Legitimate Protest or Campaign of Harassment - Protestors, Harassment and Reasonableness: The Decision in DPP v Moseley.
Department of Law
University of Wales at Aberystwyth
Copyright © 1999 Emily Finch.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
Summary
This casenote considers the High Court judgment in DPP v Moseley, The Times, 23rd June 1999, which examines the application of the Protection From Harassment Act 1997 to protestors. The court considers the relevance of the existence of an injunction prohibiting certain activities to the availability of the defence of reasonableness to a charge of intentional harassment. The court distinguishes between protestors who are bound by the terms of the injunction who will not be able to assert that their conduct was reasonable and those who are not bound who will be able to put forward a defence of reasonableness. The success of the defence of reasonableness will be determined by a balancing exercise between their right to engage in peaceful protest and the object of the protest's right not to be harassed. The casenote goes on to consider whether it is right to treat such an ongoing campaign of harassment which is aimed at forcing the object of the protest to desist from doing that which he has a lawful right to do as a legitimate protest and to extend to it the degree of protection accorded to peaceful protest.
Contents
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Introduction
The Facts
The Magistrate's Decision
The High Court Decision -
The Effect of the Injunction
Who Was Bound By The Injunction - Analysis
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Impact on Protestors
Knowledge of the Terms of the Injunction Acting in Concert
The Balancing Exercise
The Human Rights Act 1998 - Conclusion - Protests and Harassment
Introduction
The impetus for the enactment of the Protection From Harassment Act 1997 may have been the perceived need to legislate against stalking but the generality of the terms of the Act ensure that its scope is far wider than this and encompasses all forms of harassing conduct (see Addison & Lawson-Cruttenden, 1998). During the passage of the Act, a specific statement was sought from the then Home Secretary, Michael Howard, that the Act would not be used against those engaged in peaceful protest (Bennett 1996, col. 811). Such a statement was not forthcoming and the potential of the Act as a weapon against protestors led to some of its earliest cases involving the granting of injunctions against animal rights protestors (The Guardian, 14th July 1997) causing concern that the Act may be used to stifle legitimate protest (see Mead 1998)
One of the notable features of the injunctions granted against protestors under the Act is the scope of their provisions, For example, one of the earliest injunctions was granted to Christopher Brown, owner of the last establishment in the UK to breed cats for laboratory experiments, and purported to apply to anyone holding themselves out to be an animal rights protestor although this was later amended to apply to anyone acting in concert with any of the named defendants or with any of the nineteen animal rights groups named in Schedule 3 of the injunction (Brown v O'Neill and ors (unreported) 15th August 1997).
The decision of the High Court in DPP v Moseley, DPP v Selvanayagam, DPP v Woodling, The Times, 23rd June 1999, provides some welcome guidance on the position of protestors prosecuted under the Protection From Harassment Act with especial reference to the difference between those directly bound by an existing injunction and those who are not so bound.
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The Facts
This case arose from the prosecution of three animal rights protestors for harassment contrary to the Protection From Harassment Act 1997, s 2(1) following a series of protests spanning several months at Corneyhaugh mink farm. The premises were also home to the farmer, Peter Harrison, his elderly parents, his wife and his young children. The protests were peaceful and were predominantly conducted outside the farm boundaries with occasional intrusions onto farm property.
After several months of protests, Mr Harrison obtained a High Court injunction against Ms Selvanayagam and two others (who were not parties to this action). The injunction included a term prohibiting those named in the injunction and anyone acting in concert with them or who was aware of the terms of the injunction from entering farm property, neighbouring land and the public highway adjoining the farm. The injunction was served directly on those named and by substituted service which involved the display of the injunction and a map showing the prohibited areas at prominent places around the boundaries of the farm.
Despite the existence of the injunction, the protest continued unabated and included numerous incidents within the prohibited areas by the three defendants. Of particular concern was an incident involving the defendants which occurred on Christmas Day, which particularly upset the Harrison children (aged 8 and 10), and a noisy all-night vigil which included the brandishing of flaming torches which caused the Harrison family to fear for their safety.
These incidents led to the arrest of the defendants and their prosecution under the Protection From Harassment Act 1997, s 2(1), for pursuing a course of conduct which amounted to harassment of the Harrison family, and which they knew or ought to have known would amount to such harassment. The three defendants admitted that they had pursued such a course of conduct but relied upon the defence contained in s 1(3)(c) - that, in all the circumstances, their conduct was reasonable.
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The Magistrate's Decision
In determining whether or not conduct was reasonable, the stipendiary magistrate made reference to the need to balance the interests of those engaging in protest against the rights of those who are the object of the protest. Applying this, he balanced the effect of the defendants' activities on Mr Harrison and his family against the nature and purpose of the protest. He found that the protest had been peaceful in nature, indeed, that these defendants had urged others not to resort to violence in the course of the protest. He felt that the purpose of the protest, which was to express opposition to the practice of mink farming, was one which attracted a great deal of public support and was somehow legitimised by the imminent likelihood that the government would outlaw the practice of mink farming altogether.
The prosecution asserted that the defendants should not be able to rely on the defence of reasonableness because it cannot be reasonable to do that which is prohibited by a court order. The defence argued that, although the injunction was a relevant consideration, it was only one of the factors which the magistrate could take into account when determining whether or not the conduct was reasonable. The magistrate adopted this latter approach and, after carrying out the balancing exercise, found that the conduct of the defendants was, in the circumstances, reasonable and dismissed the charges against them.
The magistrate treated all three defendants in the same way, making no distinction between Ms Selvanayagam, who was specifically named in the injunction, and the other two defendants who, he held, were aware of the existence and general nature of the injunction, but not of its specific provisions. He highlighted that the important issues which led to his decision were the peaceful nature of the protest and the abhorrence with which the public regarded the practice of mink farming.
The prosecution appealed by way of case stated to the High Court.
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The High Court Decision: The Effect of the Injunction
The High Court held that the starting point in determining this case was not an evaluation of the reasonableness of the defendants' conduct but the existence of the injunction limiting the geographical parameters of the protest. Collins, J. held that the magistrate had not been entitled to go behind the injunction and that his decision to carry out a balancing exercise meant that he had effectively ignored the injunction. The fact that the injunction had been ex parte, hence had not involved a balancing of the relative merits of the opposing parties' rights, was irrelevant. An injunction, once granted, was binding on the parties unless and until it was set aside. There was no scope for an individual to ignore an injunction because they believed that their behaviour was reasonable. Equally, it was incumbent upon the magistrate, once faced with an injunction which has been breached, to accept that this means that the defendant is unable to discharge the burden of proving that his conduct was reasonable.
Therefore, a course of conduct which is in breach of the terms of an injunction would deprive the defendant of the defence of reasonableness.
Who Was Bound By The Injunction
Having determined that the question of reasonableness could not arise if the defendants were in breach of the injunction granted to Mr Harrison, the High Court went on to consider whether the parties were so bound.
Ms Selvanayagam was specifically named in the injunction and was clearly bound by its terms. She admitted that she had participated in protests within the prohibited areas after the grant of the injunction, thus it was not possible for her to assert reasonableness as a defence. As she had admitted she had pursued a course of conduct amounting to harassment and had no defence, her case was remitted to the magistrate with instructions to convict.
The position of Ms Moseley and Mr Woodling was somewhat different as they were not named in the injunction. In order to engender liability based on the injunction, it had to be shown that these defendants knew that they were prohibited from certain areas of land and that they then went onto these areas of land with the knowledge that their conduct was prohibited by the injunction. The prosecution submitted that the method of substituted service meant that the defendants must have been aware of the terms of the injunction but the magistrate had found, as a matter of fact, that these two defendants were aware only of the existence and general remit of the injunction and lacked knowledge of its full contents.
Therefore, liability based on the injunction could only be established if the defendants could be deemed to be acting in concert with Ms Selvanayagam. The magistrate had not considered this point but the High Court held that the fact that Ms Moseley and Mr Woodling were present at the protests with Ms Selvanayagam was not sufficient to allow an inference to be made that they were acting in concert.
Thus these two defendants were outside the scope of the injunction and were not prevented from asserting a defence of reasonableness. As the magistrate had found as a matter of fact that these defendants were not aware of the full terms of the injunction, they were entitled to put forward a defence that their conduct was, in the circumstances, reasonable. This had also been accepted by the magistrate and so they were entitled to be acquitted.
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Analysis
This case has established that protestors who breach the terms of an injunction will not be able to defend a charge of harassment by asserting that their conduct was reasonable. Those who are not specifically bound by an injunction and who are not deemed to have knowledge of the relevant provisions by means of substituted service will be able to put forward a defence of reasonableness which will then involve a balancing of the opposing interests of the parties involved. The defence attempted to ameliorate the absolute nature of this ruling by suggesting that there may be circumstances when breach was justified, such as to effect a rescue in an emergency situation. The High Court disagreed with this, pointing out that such a rescue would necessitate only one incident in breach of the injunction and so would not constitute a course of conduct. This does not deprive the defendant of any other defence which he or she may wish to assert, it merely specifies that a course of conduct in breach of an injunction cannot be reasonable. It should be emphasised that it is not breach of the injunction that renders the defendant liable for harassment, but that a course of conduct that amounts to harassment and which is in breach of an injunction will preclude the defendant from asserting a defence of reasonableness.
Impact on Protestors
This decision has implications for protestors especially in light of the increasing tendency of the targets of protests to seek injunctions under the Protection From Harassment Act against protestors (The Observer, 17th August 1997). The existence of an injunction placing restraints upon the protestors will make it easier for the courts to convict them of harassment if they continue to protest in a way that breaches the injunction.
This case focused on the term imposing geographical constraints on the protestors but the injunction also contained terms prohibiting those bound from communicating with Mr Harrison, his family, his employees and his customers and from harassing them in any way. When one considers the low level of conduct which has been held to constitute harassment under the Protection From Harassment Act 1997, it is suggested that, in effect, those named in the injunction are, for all practical purposes, prohibited from protesting. This may well encourage people who are subjected to protest to seek to obtain injunctions against as many of those involved in the protest as possible and in the widest terms possible (see Addison & Lawson-Cruttenden 1998, p 133). An example of the level of conduct which will suffice to establish liability can be seen in DPP v Williams (unreported) July 27th 1998 where the defendant's conviction for harassment was upheld by the High Court despite there being only two incidents which were witnessed by two different people. On the first occasion, the defendant put his hand through a window which frightened one of the occupants of the house. The second incident occurred two days later when the defendant looked through another window in the house. With an injunction in force and this low level of conduct being the standard by which liability under the Protection From Harassment Act, s 2(1), is established, it would be a relatively easy matter to secure convictions against those involved in all but the most restrained and sedate of protests.
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Knowledge of the Terms of the Injunction
Other than those directly named, this injunction purported to bind all persons with knowledge of its terms or who were acting in concert with a named party. The interpretation given to these concepts was essential as those who are deemed to have the requisite knowledge are also deprived of the opportunity to assert a defence of reasonableness. The High Court considered the knowledge required by a person not directed named to bring them within the boundaries of the injunction and determined that the injunction would only bind those who had knowledge of its exact provisions and who deliberately pursued a course of conduct knowing that it was in breach of the injunction. Both Collins J and Roch LJ expressed surprise that the magistrate had found that Ms Moseley and Mr Woodling had only a general knowledge of the existence of the injunction and its terms. Nevertheless, this was a finding of fact that the magistrate was entitled to make and it ensured that these two defendants lacked sufficiently specific knowledge which would have made the injunction binding on them.
In future cases, it will be a matter for the magistrates to determine whether, in the factual circumstances of the case, that the form of substituted service ordered is sufficient to establish an appropriate degree of knowledge. On the basis of this, all who are deemed to have this knowledge will be bound by the injunction in the same way as those directly named and will similarly be denied a defence of reasonableness.
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Acting in Concert
The other basis upon which a party not named in the original injunction would be deemed to be bound by its terms arises when they are held to be acting in concert with a named party. In this case, the High Court felt that there were insufficient grounds upon which to infer that these two defendants were acting in concert with Ms Selvanayagam. Collins J stated that the fact that the three of them were there together was not enough to establish that they were acting in concert.
As this phrase is frequently used in injunctions against protestors to extend the scope of the injunction beyond those who are direct parties to as many protestors as possible, further guidance on what would constitute "acting in concert" would have been valuable here. In Huntingdon Life Sciences v Curtin, The Times, 11th December 1997, Mr Justice Eady, when considering whether an organisation could be liable for the actions of its members in the course of a protest, held that the crucial question was not whether they had ends in common but whether they had means in common. In this case, Ms Moseley and Mr Woodling were with Ms Selvanayagam at the same place and time and they using the same means to pursue a common purpose - they shared a common means directed at a common end. It is difficult to envisage what else could be required to establish that they were acting in concert with her. However, this point was not expanded upon and so the position remains unclear.
The Balancing Exercise
As the injunction was not binding on Ms Moseley and Mr Woodling, the High Court held that the correct course of action had been for the magistrate to carry out a balancing exercise to determine whether or not their conduct had been reasonable. Again, Collins J expressed surprise at the magistrate's finding that, injunction aside, their conduct had been reasonable. He was particularly perturbed at the weight given to public and government opinion of mink farming which he felt should not have been a consideration in the process of determining which of the parties' rights was to prevail. Roch LJ expressed a stronger opinion as he asserted that, in his view, a course of conduct which involved deliberate trespass, as opposed to a peaceful demonstration in the road outside the land concerned, could not be reasonable. If this point is argued in future cases, this could result in all protestors, who trespass in the course of the protesting activities, from being allowed to assert a defence of reasonableness.
Had the appeal been worded differently and invited the court to consider the reasonableness of the defendants' conduct rather than being limited to a consideration of the impact of the injunction upon the availability of the defence of reasonableness, it is highly likely that the High Court would have reached a different conclusion to that of the magistrate. Both judges were clearly surprised at the magistrate's finding that the defendants' conduct had been reasonable. The protest had continued unabated for six months at premises which included the home of the farmer and his young family. There had been incidents on Christmas Day and during the night and incidents involving trespass both on Mr Harrison's land and that of a neighbouring landowner. Collins J mentioned several times that the injunction had not prohibited the protest but had merely moved it away from the house in order to minimise harassment to the family. The High Court was clearly of the opinion that the right to peaceful protest should not be protected to the extent that it permits a family to be subjected to persistent harassment in their own home.
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The Human Rights Act 1998
As a result of the High Court decision, Ms Selvanayagam's case was remitted to the magistrate's court where she was convicted and made subject to a restraining order under the Protection From Harassment Act 1997, s 5(1). As she has indicated her intention to continue her activities against the mink farm, it is inevitable the prosecution under the Protection From Harassment Act 1997, s5(5) will follow. In R v Liddle [1999] 3 All ER 816, the Court of Appeal reduced the defendant's sentence for two breaches of a restraining order from 21 months' imprisonment to 15 months. The Court of Appeal laid down guidelines that a court should consider when determining sentence for breach of a restraining order which included whether or not the defendant had shown remorse, the impact of the harassment on the victim and whether the defendant had pleaded guilty. Curtis J indicated that a first offence would normally merit a "short, sharp sentence". It remains to be seen whether it will considered appropriate to impose a sentence of imprisonment for breach of a restraining order imposed as a result of participation in a peaceful protest especially in light of the incorporation into domestic law of the European Convention of Human Rights by the Human Rights Act 1998 (see Mead 1998). It is possible that this case would not involve a contravention of Article 10 (freedom of expression) or Article 11 (freedom of association) as it does not seek to restrict the right of peaceful protest provided that the actions of the defendant in participating in the protest are reasonable. Equally, the injunction did not seek to prevent the protest, merely to move it away from the Harrison's family home. In G v Germany (1989) 60 DR 256, it was held that Article 11 only protects peaceful protest and does not extend to demonstrations where the participants have violent intentions. Although there was no violence used by the defendants against Mr Harrison, the question which will need to be addressed is whether the European Convention of Human Rights will protect a protest (peaceful or otherwise) which continues over a period of several months and targets the family home of a private individual and his family.
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Conclusion - Protests and Harassment
One of the implications of the use of the Protection From Harassment Act 1997 against protestors in this way is that it is an acknowledgement that the behaviour which protestors engage in can amount to harassment. One of the wider issues that this case raises for consideration is the dividing line between legitimate protest or demonstration and unlawful harassment. Were the protestors' activities a protest against mink farming and the conditions in which the mink were kept, or was this a concerted effort to harass Mr Harrison and make his everyday life so difficult and unpleasant that he would be deterred from continuing with his business?
Similar events at Hillgrove Farm in Oxfordshire recently culminated in the closure of the farm (The Times, 14th August 1999). Animal rights protestors openly celebrated the success of a deliberate campaign to put Mr Brown out of business in what had been termed "a battle of attrition" by one of the organisers of the protest. Activities had been directed at Hillgrove Farm, which was also the home of the Brown family, for a number of years.
Whilst the right to peaceful protest is an essential one which must be preserved and protected, these cases illustrate that a distinction needs to be made between a legitimate protest and a campaign of harassment against those carrying out lawful activities, regardless of the distaste which these activities may engender. Such ongoing and protracted campaigns of opposition such as those directed against Mr Harrison and Mr Brown can surely not be regarded as a protest against their activities or a demonstration aimed at drawing attention to the plight of the animals concerned. On the contrary, there was no-one in the locality of these farms who was unaware of events taking place. These campaigns were deliberate attempts to force people to desist from carrying out a business which they had a legal right to pursue and should not be perceived as and protected in the same way as legitimate protests.
Bibliography
Andrew Bennett MP, HC Deb vol 287, col 811, 17th December 1996.
Addison, N. & Lawson-Cruttenden, T., (1998) Harassment Law & Practice (London: Blackstone Press Ltd.
Mead, D., (1998) `The Human Rights Act - A Panacea For Peaceful Public Protest' Journal of Civil Liberties 206.