If Hammond v. DPP EWHC 69 (2004) had taken place in 2008, would it have held?

Question

In 2006 Section 29J was added the Public Order Act 1986 which provides freedom of belief and expression defense for religiously aggravated versions of public order offences.

Hammond v DPP applies a balancing exercise in a very different style than appears to have been envisioned by parliament in providing s29J. Admittedly s29J doesn't seem to be directly applicable to the case in question. But it gives an insight on parliamentary intent as to how they might have intended ECHR Article 9 & 10 rights to be balanced against public interest of public order.

If the case in question had been heard after parliament had assented the addition of s29J, would there have been any impetus for the court to have considered the intent of parliament that could have been seen through their inclusion of the s29J defence in other offences?

It would seem quite clear that the framers of s29J would have had definite qualms about prohibiting people from advocating the idea that homosexuality is immoral so long as no vitriol is directed at homosexuals as such. It seems clear that they felt people should be allowed to criticize and condemn ideas and ways of life, if not their followers per se.

Put another way is the idea of consistency reflected by the imperative of stare decisis when basing decisions on case law also apply when ruling on statutory intent?

In other words precedent judicial intent appears to be binding and required to maintain consistency. Is such a principle of consistency equally applicable to legislative intent?

Answer 1

If Hammond v. DPP EWHC 69 (2004) had taken place in 2008, would it have held?

Probably, yes, if he were to be prosecuted under the original indictment.

Hammond was convicted under section 5 Public Order Act 1986 - which is in Part 1 of the Act.

section 29J does not apply to s.5 prosecutions as it is limited to Part 3A only - being offences etc concerning Hatred against persons on religious grounds or grounds of sexual orientation:

29J Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

Hammond's executors (he died soon after being convicted) lodged a posthumous appeal, which failed after careful consideration of the facts and Hammond's Convention Rights, concluding that the Magistrates were...

...entitled to conclude, on the facts which they found, that an offence under section 5 of the Public Order Act 1986 had been established. For these reasons I would dismiss this appeal. Source: [2004] EWHC 69 (Admin)

And, according to Hammond's Wikipedia page a further appeal to the European Court of Human Rights was dismissed.

Answer 2

"Put another way does the idea of consistency reflected by the imperative of stare decisis when basing decisions on case law also apply when ruling on statutory intent?"

If a court considers fact X in light of law Y and reaches a decision based on its interpretation of Y, that decision (generally) sets a precedent which will be either binding or persuasive (depending on the court) on future courts which have to consider facts similar to X.

However, if Parliament subsequently amends Y to Z, then that original decision no longer sets a precedent insofar as the decision relates to the parts of the law that has changed. Any subsequent court considering facts similar to X will have to re-interpret the law and then reach a new decision which may or may not depart from the original one.

So, the court in Hammond v DPP may have reached a different decision if all of the following apply:

• The case was decided after the insertion of Section 29J.
• Section 29J causes a change in the legal reasoning which lead to the decision (the ratio).
• That change in the legal reasoning leads to a different conclusion.

Note: my answer is based on general principles. I haven't looked at the specific case or formed an opinion on what the court may have done in light of s 29J.