Expressive rights are more secure in the UK today as a consequence of anti-abortion campaigners having forced Sussex Police to admit that they were wrong to have arrested them for displaying shocking abortion photos in the public square.
Andrew Stephenson and Kathryn Attwood, founding members of the campaign group called The Center For Bio-Ethical Reform–UK (CBR-UK), prevailed in civil claims which they filed at the Royal Courts of Justice against Sussex Police for unlawfully arresting them on multiple occasions in 2010 and 2011. A district judge later acquitted both Mr. Stephenson and Mrs. Attwood of all charges. Credit for that major victory goes to Andrea Williams of Christian Concern, who coordinated the excellent trial advocacy of Barrister/Solicitor Michael Phillips and Barrister Paul Diamond.
In 2010, each campaigner was arrested twice for the public display of signs depicting a living human embryo before an abortion and a dead human embryo after an abortion. On neither occasion did the Crown Prosecution Service (CPS) agree to charge them.
Regarding these 2010 arrests, CBR-UK succeeded in forcing the disclosure of communications between Sussex Police and the prosecutor in which the latter advised that “the images displayed and the words used [on the signs which CBR-UK employed in its Abort67 display project] were not insulting, threatening or abusive” in the sense required to convict the campaigners under Section 5 of the UK Public Order Act.
The prosecutor also declined to charge under the Protection Against Harassment Act, saying, “There is insufficient evidence of … [harassment] in this case.” He added that “the suspects have not behaved in a disorderly manner” and that “there do not appear to be any other offenses that apply here.”
Nonetheless, in 2011, Mr. Stephenson and Mrs. Attwood were again arrested for displaying the same images, in the same places. Despite there being no change in the facts or the law, this time the prosecutor decided he would charge both campaigners. What had changed, however, was mounting political pressure from supporters of the British Pregnancy Advisory Service (bpas), the UK’s largest abortion provider. Bpas is determined to hide the horror of abortion from potential clients, and the police and prosecutor yielded to that pressure.
Though the prosecutor had conceded in his initial consultation with the police that CBR-UK was not harassing the public, it was now clear that both the police and prosecutor were harassing CBR-UK. This was a shocking abuse of authority and proved incontestably that law enforcement had been politicized. One might reasonably expect corruption of this sort in North Korea, but not in West Sussex.
CBR-UK’s civil suit also succeeded in forcing the police to release an internal memo in which the prosecutor advised Sussex on his decision to now charge the campaigners. The contents of that document are disturbing at multiple levels. The prosecutor expressed concern that “the defense will have spotted [that] there are few uses of the words abusive or insulting” in our police reports so “we need the court to give our witnesses the chance to express themselves in the witness box rather than restrict them to the words they have chosen to write down [in their earlier witness statements].”
This was the prosecutor’s third instruction to the police regarding this matter, and although it might not constitute the subornation of perjury, or even witness tampering, it does raise the specter of witnesses being improperly coached. This prosecutor knew that the court could not properly consider whether passersby found CBR-UK’s signs subjectively “harassing, alarming or distressing,” until the Crown first proved that the content of those signs was objectively “threatening, abusive or insulting.” He also understood that the known facts did not support a criminal conviction.
The Crown’s eight witnesses (six of whom were veteran police officers, trained and experienced in writing accurate witness statements) had failed to use incriminating terms to describe the content of the signs. Was the prosecutor suggesting an intent to ask these witnesses leading questions on the witness stand? Was his goal to help them suddenly recall new “facts” which might turn lawful signs into criminal misconduct?
We may never know the prosecutor’s true intentions, because this second advice, which the prosecutor gave to the police shortly after the third arrest, could not be produced by either the CPS or the police, both of whom conveniently claimed not to have a written record of it. Both conceded, however, that advice had been sought and given. What is clear is that immediately after that advice was given, bail conditions were cancelled and the two were allowed to continue with their campaign (and therefore committing the alleged offenses) without further arrest.
In his third advisory, the prosecutor remarked that a chief police inspector had attempted to impose upon Mr. Stephenson “ground rules for protest” which would have permitted the display of his “living embryo before abortion” image but prohibited the display of his “dead embryo after abortion” image. Mr. Stephenson correctly reasoned that the police had no authority to restrict his legitimate expressive rights and he rightly defied this stricture.
The prosecutor concluded that “Mr. Stephenson is deliberately testing the boundaries,” but, in actuality, he was doing nothing of the sort. He knew precisely where the real boundaries lay and he resolved to enlist the aid of the courts in teaching the police their exact location.
Mr. Stephenson and Mrs. Attwood were nearly certain to prevail before any fair tribunal because their abortion photo signs were specifically designed to defeat prosecution under the Public Order Act – or any other criminal statute. The signs intentionally contained only medical images with brief, content-neutral, identifying captions. They were non-judgmental. They were non-polemical. They offered no negative commentary concerning abortion, or the people who choose abortion, or the people who perform abortion.
Neither Mr. Stephenson nor Mrs. Attwood needed to protest abortion. When they held up an abortion photo, abortion protested itself.
On March 14, 2016, Master Leslie, the judge in the civil case, further humiliated the police and prosecutor by ordering the police to pay the anti-abortion activists £40,000 in fines and issue a public apology. The way is now open for the campaigners’ barrister, Andre Clovis, of Tuckers Solicitors, to seek fees which may approach approximately a six-figure level. Also involved in the civil victory were Barrister Iain Daniels and Trainee Solicitor Emily Girvan. As part of the settlement, the chief constable provided the campaigners with a written apology and deleted the campaigners’ biometric data, unlawfully taken following each arrest.
The judge in the criminal case ruled that public outrage does not trump the expressive rights of anti-abortion campaigners. The master in the civil case ruled that police who violate those expressive rights will pay a heavy reputational price – with innocent taxpayers unfortunately bearing an even heavier financial penalty.
Andrew Stephenson also noted that “This is another magnificent triumph for free speech. We are enormously grateful for the expertise of our legal team, including Gregg Cunningham of CBR-US, who clearly had a better understanding of English law than many of the officers who attempted to stop us.” It should also be borne in mind that “When Geoff Weddell, barrister for the chief constable, angrily refused to shake Mr. Cunningham’s hand near the conclusion of the civil hearing, we gained a clearer understanding of just how stinging was the court’s rebuke to the police. The damages will certainly help us in further exposing the reality of abortion.”
Andrew later added that “Every time Gregg has visited the UK there have been influential people dramatically impacted by his presentation on the history of social reform and CBR’s projects.” Andrew also generously noted that “If it weren’t for Gregg’s strategic thinking and knowledge of English law, we would not be able to mount such an ambitious campaign of abortion sign displays. These successes are helping us recruit volunteers and save babies. Gregg has equipped our UK team to defend our position, not just on abortion but on free speech.”
Perhaps most importantly, Andrew says that “Without the help of CBR-US, the attempts by the police to intimidate us would have remained unchallenged and pro-lifers would have been silenced across the UK.” In furtherance of that goal, we are printing giant enlargements of these court orders and police apologies and will display them on signs everywhere we display our abortion photo signs in the UK. The blowups of these court documents should deter police from harassing our campaigners while we expose the horror of abortion and thereby save babies.