BRUTUS
v.
COZENS
Lord Reid
Lord Morris of Borth-y-Gest
Viscount Dilhorne
Lord Diplock
Lord Kilbrandon
Lord Reid
my lords,
The charge against the Appellant is that on 28th June, 1971, during the
annual tournament at the All England Lawn Tennis Club, Wimbledon, he
used insulting behaviour whereby a breach of the peace was likely to be
occasioned, contrary to section 5 of the Public Order Act, 1936, as amended.
While a match was in progress on No. 2 Court he went on to the Court,
blew a whistle and threw leaflets around. On the whistle being blown nine
or ten others invaded the court with banners and placards. I shall assume
that they did this at the instigation of the Appellant though that is not made
very clear in the Case Stated by the Magistrates. Then the Appellant sat
down and had to be forcibly removed by the police. The incident lasted for
two or three minutes. This is said to have been insulting behaviour.
It appears that the object of this demonstration was to protest against the
Apartheid policy of the Government of South Africa. But it is not said
that that Government was insulted. The insult is said to have been offered
to or directed at the spectators.
The spectators at No. 2 court were upset: they made loud shouts,
gesticulated and shook their fists and while the Appellant was being removed
some showed hostility and attempted to strike him.
The Magistrates came to the conclusion that the Appellant’s behaviour was
not insulting within the terms of the offence alleged. They did not consider
the other points raised in argument but dismissed the information without
calling upon the Appellant.
On a Case Stated a Divisional Court set aside the judgment of the
Magistrates and remitted the case to them to continue the hearing of the case.
They certified as a point of law of general public importance:
” Whether conduct which evidences a disrespect for the rights of
” others so that it is likely to cause their resentment or give rise to
” protests from them is insulting behaviour within the meaning of
” section 5 of the Public Order Act, 1936.”
” Any person who in any public place or at any public meeting uses
” threatening, abusive or insulting words or behaviour with intent to
” provoke a breach of the peace or whereby a breach of the peace is
” likely to be occasioned shall be guilty of an offence.”
Subsequent amendments do not affect the question which we have to consider.
It is not clear to me what precisely is the point of law which we have to
decide. The question in the Case Stated for the opinion of the Court is
” Whether, on the above statement of facts, we came to a correct determina-
” tion and decision in point of law “. This seems to assume that the meaning
of the word ” insulting ” in section 5 is a matter of law. And the Divisional
Court appear to have proceeded on that footing.
In my judgment that is not right. The meaning of an ordinary word of
the English language is not a question of law. The proper construction of a
statute is a question of law. If the context shows that a word is used in an
unusual sense the Court will determine in other words what that unusual
sense is. But here there is in my opinion no question of the word ” insulting ”
being used in any unusual sense. It appears to me, for reasons which I shall
give later, to be intended to have its ordinary meaning. It is for the tribunal
which decides the case to consider, not as law but as fact, whether in the
whole circumstances the words of the statute do or do not as a matter of
ordinary usage of the English language cover or apply to the facts which
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have been proved. If it is alleged that the tribunal has reached a wrong
decision then there can be a question of law but only of a limited character.
The question would normally be whether their decision was unreasonable in
the sense that no tribunal acquainted with the ordinary use of language could
reasonably reach that decision.
Were it otherwise we should reach an impossible position. When consider-
ing the meaning of a word one often goes to a dictionary. There one finds
other words set out. And if one wants to pursue the matter and find the
meaning of those other words the dictionary will give the meaning of those
other words in still farther words which often include the word for whose
meaning one is searching.
No doubt the Court could act as a dictionary. It could direct the tribunal
to take some word or phrase other than the word in the statute and consider
whether that word or phrase applied to or covered the facts proved. But
we have been warned time and again not to substitute other words for the
words of a statute. And there is very good reason for that. Few words
have exact synonyms. The overtones are almost always different.
Or the Court could frame a definition. But then again the tribunal would
be left with words to consider. No doubt a statute may contain a definition
—which incidentally often creates more problems than it solves—but the
purpose of a definition is to limit or modify the ordinary meaning of a word
and the Court is not entitled to do that.
So the question of law in this case must be whether it was unreasonable to
hold that the Appellant’s behaviour was not insulting. To that question
there could in my view be only one answer—No.
But as the Divisional Court have expressed their view as to the meaning
of ” insulting ” I must, I think, consider it. It was said: ” The language of
” section 5, omitting words which do not matter for our present purpose,
” is this: ‘Any person who in any public place . . . uses . . . insult-
” ‘ ing …. behaviour with intent to provoke a breach of the peace or
” ‘whereby a breach of the peace is likely to be occasioned, shall be guilty
” ‘ of an offence ‘. It therefore becomes necessary to consider the meaning
” of the word ‘insulting’ in its context in that section. In my view it is not
” necessary, and is probably undesirable, to try to frame an exhaustive
” definition which will cover every possible set of facts that may arise for
” consideration under this section. It is, as I think, quite sufficient for the
” purpose of this case to say that behaviour which affronts other people, and
” evidences a disrespect or contempt for their rights, behaviour which reason-
” able persons would foresee is likely to cause resentment or protest such as
” was aroused in this case, and I rely particularly on the reaction of the crowd
” as set out in the case, is insulting for the purpose of this section.”
I cannot agree with that. Parliament had to solve the difficult question
how far freedom of speech or behaviour must be limited in the general public
interest. It would have been going much too far to prohibit all speech or
conduct likely to occasion a breach of the peace because determined
opponents may not shrink from organising or at least threatening a breach
of the peace in order to silence a speaker whose views they detest. There-
fore vigorous and it may be distasteful or unmannerly speech or behaviour
is permitted so long as it does not go beyond any one of three limits. It
must not be threatening. It must not be abusive. It must not be insulting.
I see no reason why any of these should be construed as having a specially
wide or a specially narrow meaning. They are all limits easily recognisable
by the ordinary man. Free speech is not impaired by ruling them out. But
before a man can be convicted it must be clearly shown that one or more
of them has been disregarded.
We were referred to a number of dictionary meanings of “insult” such
as treating with insolence or contempt or indignity or derision or dishonour
or offensive disrespect. Many things otherwise unobjectionable may be said
or done in an insulting way. There can be no definition. But an ordinary
sensible man knows an insult when he sees or hears it.
Taking the passage which I have quoted, “affront” is much too vague a
word to be helpful ; there can often be disrespect without insult, and I do
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not think that contempt for a person’s rights as distinct from contempt for
the person himself would generally be held to be insulting. Moreover there
are many grounds other than insult for feeling resentment or protesting. I
do not agree that there can be conduct which is not insulting in the ordinary
sense of the word but which is ” insulting for the purpose of this section “.
If the view of the Divisional Court was that in this section the word
” insulting ” has some special or unusually wide meaning, then I do not
agree. Parliament has given no indication that the word is to be given any
unusual meaning. Insulting means insulting and nothing else.
If I had to decide, which I do not, whether the Appellant’s conduct insulted
the spectators in this case, I would agree with the Magistrates. The spectators
may have been very angry and justly so. The Appellant’s conduct was
deplorable. Probably it ought to be punishable. But I cannot see how it
insulted the spectators.
I would allow the appeal with costs.
Lord Morris of Borth-y-Gest
MY LORDS,
The charge which was brought against the Appellant was that he ” Did
” use insulting behaviour whereby a breach of the peace was likely to be
” occasioned at the All England Lawn Tennis Club, Church Road, Wimble-
don, S.W.10 on 28th June, 1971 “. Having found the facts the Magistrates
came to the conclusion that the Appellant’s behaviour was not ” insulting
” behaviour ” within the terms of the offence charged under section 5 of
the Public Order Act, 1936, as amended: it was therefore unnecessary for
them to consider any further matters. Under that section, provided other
matters are proved, a person will commit an offence if he uses threatening
behaviour or if he uses abusive behaviour or if he uses insulting behaviour.
In the present case the Magistrates had to consider whether the Appellant
had used insulting behaviour. The words ” insulting behaviour ” are words
that permit of ready comprehension. Having found the facts it was for
the Magistrates applying rational judgment and commonsense to reach
decision. Manifestly they thought that however else the Appellant’s
behaviour might be characterised it was not to be described as insulting.
Having had the case of Bryan v. Robinson [I960] 2 All.E.R. 173 cited to
them, in which Lord Parker C.J. had pointed out that persons may be
annoyed by behaviour which is not insulting behaviour, the Magistrates may
have thought that the Appellant’s behaviour was annoying or very annoying
but yet was not on that account to be held to have been insulting. The
Magistrates may have considered that in most cases insulting behaviour is
behaviour which insults some person or persons: they may have thought
that after the incident neither a spectator nor a player, however displeased
or annoyed he might have been, could sensibly have complained that he had
been ” insulted “.
In my view, the Magistrates’ decision was really a decision of fact just as
would be the decision of a jury if called upon to decide whether someone
had used insulting behaviour. The decision either of Magistrates or of a jury
could be attacked if there had been misdirection. In the present case I can
see no ground at all for suggesting that the Magistrates had misdirected
themselves.
The decision of the Magistrates could, in my view, only be reversed if it is
held that the facts as found show as a matter of law that the Appellant’s
behaviour was insulting. What the Divisional Court have done is to lay
down a definition of the words ” insulting behaviour ” and then to say that
the Appellant’s behaviour came within the definition. But the Act contains
no such definition and indeed no words of definition are needed. The words
of the section are clear and they convey of themselves a meaning which the
ordinary citizen can well understand. The suggested definition would enlarge
what Parliament has enacted, and it would do this in relation to a criminal
offence. It would lay down that behaviour which affronts other people and
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evidences a disrespect or contempt for their rights and which reasonable
people would foresee would be likely to cause resentment or protest is
insulting behaviour for the purposes of section 5. It may well be that
behaviour which is insulting will often be behaviour which shows a disrespect
or contempt for people’s rights but it does not follow that whenever there is
disrespect or contempt for people’s rights there must always be insulting
behaviour. Furthermore, there may be many manifestations of behaviour
which will cause resentment or protest without being insulting.
In the submissions made on behalf of the Respondent it was acknowledged
that the definition laid down by the Divisional Court was too wide and
that it would embrace conduct going beyond what Parliament had intended.
It was not supported. An alternative definition was propounded. It was
suggested that in the concept of insulting behaviour there are the two
elements (a) that it is deliberate behaviour which is intended or is likely to
give offence and (b) that it is behaviour which is contemptuous of or about
those who are to be offended. My Lords, I find it unnecessary and indeed
undesirable to compose a definition of a word which is in general use and
which presents no difficulty of application or understanding. If the facts as
found by the Magistrates (which I do not recount because they are recorded
in the Case Stated) were put to a juryman who was asked to say whether,
in his view, they constituted insulting behaviour I would think it probable
that his answer would be the same as that given by the Magistrates. But
whether this be so or not I find it impossible to say that on the facts as they
found them the Magistrates were obliged as a matter of law to find that the
behaviour was insulting.
For the reasons which I have given I would allow the appeal and set aside
the order made by the Divisional Court.
Viscount Dilhorne
MY LORDS,
After the magistrates at Wimbledon had dismissed the information laid
against the Appellant without calling on him to answer the prosecution’s
case, they were asked to state a case. They did so and in paragraph 7
thereof said:
” Having considered the evidence and the authorities cited to us, we
” came to the conclusion that the Respondent’s ” (the present Appellant)
” behaviour was not insulting within the terms of the offence alleged
” against him “.
and in paragraph 8 that
” The question for the opinion of the High Court is whether, on the
” above statement of facts, we came to a correct determination and
” decision in point of law.”
The case stated did not state precisely what was the question of law on
which the opinion of the High Court was sought. It may be because the
Magistrates found some difficulty in formulating it. The Divisional Court,
however, treated the case as raising the question of the meaning to be given
to the word ” insulting ” in the expression ” insulting behaviour ” in section 5
of the Public Order Act, 1936.
The Divisional Court allowed the appeal but, while refusing leave to appeal
to this House, certified that a point of law of general public importance was
involved, namely:
” Whether conduct which evidences a disrespect for the rights of
“others so that it is likely to cause their resentment or give rise to
” protests from them is insulting behaviour within the meaning of
” section 5 of the Public Order Act 1936 “.
The Appellant now appeals with the leave of this House.
In the Divisional Court in the course of his judgment, with which the other
members of the Court agreed, Melford Stevenson J. said : —
” behaviour which affronts other people, and evidences a disrespect
” or contempt for their rights, behaviour which reasonable persons would
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” foresee is likely to cause resentment or protest such as was aroused
” in this case, and I rely particularly on the reaction of the crowd as set
” out in the case, is insulting for the purpose of this section.”
I do not think that this is right. The Public Order Act, 1936, by section 5
made it an offence for a person to use threatening, abusive or insulting
behaviour whereby a breach of the peace is likely to be occasioned. It does
not make any kind of behaviour which is likely to lead to a breach of the
peace an offence. Behaviour which evidences a disrespect or contempt for
the rights of others does not of itself establish that that behaviour was
threatening, abusive or insulting. Such behaviour may be very annoying to
those who see it and cause resentment and protests but it does not suffice
to show that the behaviour was annoying and did annoy for a person can
be guilty of annoying behaviour without that behaviour being insulting. And
what must be established to justify conviction of the offence is not that the
behaviour was annoying but that it was threatening, abusive or insulting.
The reaction of those who saw the behaviour may be relevant to the
question whether a breach of the peace was likely to be occasioned but it
is not, in my opinion, relevant to the question, was the behaviour threatening,
abusive or insulting.
The Act does not define the meaning to be given to the word ” insulting ”
and the cases cited in this House, the Divisional Court and before the
Magistrates do not say or suggest that it should be given any special
meaning. Unless the context otherwise requires, words in a statute have to
be given their ordinary natural meaning and there is in this Act, in my
opinion, nothing to indicate or suggest that the word ” insulting ” should
be given any other than its ordinary natural meaning.
The Magistrates had two questions to decide ; first, was the Appellant’s
behaviour insulting and, secondly, if so, was it likely to occasion a breach
of the peace. Both were questions of fact for them to decide. In considering
the first, it was relevant for them to consider whether the behaviour was
such as to indicate an intention to insult anyone, and if so whom ; and if
the Magistrates in this case did so, they may well have concluded that the
Appellant’s behaviour did not evince any intention to insult either players
or spectators, and so could not properly be regarded as insulting.
In my opinion, the answer to the question certified by the Divisional Court
is in the negative for proof of the matters therein referred to does not suffice
to show or tend to show that the behaviour was insulting and the decision of
the Divisional Court was wrong.
I would therefore allow the appeal with costs.
Lord Diplock
MY LORDS,
I agree with your Lordships that this appeal should be allowed.
Lord Kilbrandon
MY LORDS,
I agree that this appeal should be allowed. At the close of the prosecution
evidence, the Magistrates found no case to answer, and gave their decision
in the following terms: ” Having considered the evidence and the authorities
” cited to us, we came to the conclusion that the Respondent’s behaviour
” was not insulting within the terms of the offence alleged against him
” ‘ Insulting behaviour’ being an essential element of an offence within
” section 5 of the Public Order Act, 1936, we did not consider the other
” points raised before us and accordingly dismissed the information without
” calling upon the Respondent.” The authorities were Bryan v. Robinson
[1960] 2 All E.R. 173, Jordan v. Burgoyne [1963] 2 Q.B. 744 and Cooper &
Ors v. Shield [19711 2 All E.R. 917. In the first, a case of alleged insulting
behaviour, Lord Parker C.J. had laid it down that ” Somebody may be
6
” annoyed by behaviour which is not insulting behaviour.” We must assume
that the Magistrates weighed the evidence against this ruling, and appreciated
accordingly that, while the spectators may have been annoyed, that did not
necessarily mean that they had been insulted. The second relates to insulting
words which might have been expected to, and did, cause a riot to break
out at a public meeting; this could not have assisted the Magistrates or
affected their decision. The third is concerned with whether the locus of
the incident was a public place, and the present point did not arise. No
authority was cited to the Magistrates, or indeed before this House, which
declares that any positive test is available by which insulting behaviour can
be recognised as such ; nevertheless, we were in effect invited to apply some
such test. We were asked to hold that, accepting as facts the incidents
described in the stated case, it followed as matter of law that the conduct
of the accused was insulting and therefore, in the circumstances, criminal.
This seems to me to be impossible. It may well be that if the Magistrates
had found the Appellant’s behaviour to have been insulting, their decision
would not have been challengeable, but that only means that their decision,
whichever way it went, must have been a decision on a question of fact; no
question of law can be spelled out of their evaluation of behaviour which,
in the absence of a specific finding that it was of an insulting character, is
capable of more than one interpretation. The drawing of inferences from
behaviour is a fact-finding process. It would be unwise, in my opinion, to
attempt to lay down any positive rules for the recognition of insulting
behaviour as such, since the circumstances in which the application of the
rules would be called for are almost infinitely variable ; the most that can
be done is to lay down limits, as was done in Bryan v. Robinson (supra), in
order to ensure that the statute is not interpreted more widely than its terms
will bear.
I did not myself find the quotation of dictionary definitions helpful, as it
might perhaps have been had the question been whether, the Magistrates
having convicted, there is any accepted meaning of the word ” insulting ”
which they might be said legitimately to have adopted in coming to their
conclusion. But ” insulting ” is an ordinary uncomplicated English word.
Boswell defends Dr. Johnson, to whose work we were referred, against a
charge of obscurity in his definitions, by quoting from the preface to the
dictionary: “To explain, requires the use of terms less abstruse than that
” which is to be explained, and such terms cannot always be found. . . . The
” easiest word, whatever it may be, can never be translated into one more
” easy.” One felt the force of this upon being offered as exegetical sub-
stitutions for the word ” insult” such words as ” insolence ” or ” affront”.
All three words are as much, or as little, in need of interpretation.
It was conceded before us that the question which has been submitted to
us as involving a point of law of public importance could not be answered
in the affirmative. To do so would be to declare that, among other mani-
festations, ” conduct which evidences a disrespect for the rights of others
” which is likely to cause their resentment ” must as matter of law be held
to be insulting, and punishable under the Public Order Act, 1936. A
common example might be, an assertion, by throwing down a gate, of a
public right of way. This would be showing disrespect of a right of property,
and would certainly be resented, but the behaviour might in certain circum-
stances be in fact lawful. I would accordingly allow this appeal.
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