England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18 October 2012

1. MR JUSTICE OPENSHAW: This is an appeal by way of case stated arising out of a decision of District Judge Rutherford sitting at Hull Magistrates' Court on 20 January of this year by which he made an Anti-Social Behaviour Order upon the appellant, Christopher Perry, on the application of the Chief Constable of Humberside, the respondent to these proceedings. The application was made under section 1(1) of the Crime and Disorder Act 1998 which reads as follows:

"An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely --

(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and

(b) that such an order is necessary to protect relevant persons from further anti-social acts by him."

2. In accordance with the Criminal Procedure Rules rule 64.6, a case stated by the Magistrates' Court "shall state the facts found by the court and the question or questions of law or jurisdiction on which the opinion of the court is sought." The District Judge first set out a summary of the facts in these short paragraphs:

"1. Christopher Perry began a community newspaper online called Woldseyeview in 2008. He had previously been employed as a journalist."

"2. He made a number of postings in 2009 alleging a police cover up of a traffic violation said to have been committed by the local Mayor."

"3. He made phone calls asking for comment on the uncorroborated allegations and attended outside the home of one individual."

"4. He took photographs of individuals, their homes and cars and posted these on his website together with comments questioning the means of the individuals."

"5. In 2011 he made further allegations against other individuals regarding working practices and possible corruption."

"6. In addition to internet postings which included both unsubstantiated statements and photographs, Mr Perry became involved in a number of other actions including a face to face threat and making telephone calls and direct contact. All Mr Perry's various actions had the effect of causing others to suffer harassment, alarm and distress and are itemised in the section below."

3. The questions posed for the opinion of this Court are as follows:

1. In considering the facts of the case was the District Judge correct to find that the behaviour complained of was of an anti-social nature?

2. Was DJ Rutherford right in law in considering that an Anti-Social Behaviour Order was necessary given the facts of the case?

3. Was the imposition of the Anti-Social Behaviour Order a breach of Chris Perry's rights under Article 10 of the European Convention of Human Rights including the right to hold opinions and to receive and impart information and ideas without interference by public authorities?

4. Can the conditions and restrictions involved in the imposition of an Anti-Social Behaviour Order in this case be justified under Article 10 of the European Convention on Human Rights?

4. The District Judge said that the questions or at least some of them related directly to the evidence upon which he had based his findings of fact. Therefore, he said, he had no option but to précis the evidence, which he did at some length. I think that I must set this out as he did.

"Mr Perry's contention that the facts are largely undisputed disregarded his denial of certain facts occurring, for example his denial of the face to face threat he made to the Reverend Amos. I found as a matter of fact that he made this threat."

"Mr Perry posted various accusations against Richard Wood, a former Police Inspector and now clerk to the Pocklington Town Council. He alleged serious misconduct, an unprovoked attack on a youth, a suggestion that Mr Wood has been required to resign from the Police Force and that this had not been disclosed by Mr Wood when he was interviewed for the clerks post; an allegation of malpractice involving the failure of Mr Wood to prosecute a Councillor Steve Poessl for a traffic offence, and his accusations became frequent and caused great distress to Mr Wood and his wife. Mr Perry contacted Mr Wood's work colleagues who then contacted Mr Wood. Mr Perry has made admissions that the information he began with was a manuscript which had come into his possession. Latterly, Mr Perry has photographed Mr Wood's house and car, posted them on a website, saying inquiries should be made as to Mr Wood's means. This shows an escalation of the manner in which he began and continued to act for no other reason than to cause harassment, alarm or distress to Mr Wood and his wife. Mr Perry stated on his website that he had re-named Mr Wood 'Town Clerk Tiger Wood' because of his inability to face the truth about his actions.

Mr Wood feels the allegations are damaging to his reputation and should not have to be tolerated. I agree with Mr Wood."

"Mr Perry said it is not illegal for a journalist to take photographs if there is a reason. He was building up a picture of a lifestyle as to how certain people in public life, and Police Officers, behave. He added, 'There are all sorts of stitch ups going on. I have no corroboration yet.'"

"Mr Stephen Poessl has been the Mayor of Driffield since 2009. Mr Perry had telephoned Mrs Poessl at home and requested Mr Poessl ring him, which he did. Mr Perry told him, 'I have something very important about you' and explained Mr Poessl was involved in an incident of going through a red light at a crossing patrol and that it was actually reported to Inspector Wood. He went on to say the incident occurred about eight years ago and made the suggestion that the matter had been covered up for political reasons. Mr Poessl said he did not know what he was talking about. Mr Perry posted an article about this matter on his website. Mr Poessl felt 'harassed and sickened' as a result as he had always prided himself on being straight and honest with people and the allegation was unfounded. He said considerable distress was also caused to his wife."

"Mr Perry then posted a further article about Mr Poessl on his website suggesting there was some impropriety involved with his election as a Councillor on Driffield Town Council. Mr Poessl said he had lost sleep over this and words could not describe how he felt about this unfounded allegation being made. He said he had been caused considerable harassment, alarm and distress given the pride he places in his own personal integrity."

"In April 2011 Mr Poessl was greatly distressed by further postings by Mr Perry. The first heading read, 'Don't jostle Herr Poessl. Councillor Alvey leads revolt against the Obergruppenfuhrer.' The second heading read, 'Stevie Blunder comes under attack as he tries to wear the jackboots as Mayor of Driffield.'"

"Mr Poessl, whose father was a German prisoner of war, found both of these headings racially offensive as they implied Nazi connections. To find these on Mr Perry's site caused him a great deal of distress and brought back to him the unpleasant experiences he had as a child when he was bullied because of his Anglo-German origins."

"Mr Perry stated in evidence that he understood Mr Poessl was from Eastern Europe. He said he did not know Obergruppenfuhrer was a Nazi word. He said it was just a phrase that came to mind. It was meant to sound as though they were autocratic and militaristic. He said there was no Nazi connotation intended by his use of the word 'jackboots'. He added, 'All sorts of people jackboot around. Whether it is offensive depends on how they were behaving. The German word just sounded right. It was not a racist comment I made.'"

"I found that as a journalist it beggars belief that he would not know the origin of a man he was investigating. In fact, Mr Perry admitted he researched people he intended to contact. Mr Perry is an educated man who says he has knowledge of the German language. I did not accept that he did not understand the seriousness of the words he was using."

"In his statement, the Reverend Robert Michael Amos says that on the 17th April 2011 he was in a shop in Driffield buying his lunch. On emerging from the shop he was aware of Mr Perry photographing him. Later in the same day, he was in the kitchen of his house when he became aware of a figure moving up the drive, passing the kitchen window from the direction of the rear garden towards the main road, then standing at the end of the drive, just inside the property, again photographing him. He recognised him as Mr Perry, and said, 'Excuse me, can I help you?' Mr Perry replied, 'Amos, I've got you covered and I'm going to bring you down with my journalism.' Mr Amos shut the door, unnerved and shaken by what had occurred. He later looked at Mr Perry's website and found several pictures of himself. The inference of comments on the article, and on entries subsequently posted is that the Methodist Church is preying on the elderly and that somehow Mr Amos will be a beneficiary financially if the planned demolition of the Chapel takes place. Mr Amos said he did not know why Mr Perry was behaving in this way towards him. He said his latest behaviour, which involved photographing him on the street, trespassing on church property and photographing his home followed by making inaccurate comments about him on his website was very distressing, and had caused him harassment, alarm and distress. Whilst having initially dismissed Mr Perry's website entries as being unworthy of serious consideration or reply, he now has a concern in respect of his personal and professional reputation in the role that he holds and feels that the derogatory remarks made, which he states are totally without foundation, could be detrimental to him."

"Mr Perry said he took the photographs because Mr Amos looked extremely evasive and Mr Perry and his mother had been badly let down by him. He said, 'People in the road were feeling Mr Amos was letting the road down.' He said he took a photograph of Mr Amos outside a pie shop because Mr Amos' nickname is Tubby so he thought a picture outside a pie shop was particularly apt. Mr Perry denied saying he would bring Mr Amos down by journalism."

"I found that Mr Perry felt let down by the Reverend Amos, who was subjected to being photographed and threatened. It was a repeated personal attack on a member of the public and I find he said, 'I'm going to bring you down with my journalism.'"

"In his statement, William Charles Buckle says he is a retired Police Officer living in Wetwang. Mr Perry contacted him to say he was annoyed about an article Mr Buckle had published in the village newsletter. This related to a male, who was not named, being seen around the Village Hall. Mr Perry has made a number of allegations about Mr Buckle on his website. Firstly, that Mr Buckle has built an extension to his house paid for from funds intended for a village bus stop. He said Mr Buckle sold the village bus and pocketed the proceeds with Pat Owen. He accused Mr Buckle of misappropriating funds from the Village Hall and village charity events. He claimed Mr Buckle abused his position on the Parish Council and has been involved in a village protection racket. Mr Perry had made allegations about Mr Buckle's misconduct to the East Riding Council. A Standards Committee investigation cleared Mr Buckle of any wrongdoing. In October 2010 Mr Perry published on his website an article inviting people to complain about Mr Buckle's dishonesty to the Lottery Fund. Mr Buckle says all he wants to do is support and help the community of Wetwang without fear he is being looked upon as some sort of dishonest and disreputable character."

"Mr Perry admitted he published articles on his website to see what response he received from Mr Buckle or others but all they did 'was to sign an ASBO statement.'"

"In her statement, Deborah Louise Akcicek says that she and her husband Polat own a number of fish and chip shops which they operate under the Company name of Harpers Ltd. She said she became aware that Mr Perry had written 'nasty things about her husband and their business' on his website. This made Mrs Akcicek feel depressed as they were totally untrue. Mrs Akcicek read an article on Mr Perry's website which caused her extreme distress. It read, 'Meanwhile, as Polat struggles to repay loans there are serious allegations about the financing of a fish and chip shop at Market Weighton and another in the Leeds area.' Also, 'Polat acquired Wetwang as a partner of Mr Thompson who later regretted the move and sold Wetwang whilst retaining the jewel in his crown: his restaurant on the A64 near Huntingdon, York. Polat was advised not to buy the former Staxton Little Chef but went ahead. Now the partner he has there had had to work in a Harpers on the Hull Road in York and lost a lot of money.' And, 'The local fish and chip empire of Polat Akcicek falls to pieces as he is forced to sell Wetwang Harpers fish and chips to a Harrogate already now running his A64 Staxton shop which has cost Polat and his partner a great deal of loss.' Mrs Akcicek suffers from MS and anxiety for which she is receiving medical treatment. She said seeing the comments made her feel extremely anxious and she was physically shaking."

"The following day a friend made her aware of a Facebook site 'Christopher Perry' where she viewed further distressing comments regarding her husband and their business. It read, 'So deep is the hatred between rival fish and chip shops Thompsons, formerly of Wetwang, and Harpers aka Polat Akcicek, still of Wetwang but not much longer, that when Thompsons recently had a fire early one Sunday morning the staff at Harpers of Hull Road, York, cheered in my presence at the news.' She says she can think of no reason why Christopher Perry is showing so much hatred towards her and her family. She says the comments have caused her great distress."

"Mrs Akcicek stated she has never met Mr Perry but staff at the shop told her he would come in and give Police contact details to them to encourage them to make complaints about the Akciceks. Neither she nor her staff knew what he was trying to gain by this as they had no idea 'what he was on about.' In the end the staff simply told him to go away and mind his own business as they believed he was a 'harmless idiot.'"

"Mr Perry said he had made accusations about Harpers, owned by Mr and Mrs Akcicek, and he had made comments about alleged financial impropriety. He said, 'People are trying to use ASBOs to shut me up for the wrong reasons.'"

On this evidence, he came to these conclusions:

"I found that the behaviour complained of was anti-social as the facts showed an escalation of behaviour against individuals by

I) electronic means moving to

II) direct contact with third parties in relation to individuals, those being Mr Richard Wood, Mrs Diane Wood, Mrs Myra Poessl;

III)photographing, and in cases following and photographing,

A) Mr Wood's house and vehicle

B) pursuit of the Reverend Robert Amos around town, photographing him and threatening him, this as a consequence of the Applicant's dislike of him. This behaviour was denied by Mr Perry but I found as a matter of fact that it had occurred."

"My judgment was based not just on electronic, but on face to face contact and threats, together with racist comments, and I was right in law to find this behaviour was anti-social in nature. It was clear the individuals had been subject to harassment, alarm and distress. Mr Perry accepted he could not corroborate the articles - he was hoping someone would come forward. He accepted he had received legal advice that the manuscript which formed the basis of some of his accusations was libelous. He accepted he had received a harassment warning in respect of at least three of the witnesses. He was therefore aware after the 13th October 2009 that he was causing harassment."

"I found that an Anti-Social Behaviour Order was necessary upon the facts of the case, those being the historical facts of Mr Wood through to the most recent facts of Mr and Mrs Akcicek."

"Mr Perry's postings, communications and meetings went far further than holding opinions and I found it a nonsense for him to hide such appalling actions behind Article 10 of the European Convention on Human Rights. Article 10 is a qualified right which takes account the rights of others."

"The conditions and restrictions of the Anti-Social Behaviour Order are necessary as a result of my findings and can be justified under Article 10 of the European Convention on Human Rights. Mr Perry has made it clear that this is not the end - he has further allegations to make. Only an Anti-Social Behaviour Order will prevent any further incidents. It is completely right, proportional and necessary. Mr Perry's pattern of action, which includes personal contact etc, shows warnings are not sufficient. I decided that it was necessary to make an Anti-Social Behaviour Order for then years."

"It was my finding that only the making of such an Order and for such a period would protect those who Mr Perry intended to continue to attack and that Mr Perry did not have a defence to the application by resorting to Article 10 of the European Convention on Human Rights."

5. Before considering whether the appellant's behaviour could have justified making an Anti-Social Behaviour Order in this case, it is important to bear in mind what Lord Steyn said in R (on the application of McCann) v Manchester Crown Court [2002] UKHL 39 at paragraph 25:

"Section 1 is not meant to be used in cases of minor unacceptable behaviour but in cases which satisfy the threshold of persistent and serious anti-social behaviour."

6. Ms Baillie, counsel for the appellant, has helpfully drawn our attention to the 'Guide to Anti-social Behaviour Orders' published by the Home Office. The guide identifies the sort of behaviour which can be tackled by ASBOs:

"Harassment of residents or passersby; verbal abuse; criminal damage; vandalism; noise nuisance; writing graffiti; engaging in threatening behaviour in large groups; racial abuse; smoking or drinking alcohol while under age; substance misuse; joyriding; begging; prostitution; curb crawling; throwing missiles; assault and vehicle vandalism."

This, of course, is not an exhaustive list. The list was drawn up before the misuse of blogging, texts and the internet had become a social problem, but it does emphasise that orders are to be directed only at persistent and seriously anti-social behaviour.

7. I accept that the appellant's conduct must be considered overall, but I think that separate issues arise out of these blogs. In the blogs, as I have made clear from the District Judge's review of the evidence, the appellant claimed that various figures in the village had been guilty of corruption and perverting the course of justice. The appellant did not lead any evidence to support those charges, but the blogs did not incite or threaten violence or disorder. They could not reasonably have given rise to the suspicion that the appellant would resort to threats of violence or disorder. The district judge did not so find. The mere fact that a blog may contain material that is untrue or even defamatory or, as the District Judge put it, damaging to the reputation of the people of whom he spoke may justify the civil courts in making an injunction, a breach of which may be a contempt of court punishable with imprisonment, but in deciding whether or not the statutory criteria for these purposes are met, it seems to me that the District Judge put far too much weight upon the fact that the allegations which the appellant made in the blog were uncorroborated or, as he put it, "totally unsubstantiated".
8. We observe he did not find as a fact that what the appellant had said was untrue or that he did not believe that it was true. Certainly, he did not find that what he had written was unreasonable.
9. I also accept that where what is written in a blog is or at least is claimed to be in the nature of an investigation or exposure of corruption or some other public wrongdoing, then the qualified right to freedom of expression provided by Article 10 of the European Convention on Human Rights will be engaged. The District Judge did refer to Article 10. I have already set out his conclusions at paragraphs 3 and 4, but it is perhaps worth setting them out again in full.

"Mr Perry's postings, communications and meetings went far further than holding opinions and I found it a nonsense for him to hide such appalling actions behind Article 10 of the European Convention on Human Rights. Article 10 is a qualified right which takes account the rights of others."

"The conditions and restrictions of the Anti-Social Behaviour Order are necessary as a result of my findings and can be justified under Article 10 of the European Convention on Human Rights. Mr Perry has made it clear that this is not the end - he has further allegations to make. Only an Anti-Social Behaviour Order will prevent any further incidents. It is completely right, proportional and necessary. Mr Perry's pattern of action, which includes personal contact etc, shows warnings are not sufficient. I decided that it was necessary to make an Anti-Social Behaviour Order for then years."

10. However, even if it is to be inferred from these passages that the District Judge did find the pressing social need to restrict the appellant's freedom of expression, he did not identify the particular risk of social harm which the appellant presented, nor did he go on to strike the balance between that need against the particular risks identified so as to ensure that any interference with his rights was necessary and proportionate to the risks which he presented. It seems to me, indeed, that his consideration of these matters in the course of those short paragraphs to which I have referred was, in effect, perfunctory and even dismissive. In my judgment, he has not properly worked through the relevant considerations under Article 10. The blogs themselves may have been offensive. There may be a time when, if repeated, some form of intervention by the courts is required, but I do not think that in this case what he wrote on these blogs came anywhere near meeting the statutory criteria for an ASBO. It simply was not sufficient to say that they should not be tolerated. That is not the test.
11. I move on then to consider what the District Judge called the "face to face contact and threats." In respect of Mr Wood, the town clerk, the appellant had photographed his house and his car and posted them on the website suggesting that inquiries should be made as to his means, no doubt intending thereby to suggest that he had obtained them by corruption. It was no doubt irritating that these photographs of his house and his car appeared on the internet, but I consider it to be very questionable whether it amounted to seriously anti-social behaviour.
12. I turn to Mr Poessl. The appellant alleged that he had conspired with Mr Wood to cover up a minor traffic offence of going through a red light; an offence alleged to have been committed all of eight years ago; on his blog. He referred to Mr Poessl as Herr Poessl. He is, in fact, of German descent. He referred to him wearing jackboots and even to him being a Obergruppenfuhrer. This was again, no doubt, ignorant and offensive, but I do not think that it can be called racial abuse. The only personal contact with him was a phone call to him and perhaps another phone call to his wife.
13. Mr Amos, the Methodist minister, was photographed in a pie shop which he captioned "Tubby". The appellant also went to his house and to his church and photographed him at the kitchen window. The District Judge refers to them threatening Mr Amos, but the threat was not of physical violence. It was that he was "going to bring him down with his journalism." The District Judge described this as a "repeated attack on a member of the public." That language seems to me to be somewhat extravagant in the circumstances.
14. Mrs Akcicek, the fish and chip shop owner, was distressed by what he had written about her, but there was no personal contact with her at all. Indeed, the staff dismissed him as "a harmless idiot".
15. As I have already made clear by setting out the findings of the District Judge in some detail, the appellant had made allegations of corruption also against Mr Buckle, but the personal contact there was limited to a single phone call. No doubt all these complainants feared for their reputation, but no more.
16. I appreciate that District Judges in determining these applications must be allowed a wide measure of appreciation. This court should not interfere unless the order made is one which could not reasonably have been made on the evidence adduced. In my judgment, the District Judge far too readily accepted the assertion made by each of the complainants that they had suffered harassment, alarm or distress. More is required than repeating this mantra in each witness statement. It seems to me that the entries on the blog and the physical contacts such as there were between the appellant and those whom he targeted were offensive and tiresome, it is even possible that they could properly be described as amounting to anti-social behaviour but I do not think that the high threshold set by the statutory criteria was met at all.
17. The contacts in this case are far from those cases of stalking which sometimes come before the courts. No doubt if the appellant had persisted in this conduct, the time may have come, and of course it may come in the future, when he reaches the point that his conduct does amount to seriously anti-social behaviour, but at the time that the District Judge made his decision, I do not think that that stage had been reached. Therefore, the statutory criteria is not made out.
18. Therefore, in my judgment, the order should not have been made. I would answer each of these questions in the negative and it must follow that the order should be quashed.
19. Ms Baillie makes a further and supplementary point that even if the order had been justified, the scope and extent of the prohibitions were far too wide. She has focused her complaint about the length of time of the order which was fully ten years. That was, to my mind, way beyond anything which was reasonable or necessary. I think that other criticisms could have been made of other prohibitions as well, but it is not necessary to go down that route now and I do not propose to do so.
20. LORD JUSTICE PITCHFORD: I agree. Four questions have been posed for the consideration of this court. I would be minded to accept that the behaviour complained of was of an anti-social nature. However, my Lord and I are agreed that this was not a case in which an Anti-Social Behaviour Order was necessary on the facts of the case.
21. MS BAILLIE: My Lord, there is the question of costs. I am assuming -- and I do not if I am right to do so -- Mr Perry was ordered to pay costs at the Magistrates' Court in the sum of £6,000. I am assuming that that costs order is also quashed.
22. MR JUSTICE OPENSHAW: That must be right.
23. LORD JUSTICE PITCHFORD: The appeal will be allowed. The Anti-Social Behaviour Order will be quashed. The order for costs in the court below will be quashed.
24. MS BAILLIE: Thank you.
25. LORD JUSTICE PITCHFORD: Thank you.