QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| EDO TECHNOLOGY LIMITED ("EDO")
DAVID ANTHONY JONES
|- and -
|CAMPAIGN TO SMASH EDO and Others
27-29 Cursitor St, London, EC4A 1LT.
Tel : 020 7405 5010 Fax : 020 7405 5026
e mail : firstname.lastname@example.org
Mr Keir Starmer QC and Ms Stephanie Harrison instructed by Moss & Co for D3 (Mathew Axworthy), D4 (Simon Levin), D8 (Elizabeth Welch), D11 (Tom Daly), D12 (Jaya Nyanajoti), D14 (James Fenn) and D15 (Paul Fenn).
D5 (Mr Christopher Osmond), D10 (Ms Lorna Marcham), D17 (Mr Ceri Gibbons) in person.
D1 and D2 struck out; D6 (Anthony Parker), D7 (Cynthia Schwartz), D9 (Penny Steel) D13 (Thomas Gittoes) and D16 (Richard Hollis) did not attend and were not represented.
Mr David Perry instructed by the Treasury Solicitor for the Attorney-General.
Hearing dates: 1, 2, 3 November 2005
Crown Copyright ©
List of defendants:
(1) CAMPAIGN TO SMASH EDO ("SMASH EDO") [struck out]
(2) BOMBS OUT OF BRIGHTON CAMPAIGN ("BOOB") [struck out]
(3) MATHEW AXWORTHY
(4) SIMON LEVIN
(5) CHRISTOPHER OSMOND
(6) ANTHONY PARKER
(7) CYNTHIA SCHWARTZ
(8) ELIZABETH WELCH
(9) PENNY STEEL
(10) LORNA MARCHAM
(11) TOM DALY
(12) JAYA NYANAJOTI
(13) THOMAS GITTOES
(14) JAMES FENN
(15) PAUL FENN
(16) RICHARD HOLLIS
(17) CERI GIBBINS
Mr. Justice Walker :
"11. The claimants' case is that the activities of the defendants/activists together constitute a course of conduct which amounts to unlawful harassment contrary to the Protection From Harassment Act 1997 ... The claimants support this claim with ... particulars which they say establish that they have been the subject of unlawful harassment and consequently that they are likely to be the subject of unlawful harassment in the future."
"25. Accordingly, the claimants claim that unless the defendants and the unknown and unnamed protesters working in association with them are restrained the claimants are likely to be unlawfully harassed by the defendants/protesters contrary to the Protection From Harassment Act 1997."
"(1) A person must not pursue a course of conduct - (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.
(1A) A person must not pursue a course of conduct - (a) which involves harassment of two or more persons, and (b) which he knows or ought to know involves harassment of those persons, and (c) by which he intends to persuade any person (whether or not one of those mentioned above) - (i) not to do something that he is entitled or required to do, or (ii) to do something that he is not under any obligation to do.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other."
"(2) References to harassing a person include alarming the person or causing the person distress.
(3) A 'course of conduct' must involve - (a) in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person, or (b) in the case of conduct in relation to two or more persons (see section 1 (1A)), conduct on at least one occasion in relation to each of those persons.
(3A) A person's conduct on any occasion should be taken, if aided, abetted, counselled or procured by another - (a) to be conduct on that occasion of the other (as well as conduct of the person whose conduct it is); and (b) to be conduct in relation to which the other's knowledge and purpose, and what he ought to have known, are the same as they were in relation to what was contemplated or reasonably foreseeable at the time of the aiding, abetting, counselling or procuring.
(4) 'Conduct' includes speech.
(5) References to a person, in the context of the harassment of a person, are references to a person who is an individual."
"(1) A person who pursues a course of conduct in breach of section 1(1) or (1A) is guilty of an offence.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both."
"(1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.
(3) Where - (a) in such proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and (b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction, the plaintiff may apply for the issue of a warrant for the arrest of the defendant."
"(3) Subsection (1) or (1A) does not apply to a course of conduct if the person who pursued it shows - (a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable."
Prior hearings and the preliminary issues.
(a) Are matters of United Kingdom (UK) foreign policy and the deployment of the UK's armed forces in the exercise of the Royal Prerogative matters which are justiciable in these proceedings?
(b) Does the Defendants' composite Defence (the Defence) disclose the commission of any offences contrary to section 51 International Criminal Court Act 2001?
(c) Irrespective of the answer to question (b) above, does the Defence disclose any conduct ancillary to an offence under section 51 above, which is capable of constituting an offence contrary to section 52 of the Act?
(d) Irrespective of (a), (b), and (c) above, is there sufficient nexus or connection between the admitted conduct of the Defendants and the Defendants' assertions that they were acting to prevent the commission of crime(s) by the Claimants?
(e) On the facts set out in the Defence, is the Defendants' conduct capable of falling within the terms of section 1(3)(a) and/or (c) of the Protection from Harassment Act 1997, and does the commission of any alleged crime have to be immediate or imminent?
First construction point: objective nature of s 1(3)(c)
10. Mr. Butterfield's principal short submission on behalf of the appellant is that in order to apply this test the hypothetical reasonable person referred to in section 1(2) must be endowed with the relevant characteristics of the accused and in particular with any recognisable mental disorder to which he is subject. In the present case the consequence of the submission, if correct, is that the appellant is to be judged by the standards of the hypothetical reasonable schizophrenic.
11. Mr. Butterfield's associated secondary submission is that the jury ought to have been directed that it was open to them when considering the defence provided by subsection (1)(3)(c) to say that the appellant's conduct was, in the particular circumstances of his illness, a reasonable one. Any construction other than that, say Mr. Butterfield, is simply unfair to an accused with a recognizable mental illness.
17. The question raised by these submissions is one of the proper construction of the Protection from Harassment Act 1997. As the first word of that title suggests, this is an Act whose purpose is significantly protective and preventative. The long title is 'An Act to make provision for protecting persons from harassment and similar conduct.'
18. As well as making a course of conduct amounting to harassment an offence, the Act by section 3 provides civil remedies by way of damages for a breach of section 1 and by way of injunction to restrain an apprehended breach of it. Further, section 5 enables a criminal court, before whom a defendant has been convicted under section 2, to make a restraining order prohibiting him from doing anything specified. Such a restraining order is to be made for the purpose of protecting from harassment not only the victim of the offence but also any other person specified. As is well-known the Act was passed with the phenomenon of 'stalking' particularly, although not exclusively, in mind. The conduct at which the Act is aimed, and from which it seeks to provide protection, is particularly likely to be conduct pursued by those of obsessive or otherwise unusual psychological make-up and very frequently by those suffering from an identifiable mental illness. Schizophrenia is only one such condition which is obviously very likely to give rise to conduct of this sort.
19. We are satisfied that to give the Act the construction for which Mr. Butterfield contends would be to remove from its protection a very large number of victims and indeed to run the risk of significantly thwarting the purpose of the Act. If such a construction is correct it would prevent the conduct in question from being a breach of section 1 and thus exclude not only suitable punishment for the perpetrator, but also damages, and, more especially, an injunction or restraining order for the protection of the victim. We do not believe that Parliament can have meant the provisions in question to have the meaning fro which Mr. Butterfield contends. Moreover, as it seems to us, if Mr. Butterfield's submissions were correct then subsection 1(2) would have been inserted unnecessarily into the Act.
20. We agree accordingly with the learned judge that except in so far as it requires the jury to consider the information actually in the possession of this defendant section 1(2) requires the jury to answer the question whether he ought to have known that what he was doing amounts to harassment by the objective test of what a reasonable person would think. Its words, we are satisfied, are abundantly clear.
21. As to section 1(3)(c) that, we are satisfied, poses even more clearly an objective test, namely whether the conduct is in the judgment of the jury reasonable. There is no warrant for attaching the word 'reasonable' or via the words 'particular circumstances' the standards or characteristics of the defendant himself.
25. ... the provisions of section 5 and section 6 of the Public Order Act, as enacted and applied by the courts of this country, contain the necessary balance between the right of freedom of expression and the right of others not to be insulted and distressed. The right of freedom of expression was well established in the United Kingdom before the incorporation of the Convention. Peaceful protest was not outlawed by section 5 of the Public Order Act. Behaviour which is an affront to other people, or is disrespectful or contemptuous of them, is not prohibited: see Brutus v Cozens  AC 854. A peaceful protest will only come within the terms of section 5 and constitute an offence where the conduct goes beyond legitimate protest and moves into the realms of threatening, abusive or insulting behaviour, which is calculated to insult either intentionally or recklessly, and which is unreasonable.
26. It is significant in my view that section 5(3)(c) and section 6(4) of the Public Order Act specifically provide for there to be proof of mens rea and for the defence of reasonableness. Even where a court finds that conduct has been calculated to insult and has, in fact, caused alarm or distress, the accused may still establish on the balance of probabilities that his or her conduct was reasonable. The question of reasonableness must be a question of fact for the tribunal concerned taking into account all the circumstances.
27. Where the right to freedom of expression under Article 10 is engaged, as in my view is undoubtedly the case here, it is clear from the European authorities put before us that the justification for any interference with that right must be convincingly established. Article 10(1) protects in substance and in form a right to freedom of expression which others may find insulting. Restrictions under Article 10(2) must be narrowly construed. In this case, therefore, the court had to presume that the appellant's conduct in relation to the American flag was protected by Article 10 unless and until it was established that a restriction on her freedom of expression was strictly necessary.
28. I have no difficulty in principle with the concept that there will be circumstances in which citizens of this country and visiting foreign nationals should be protected from intentionally and gratuitously insulting behaviour, causing them alarm or distress. There may well be a pressing social need to protect people from such behaviour. It is, therefore, in my view, a legitimate aim, provided of course that any restrictions on the rights of peaceful protesters are proportionate to the mischief at which they are aimed. Some people will be more robust than others. What one person finds insulting and distressing may be water of a duck's back to another. A civilised society must strike an appropriate balance between the competing rights of those who may be insulted by a particular course of conduct and those who wish to register their protest on an important matter of public interest. The problem comes in striking that balance, due weight to the presumption in the accused's favour of the right to freedom of expression.
29. I turn to the way in which the District Judge approached the task that confronted him in this case. I remind myself that Ms. Percy attended RAF Feltwell intending to protest against the 'Star Wars' project, a matter of legitimate public debate. The message she wished to convey, namely 'Stop Star Wars' was a perfectly lawful, political message. It only became insulting because of the manner in which she chose to convey the message. That manner was only insulting because she chose to use a national flag of symbolic importance to some of her target audience.
30. In carrying out the balancing exercise, the District Judge first found that there is a pressing social need in a multi-cultural society to prevent the denigration of objects of veneration and symbolic importance for one cultural group. For my part, I am prepared to accept that he was entitled to find that such a protection was a legitimate aim. The next stage of his task was to assess whether or not interference with the accused's rights to free expression by criminal prosecution for using her own property to convey a lawful message in an insulting way was a proportionate response to that aim. The only aspect of the case referred to by the District Judge in this respect was the fact that the appellant's 'conduct was not the unavoidable consequence of a peaceful protest against the 'Star Wars' project, which was her stated intention, but arose from the particular manner in which she choose to make her protest'.
31. The fact that the appellant could have demonstrated her message in a way which did not involve the use of a national flag of symbolic significance to her target audience was undoubtedly a factor to be taken into account when determining the overall reasonableness and proportionality of her behaviour and the state's response to it. But, in my view, it was only one factor.
32. Relevant factors in a case such as this, depending on the court's findings, might include the fact that the accused's behaviour went beyond legitimate protest; that the behaviour had not formed part of an open expression of opinion on a matter of public interest, but had become disproportionate and unreasonable; that an accused knew full well the likely effect of their conduct upon witnesses; that the accused deliberately choose to desecrate the national flag of those witnesses, a symbol of very considerable importance to many, particularly those who are in the armed forces; the fact that an accused targeted such people, for whom it became a very personal matter; the fact that an accused was well aware of the likely effect of their conduct; the fact that an accused's use of a flag had nothing, in effect, to do with conveying a message or the expression of opinion; that it amounted to a gratuitous and calculated insult, which a number of people at whom it was directed found deeply distressing."
Second construction point: objective elements in s 1(3)(a)
Third construction point: meaning of "preventing crime" in section 1(3)(a)
Need an offence actually be committed?
Need it be the claimants who would commit the offence?
Need there be a specific and imminent or immediate crime?
Relevance of alternative methods of prevention.
Preliminary Issue (a)
Preliminary Issue (b)
Preliminary issue (c)
Preliminary issues (d) and (e).
Additional points raised by the claimants