Criminalising thought crime?

Kuljit Bhogal KC and Sarah Salmon explain why a defendant was recently convicted of breaching a PSPO near an abortion clinic.

Last month, a man was convicted of breaching a Public Spaces Protection Order (PSPO) which prohibits prayer outside a Bournemouth abortion clinic. The defendant, Mr Smith-Connor, had informed the officer that he was praying silently for his son. Mr Smith-Connor’s body language and positioning allowed the officer to form a reasonable belief that he was in breach of the PSPO such that he could be asked to leave. His failure to leave the safe zone amounted to a breach of the PSPO.

Background

On 13 October 2022, Bournemouth, Christchurch and Poole Council (“the Council”) imposed a Public Spaces Protection Order (“PSPO”) in respect of the area surrounding the British Pregnancy Advisory Service clinic on Ophir Road, Bournemouth.

Mr Smith-Connor, found to be a devout Christian who considers human life sacred from conception, is the leader of “Choose Life Southampton” and involved in Pro-Life activities at the Southampton abortion clinic.

The safe zone protected by the Council’s PSPO is not in Southampton but in Bournemouth. Prior to his attendance in the safe zone outside the Bournemouth clinic, Mr Smith-Connor had written to the Council making his reasons for his presence clear:

“I will be praying for an end to abortion, for the babies that will die due to abortion on that day at BPAS Bournemouth, for forgiveness for BPAS staff and for the families who will lose a child to abortion that day. I will be praying for my son Jacob who died in an abortion 22 years ago and for the 30 babies I have assisted in their abortion 19 years ago. I will be praying for an end to abortion in England and across the world. Finally, I will pray that abortion industry workers, especially those working at BPAS Bournemouth, and families affected by abortion, would come to know the love, joy and forgiveness that is available to them through the love of Jesus Christ…”.

Following that email, on 24 November 2022, he travelled approximately 40 minutes to attend the BPAS clinic in Bournemouth and located himself about 50 yards from the site. On their arrival in the area, the Council’s enforcement officers observed Mr Smith-Connor with his arms crossed and his head slightly bowed. When asked he confirmed that he was “praying for my son” and had sent an email to the Council. The whole interaction was captured on the officers’ body worn video.

However, at trial he argued that he should not be convicted for four reasons.

  1. he argued that to proceed with the trial would be an abuse of process;
  2. because the Council’s officer could not have held the reasonable belief that he was in breach of the PSPO;
  3. that he was lawfully exercising his Article 9 and 10 rights, and;
  4. because he had a reasonable excuse for his activities.

Abuse of process

Mr Smith-Connor’s primary position at trial was that the prosecution should be stayed as an abuse of process. He argued that he had been given an assurance by a police officer on an earlier occasion that his conduct was not in breach of the PSPO and that he had relied on the advice he had received. On an earlier date having observed Mr Smith-Connor in the safe zone, the police officer had informed him that he had no experience of PSPOs and it would be for the Council to decide what they wanted to do now he had taken details.

The court considered a number of cases including R v Abu Hamza and R v Killick, which states that there must be “a clear unequivocal representation upon which the defendant relies to his detriment”.

District Judge Austin rejected Mr Smith-Connor’s assertion that there had been an abuse of process. She found that the police officer’s words had not amounted to an express or implied representation, undertaking or promise that he would not be prosecuted and that the conversation had to be looked at as a whole.

The prosecution

Mr Smith-Connor’s defence to the prosecution also failed. The charge before the court being that Mr Smith-Connor failed to leave the safe zone when he was asked to an authorised officer who had a reasonable belief that he was in breach of the PSPO by praying in the safe zone.

The District Judge went on to find that:

  1. the enforcement officer reasonably believed Mr Smith-Connor was in breach of the PSPO such that she was entitled to ask him to leave the safe zone;
  2. that Articles 9 and 10 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”) did not afford him a defence to the charge, having considered the cases of Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill and Zeigler, and that
  3. he did not have a reasonable excuse for his conduct.

The District Judge observed that PSPO had been subject to a legal challenge in Tossici-Bolt & Anor v Bournemouth, Christchurch and Poole Council and that the High Court had confirmed that the PSPO did not exceed the Council’s statutory powers or unjustifiably interfere with Articles 9, 10 or 11 of the ECHR.

Mr Smith-Connor was convicted and ordered to pay £9,000 towards the Council’s costs.

Kuljit Bhogal KC and Sarah Salmon are barristers at Cornerstone Barristers. They represented BCPC. Kuljit also successfully represented the Council in Tossici-Bolt  and Ealing LBC in Dulgheriu & Orthova v LB Ealing.

Information on the High Court challenges to this PSPO in the case of Tossici-Bolt can be found here.

Information on the decisions in Dulgheriu & Orthova v LB Ealing: High Court [2018] EWHC 1667 (Admin) and Court of Appeal [2019] EWCA Civ 1490.

Barristers from Cornerstone have acted in all of the legal challenges concerning PSPOs which have yet come before the courts, and have advised numerous local authorities on consultation, investigation and decision-making related to PSPOs. The second edition of Kuljit Bhogal KC’s book, Cornerstone on Anti-Social Behaviour, includes a chapter dedicated to PSPOs.

Since this judgment section 9 of the Public Order Act 2023 was brought into force. It is understood that the Home Office does not intend to publish any guidance however Guidance has been published by the College of Policing and the CPS.
A&M Bacon