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Another backward step for the Bill of Rights

By Steven | March 15, 2008

The best measure of a country’s commitment to free speech is its willingness to protect speech it doesn’t like. At the very least, a respect for free speech involves ensuring that any restrictions are clearly justifiable. That’s how our Bill of Rights works.

The Supreme Court passed this test in R v Brooker, using the Bill of Rights Act to rein in the police’s power to use the offence of disorderly behaviour to penalise a protester.

Justice John Hansen in the High Court has just faced the same test, and flunked it.

In Evans v R, he upheld the conviction of a sloshed guy attending a concert at a Queenstown winery last March who was annoyed that the police had closed the bars at 9pm, and taunted two police officers, thanking them sarcastically for ruining everyone’s fun, then accusing police of all being rapists and saying he’d better protect his girlfriend in case they raped her using batons. He was convicted of using insulting language. (He was also convicted of resisting police during his subsequent arrest).

Were his words insulting? Sure. Were they worth a criminal conviction? Come off it.

The judge seemed to accept that R v Brooker meant that “there must be a level of insult as to raise the prospect of public disorder”. (In Brooker, Tipping J talked of behaviour that “causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear.”)

The judge also accepted that police officers are unlikely to respond to such insulting language with violence. There was no real threat to public order. It doesn’t seem that anyone else overheard the words being used. So there was no aspect of public humiliation. Nor any element of bullying. The judge said that the guy “implied that both constables… would personally indulge in behaviour that involved serious criminal offending… aggravated when it involves elements of kidnap and brutality. The comments were calculated to hurt the personal feelings of the constables and the conclusion that it [sic] did was inevitable.”

Oh, please. He wasn’t seriously suggesting these things. He was just being a jerk because they’d closed the bar. (Actually, it’s not clear from the case whether or not the police were responsible for the closure of the bars, but if they weren’t, it doesn’t seem that they told him so.) Their feelings were hurt? That’s not enough for a criminal conviction.

The judge, to his great credit, considered the core values underlying freedom of expression, to see if they were in play here. Because the speech was “purely to insult and rile the police officers” and “for no other purpose”…

He was not trying to advocate change or persuade others in the hope of improving his life or anyone else’s. He was not trying to influence wider social, political or economic environment. He comments were not even social commentary…

Well, good on him for identifying some of the hallmarks of speech we should take particular care before restricting. And I’m not going to argue that Evans’ speech falls at the core of the sort of speech that’s vital to the nation. But the judge downplays the value of the defendant’s speech in three ways. First, Evans was in fact plainly trying to make a point. He thought the police had acted high-handedly in closing the bars early. He wasn’t insulting the officers for the sake of it. That may not be a lofty issue of political principle, but it was something that mattered to his life.

Second, the judge overlooks one of the other reasons we value speech: as an outlet for hostility. Evans was venting his spleen, expressing his frustration. On this rationale, if we give people some latitude to do that, then they’re less likely to react in even less acceptable ways.

Finally, the judge barely acknowledges that Evans was tapping into a well of deep public concern at abuse of police powers. That concern had even led to an inquiry into police rapes. I think this was very much “social commentary”, though it might not have been to the judge’s taste.

But Justice Hansen does seem to accept that there was something behind Evans’ insults:

I accept the topical nature of the insults, but I do not consider that to be a mitigating factor. If his comments had been to the effect that his trust in the force had been diminished by the behaviour of a minority of officers in the North Island it could be considered differently. But clearly he was angry at not being able to access more alcohol, and the insulting comments were designed to offend and aggravate the officers with the undoubted prospect of public disorder.

Right. So what Evans should really have said was this: “Good sirs, I must protest at the unseemly haste with which you have discontinued the refreshment factilities. Nor is this the first occasion upon which members of the police have acted to the public detriment. Indeed, my confidence in the police force has been much diminished by recent reports of abuses performed against young women. (By a tiny minority of police officers, I note. In the North Island). I verily believe it would be beneficial to all if the entire police force would act with more respect toward the interests of those from whom they ultimately derive their powers.”

That would have been okay. But judge: that’s pretty much what he did say. He just said it his way. I don’t believe for a second that the police officers actually thought Evans was suggesting that they personally would rape his girlfriend. Freedom of speech involves giving people room to express themselves in their own manner, particuarly when they’re saying things that are unpopular, or saying them in an uncivil way.

The judge continued:

I also accept that police officers, by virtue of their office and exposure, are of course required to put up with being exposed to a higher degree of invective and abuse. But in this case the comments in my view cross the line. There are no indications that the grossly inappropriate behaviour of the small number of officers permeates the entire force, and the public at large generally accepts that the police force is made up of a majority of dedicated and professional officers.

Um, is there actually evidence that this is what the public at large generally accepts? Or is it simply what the judge believes? I think this passage in the judgment is pernicious. Evans isn’t restricted to saying what’s true, or what the public or the judge generally accepts. Speech can be exaggerated or provocative or sarcastic, as this clearly was, to make a point. I worry about reasoning that says, it’s all right to be insulting if I think your insult was justified, or if the public might agree with it.

So: a bad call. Evans’ speech was hardly vital to the workings of democracy, but there’s no real justification for punishing him for it. I hope it gets appealed. 

Topics: NZ Bill of Rights Act, Protest speech | 7 Comments »

7 Responses to “Another backward step for the Bill of Rights”

  1. Anne Hunt Says:
    March 16th, 2008 at 10:57 am

    Thanks goodness we have lawyers like you Steven, who understand what freedom of speech truly is!
    I also hope this case is appealed.

  2. Kiwiblog » Blog Archive » Blog Bits Says:
    March 16th, 2008 at 2:54 pm

    […] Steven Price criticises a judgement where an “insulting language” conviction was upheld against a man who taunted two police officers. […]

  3. kiwitoffee Says:
    March 16th, 2008 at 4:00 pm

    So, a man gets drunk in public and insults two police officers and expects not to be charged with anything? Really?

    It is not my – nor anybody’s – right to get drunk in public or to abuse the police. Or at least I don’t think so. If it is, then we have a problem.

    People (myself included) who do either should expect there to be consequences, even a criminal charge.

  4. metcalph Says:
    March 16th, 2008 at 4:13 pm

    At the very least, a respect for free speech involves ensuring that any restrictions are clearly justifiable. That’s how our Bill of Rights works.

    The last time I looked, the Bill of Rights Act did not repeal legislation that place limits on the freedom of speech. Since s4 of the the Summary Offences Act clearly defines insulting language as a crime against public order, criticizing the judge for upholding a law passed by Parliament seems rather mendacious.

    He wasn’t seriously suggesting these things. […] Their feelings were hurt? That’s not enough for a criminal conviction.

    According to the Act that makes no difference. All that is needed is that he is reckless about whether any person is alarmed or insulted by his words. So his actions were sufficient for a criminal conviction whether you like it or not.

    He thought the police had acted high-handedly in closing the bars early. He wasn’t insulting the officers for the sake of it.

    This reeks of special pleading. Regardless of how justified his opinions of the police’s actions were, he still did not have the right to abuse them as he did.

    Second, the judge overlooks one of the other reasons we value speech: as an outlet for hostility.

    So if I were to breach a non-molestation order by swearing at someone in public, I should get off because the Bill of Rights means hostile speech should be protected as an release so I won’t do something worse?

    Finally, the judge barely acknowledges that Evans was tapping into a well of deep public concern at abuse of police powers.

    So we can abuse the police left right and centre so long as we are tapping into a well of deep public concern?

    I don’t believe for a second that the police officers actually thought Evans was suggesting that they personally would rape his girlfriend.

    I don’t believe for a second that you are actually guilty of child sex offences but if I were to accuse you of such, you would be insulted regardless of whether it is my actual belief or something I said to get a rise out of you.

  5. Steven Says:
    March 16th, 2008 at 4:52 pm

    True, the Bill of Rights does not repeal the Summary Offences Act. But section 6 of the Bill of Rights Act requires statutes to be interpreted consistently with freedom of expression. That’s what the Supreme Court was doing in R v Brooker. Even the judge in Evans accepted that mere insulting language was not enough. Do you seriously see a real threat to public order here?

    My reasoning is about the interpretation of that particular provision. I suggest that the judge was too ready to find that the restriction was justified and seemed to regard it as relevant that he (or a majority of the public in his eyes) didn’t agree with what was said or the way it was said. I also suggest that he didn’t properly consider the free speech arguments that ran contrary to his conclusion. I wasn’t talking about other parts of the law.

    I might add that it is clear that the police would not be able to sue for defamation for this conduct. It’s not clear there was publication to a third party (except perhaps to the other officer); the law generally treats mere invective as not creating a defamatory sting; and to the extent there was a sting there, defences of honest opinion or qualified privilege may apply. If this behaviour doesn’t even reach the standard of civil liability in the same field, I rather think it shouldn’t be penalised by the criminal law.

  6. metcalph Says:
    March 16th, 2008 at 5:22 pm

    True, the Bill of Rights does not repeal the Summary Offences Act. But section 6 of the Bill of Rights Act requires statutes to be interpreted consistently with freedom of expression. That’s what the Supreme Court was doing in R v Brooker.

    But for the Judge to have said the words were not insulting would have debased the meaning of insult to such an extent as to divorce it from the english language entirely so that people like you would be wondering why everybody hates lawyers so much. That’s not the situation with the Booker case as that turned on whether his conduct was disorderly. Hence they had greater latitude to reinterpret disorderly conduct in light of s6 of the BORA without distorting the meaning of the word entirely.

    Even the judge in Evans accepted that mere insulting language was not enough.

    You haven’t actually quoted him as saying so and that act makes it clear a number of exceptions apply (namely that if the person receiving the abuse wouldn’t find it offensive or that there was an expectation that the abuse wouldn’t be overheard). But you can’t argue that because the act allows a number of exceptions, further exceptions must be carved out.

    Do you seriously see a real threat to public order here?

    For starters, it’s an offence against public order, not a threat to public order. Secondly abusing the police in pursuing their duties is an incitement for other intoxicated patrons to similarly abuse them. And what do you have then? A riot.

    My reasoning is about the interpretation of that particular provision.

    The judge’s interpretation fell well within the actual meaning of the legislation. You would have been on far stronger ground if you criticized it as a trivial matter. However what made it nontrivial is the resistance of arrest. Had he simply gone with the cops when he was arrested, the matter would have ended with a night in the cells and a stiff talking to first thing in the morning. But since he resisted arrest, not only would the resistance have had to go before the court but the original offense for which he was arrested.

    I suggest that the judge was too ready to find that the restriction was justified […]

    It simply isn’t up to the Judge to find whether the restriction is justified – the BORA does not allow him to toss out acts if they are inconsistent with human rights.

    If this behaviour doesn’t even reach the standard of civil liability in the same field, I rather think it shouldn’t be penalised by the criminal law.

    I thought the crime was whether he made an insult, not whether the insult was true or not. Saying the crime shouldn’t be punished because the police could not win a defamation case is as material as saying the crime shouldn’t be punished because the police could not win a noise pollution case. The criminal element is and remains the insult.

  7. Steven Says:
    March 17th, 2008 at 8:22 am

    > You haven’t actually quoted him as saying so.

    “[25] Accepting for present purposes that the effect of Brooker indicates a change from Cotorceanu
    by introducing an element of public disorder, it is necessary to determine whether or not the appellant’s behaviour could be seen as encompassing
    such an element. In my view this requires that there must be a level of insult as to raise the prospect of public
    disorder.”

    I did link to the case. And I did use the key part of this quote.

    If the restriction is unjustified under the Bill of Rights Act, then the courts are required to try to interpret the law more narrowly if they can. This is what the Supreme Court did in R v Brooker, and it’s what the judge concluded he had to do here. This is not the same as overturning the statute.

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