Why do our Supreme Court judges hate our glorious war dead so much?

Well, they don't, of course. But as this is going to be a fairly dense post on the minutiae of the law relating to freedom of expression and protest, I needed some sort of hook to get you reading it. If you feel you've been cheated ... well, sue me.

A couple of weeks ago, the Supreme Court handed down its judgment in the case of Valarie Morse v The Police. (If interested, you can download the judgment as a pdf from here.) This judgment came a full 4 years after the occurrence of the facts that produced it - Ms Morse's burning of a New Zealand flag during a protest held at the official ANZAC day ceremony in Wellington. Reacting to her protest, the police arrested Ms Morse and charged her with "offensive behaviour"; a charge found proved in the District, High and (by a majority) Appeal courts.

A unanimous Supreme Court has now overturned her conviction. But here's what it didn't say. (Steven Price - one of Ms Morse's legal team - has a post debunking a number of other reported mistaken statements about the Court's ruling here.) The Supreme Court did not say that the law permits the burning of a New Zealand flag as a form of protest wherever or whenever a protestor wishes. Nor did it even say that Ms Morse's burning of the flag at an ANZAC Day ceremony is legally permissible.

Instead, the Court looked at the basis on which Ms Morse was convicted and asked "was this legally sound?" And it concluded that because the District Court had applied the wrong legal test to determining whether Ms Morse's behaviour was "offensive" in terms of the criminal prohibition, her conviction was in error. Furthermore, as this wrong legal test had driven the way original trial proceeded, the evidence that had been presented during that trial was insufficient to safely conclude that she would have been convicted even had the right legal test been applied. And seeing as this case is now over 4 years old, and the maximum penalty for a conviction would only be $1000, there is no point going back for a new do-over. As such, her conviction simply was quashed.

Consequently, following Morse, we do not know if it is legally permitted to burn a New Zealand flag as a form of protest at an ANZAC Day ceremony or other event. What we do know (sort of - more on this in a second) is the test that the Supreme Court thinks needs to be used to decide if the law - specifically, the prohibition on engaging in "offensive behaviour" in a public place - permits or does not permit a given protest action. But whether this test is met in any particular case depends upon the facts on the ground ... which means that unless and until we know those facts, we can't say if a given activity (such as burning the flag during an ANZAC Day ceremony) is permitted.

So, what is the test that the Supreme Court thinks needs to be used to decide if a given protest action is "offensive" in the way proscribed by law? Here a brief historical diversion is necessary.

Back in the day, "offensive" behaviour was deemed to be behaviour that so upset/outraged/disgusted the observers of that behaviour that the criminal law ought to step in and provide a response. If there appears to be an element of circularity around this, then that's because there was ... behaviour became offensive whenever the courts felt that the good citizens of this nation should not have to put up with it, because they were so offended by it. But the key point was that the behaviour need only cause internal feelings within the observer - there was no need for those feelings to manifest in any outward form.

The problem with this test is that it does not work very well where the behaviour at issue is intended to provoke some measure of upset/outrage/disgust as part of protest. After all, protest messages that don't (to some extent) create this reaction are pretty pointless ... a protest that says no more than "What do we want?" "Moderation!"; "When do we want it?" "Whenever is most convenient to you!" isn't much use at all. But if protest activity is subject to the constraint that "should an observer get sufficiently offended, the law will deem the activity to be criminal and so allow the police to stop it", then protestors constantly operate under an "audience veto" ... their permitted message (and form of expression) can be silenced simply because of its impact on the feelings of others.

So, back in 2007 the Supreme Court started trying to rebalance the law in this area in a case called Brooker v Police (pdf available here). That case involved a protestor playing his guitar and singing outside a policewoman's house - an action for which he was convicted of the offence of "disorderly behaviour". The Supreme Court, however, struck down his conviction by a 3-2 majority ... with the majority ruling that for a protest action to be "disorderly", it must actually create some sort of "disturbance of public order" above and beyond simply annoying those persons who observe it. Thus, internal feelings aren't enough - there must be some outward/external consequences arising from those feelings.

The problem with Brooker, however, was that it didn't really involve a "classic" form of protest. The fact Mr Brooker targeted a woman in her home brought in the additional element of privacy and a person's "right" to be secure in their domicile - which led 2 judges to conclude the conviction was rightly entered. Had these elements not been present - had the activity been conducted in a "usual" public place of protest - there would not have been an arrest, much less a conviction. (This was amply demonstrated when Mr Brooker was allowed to play his protest songs outside of the police station after his release.) So the value of the case for "normal" protest situations was diluted somewhat by its rather unusual factual background. Furthermore, the judges did not really turn their minds to the related offence of "offensive behaviour". The only mention of this offence came in a brief obiter by Justice Blanchard, who indicated he thought the old approach still sufficed.

Which is why, when Ms Morse had her trial, the Court simply concerned itself with finding out whether her activity had so offended onlookers that it deserved criminal sanction as creating more offense than people should have to put up with (there's that circularity again!) Upon hearing evidence that people were quite upset by her actions, it concluded the test had been met and so convicted her. But it is that test that the Supreme Court now says was mistaken. What does it think is necessary instead?

Well, here things get a bit tricky. Because, we've got 5 judges who all agree that the trial court approach was wrong ... but then give slightly different accounts for just why this is so, and just what that court should have done instead. This is, to put it mildly, a bit frustrating - especially when you get statements like Justice Blanchard's (at para 66) that: "To the extent that my approach differs [from the other judges'], it seems to me unlikely to produce a different result." To which one wants to cry, "then why can't you just take the same approach, rather than introduce a potentially complicating factor into the application of the Supreme Court's decision by lower courts and the police?!" After all, the point of having a Supreme Court is to send messages down the chain as to what is "the right way to apply the law" ... having 5 possibly the same, possibly different messages hampers that process.

But what all the judges do appear to agree on is that it is not sufficient that protest activity simply upsets/outrages/disgusts onlookers to be "offensive". Rather, the activity must then threaten to produce some form of external disturbance of public order sufficient to warrant the law stepping in to quell it. How much of a disturbance is needed then is left to a on-the-facts balancing of the relevant protest action (the right of protesters to put across their message as they see fit) and the actual consequences of that action (including the rights of others to use the public space for their own purposes). Which means it is pretty tricky to say with any certainty whether or not a given protest activity is or is not permitted by the law - if it provokes feelings of upset/outrage/disgust that manifest in a disturbance of public order (of a kind that a court thinks is justified given the nature of the protest and the feelings it will arouse), then it will still be "offensive behaviour" that can occasion an arrest and conviction.

All of which brings us back to Ms Morse and burning the flag at an ANZAC Day ceremony. On the facts, her action lasted no more than a few seconds before the police swooped in. As such, there was no time for the crowd to move from a state of internal upset/outrage/disgust to begin to act on those feelings. However, let's say the flag had burnt for a slightly longer period. And let's say as a result, the crowd had begun to manifest an extremely hostile response - shouting, gesturing, threatening reprisals. And let's say as a result, others in the crowd were prevented from observing the ceremony (even if they themselves were unaware of the protest action).

Class question - in this situation, would Ms Morse have still been guilty of offensive behaviour?

[Disgraceful example of self-promotion: I'm going to be on TVNZ 7's The Court Report this week discussing the Morse case and the recent Right-Wing Resistance leaflet drop. If you don't watch it, this puppy dies.]