” at the parade. They appealed the conviction in the High Court. The High Court dismissed that appeal, but said that in such cases the prosecution should prove that convictions were justified and proportionate with reference to the right to freedom of expression. The reasonableness defence in section 5(3)(c) is capable of being read to be compliant with that right. The conviction in Abdul was ultimately proportionate since the words were liable to cause an outbreak of serious violence, were defamatory and inflammatory, and went beyond the bounds of legitimate protest. Each case would be fact specific. 

Since article 10 would apply to the Duncan Smith case, the prosecution would need to prove that a conviction would be proportionate. The question relating to whether Goldspring reached the correct decision turns on the assessment made as to proportionality. The words shouted by the protesters were not nearly as strong as those shouted in Abdul, but, looking more closely at the context, Duncan Smith was being targeted as an individual whilst he was walking down the street with his wife, having loud abuse directed at him, to the accompaniment of the banging of a drum. Targeting two people in the street, and following them for several minutes in a hostile manner, is naturally more intimidating than shouting at a group of people from a picket line — the two people being in a more vulnerable position. Abdul noted the distinction between abusive words on placards and the more immediate effect of shouted words on public order. In a case in 2019, where a man named James Goddard had admitted to a section 5 offence with regards to following the MP Anna Soubry, calling her a Nazi, Senior District Judge Emma Arbuthnot had described the conduct as being “bullying behaviour” in a “sustained and relentless tirade”. In the context of the threats faced by politicians, the murders of Jo Cox and David Amess, it is troubling that a right to protest could extend to such a pursuit.  

The latitude given to protesters is also surprising given the strict approach the courts have often taken towards communications offences. Under section 127 of the Communications Act, it is an offence to send grossly offensive communications where there is the intention to insult those to whom the message relates or the risk must have been recognised by the sender. The communication need not be received, and it is not necessary to show that the person who did receive the message was offended. This has led to prosecutions for tasteless memes sent in group chats. Former police officer James Watts given a suspended sentence of 20 weeks’ imprisonment for sending a meme of George Floyd to a group chat. The courts have not approached proportionality of an interference with article 10 in the same way as with public order offences, even though a message sent as a joke to group chat is not nearly as intimidating as abuse in public.  

If there would be an appeal of the acquittal, it would likely be an appeal by way of case stated under section 111 of the Magistrates Courts Act 1980. Since articles 10 and 11 are most probably engaged, the appeal would concentrate on the approach taken with regards to proportionality. Proportionality is a less straightforward ground of appeal than an error of law. Appeal courts are more deferential to lower courts on these issues. In Ziegler, the Supreme Court said that an appeal court would consider “the error or flaw in the reasoning on the face of the case which undermines the cogency of the conclusion on proportionality”. As the reports of the case lack detail, it is difficult to predict the likelihood of whether Goldspring’s reasoning was flawed enough for his finding to be overturned, but if Goldspring had made an error of reasoning, and if he did not properly apply the relevant principles of law with regards to the acquittal, the High Court may allow an appeal. The conclusion on proportionality could be undermined if the context of the lengthy abuse directed at Duncan Smith whilst he was being followed was not taken into account.

The impact of the abuse on his wife should not be ignored, either, since the offence considers the effect of words or behaviour, or disorderly behaviour which is “within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby” and not just on the person against whom it is directed. Human rights law should not render the abuse of politicians so acceptable as to turn them into verbal punching bags.