England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/12/2009

Mr Justice Akenhead:

Introduction

1. The purpose of the hearing to which this judgement relates was the determination of the extent and scope of the final injunctions to be imposed on the Defendants following the order for summary judgement made by Mr Justice Hamblen on 23 July 2009. These final injunctions would replace the interim injunctions made by Mr Justice Treacy on 23 April 2008.
    
   
2. In broad terms, the Claim brought by the Claimants relates to a sustained campaign of the serious harassment and on occasion serious criminal offences carried out by SHAC which is in effect an umbrella organisation whose object was, at least originally, to close down a company called Huntingdon Life Services ("HLS"), which has conducted clinical testing on live animals. SHAC, its member, participants, supporters and other protestors have however over some years extended their activities, which also include lawful protest, to other companies such as the Bayer group who it is thought, rightly or wrongly, have connections with HLS.
3. The 2^nd, 3^rd and 4^th named Defendants are serving long terms of imprisonment for serious criminal offences associated with HLS, its employees and others. They, with others, set up SHAC. As well as serving time in prison, they are subject to ASBOs. They have declined to participate in the current proceedings.
4. There have been over the years a large number of interim and final injunctions made against SHAC and indeed the2^nd, 3^rd and 4^th named Defendants. These include Huntingdon Life Sciences Group v SHAC (Case No. HQ03X01149: [2007] EWHC 522 (QB), [2003] EWHC 1139 (QB)) Bayer v Elizabeth Snook (Case No. HQ03X03859), Hall v Save the Newchurch Pigs v SHAC and others (Case No. HQ04X03789, [2005] EWHC 372 (QB)), University of Oxford v Broughton and SHAC and others (Case No. HQ04X2793, [2008] EWHC 75 (QB), [2008] EWHC 75 (QB), [2004] EWHC 2543 (QB) ), Novartis v SHAC (Case No. HQ06X03887, [2009] EWHC 2716 (QB)), PDP Couriers v SHAC (Case No. HQ06X01377), Aventis Pharma v SHAC (Case No. HQ06X02549), and Smithkline Beecham PLC and others v SHAC and others (Case No. HQ07X01122, [2007] EWHC 948 (QB) ). Some of these involve judgements leading to interim and some to final injunctions.
5. I have seen and heard well and courteously presented oral and written argument from both sides and I should complement both parties in terms of the measure of cooperation between them and with the Court to limit the areas of dispute. In this context a travelling draft order has passed between the parties and the final version highlighting the disputed areas has been provided to the Court. Towards the end of the hearing, I invited the Claimants' advocate to provide a final version of the order which they asked the court to make. This was to take into account concessions which they and Dr Gastone had made during argument. This they did by e-mail to the Court on 4 December 2009. Dr Gastone replied by e-mail dated 7 December 2009 which addressed and raised a number of points; he also said that it was unfair because the draft should have been based on the travelling draft. I do not consider that there has been any un-fairness because there were aspects of the travelling draft which I was told by the Claimants were objectionable but they had not produced a final form of wording.

The Proper Approach

6. I start from the position that Mr Justice Hamblen has given judgement in effect on liability against the Defendants. The case on liability was set out in the Particulars of Claim attached to the Claim Form dated 31 March 2008. That pleading identified amongst other things the facts that the Claimants had been targeted by these Defendants and that their campaign was conducted "in close association with and/or is supported by unlawful and/or violent activities which are carried out in the name of the Animal Liberation Front (" the ALF") for which the ALF often claim and admit responsibility. Many of these activities are and/or had been reported by both SHAC and the ALF in their various and respective publications and web-sites…" (Paragraph 11). At Paragraph 13, it is pleaded that SHAC's leaders' conduct "towards the Claimants amounts to nothing less than criminal terrorism…" and that such "unlawful conduct constitutes a breach or breaches of the 1997 [Protection of Harassment] Act and/or is actionable in taught at the suit of the Claimants. Paragraph 17 pleaded that each of the Defendants was "pursuing and threatening to pursue a course of conduct which amounts to harassment of the First Claimant's employees and which has caused such individuals anxiety or threatens to cause them anxiety, alarm and distress, and in some cases personal injury." A large catalogue of unlawful acts were set out in Paragraphs 21 and 22 which included purely criminal acts such as criminal damage, harassment arson and assault as well as trespass injurious affection and civil harassment.
7. I proceed on the basis that liability as pleaded both in fact and in law has been established by the reasoned summary judgement of Mr Justice Hamblen. The learned judge did not in his judgement exclude from that judgement any part of the case pleaded against the Defendants.
8. In his second witness statement for the summary judgement application, Mr Dawkins provided two files' worth of documented complaints against the Defendants which were not seriously disputed if at all. These related to HLS, these Claimants and numerous other companies which are said either to have had some association with HLS or to be otherwise supposedly objectionable.
9. It is worthwhile setting out the most applicable Articles in the European Convention on Human Rights:

"Article 8 Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 9 Freedom of thought, conscience and religion

1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 Freedom of expression

1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11 Freedom of assembly and association

1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

10. It is clear from this wording, let alone as a matter of common sense, that, where possible, these rights should be read together to complement each other. Thus, in the context of this case, whilst the Defendants have rights of free expression and assembly, the Claimants and the employees have rights not to be harassed at their homes and also not to pay any attention to the views expressed (freely) by the Defendants. Inevitably, in a free society, there will or may have to be compromises between the rights of different members of the community or public. All these rights are important. It is axiomatic that, in granting civil relief to a party whose legal rights have been infringed, in particular injunctive relief, the Court must act proportionately in the sense that, whilst the victims' rights are preserved and protected, the wrongdoer should within reason be permitted to act lawfully. Articles 10 and 11 themselves require or enable the protection of the rights and liberties of others to be taken into account.
11. Dr Gastone has placed considerable reliance on a number of cases both in the United Kingdom and Europe which address Articles 10 and 11; these cases include Handyside v UK (1976) 1 EHRR 737, Kelly v BBC [2000] 3 FCR 509, AG v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545, Saya v Turkey (Oct 2008 ECHR, BAILII: [2008] ECHR 1021 ) and Barraco v France (2009) EHRLR 4. He accepted however in argument, properly in my view, that proportionality must take into account and balance not only the rights of the defendants under Articles 10 and 11 freely to express their views and to assemble for that purpose but also the rights of the Claimants.
12. The Court must bear in mind that the Defendants including currently unnamed protesters and supporters have been guilty of serious criminal and tortious activity over a long period of time against the Claimants and others and there is no reason to doubt the thrust of the Claimants' evidence that they do not wish to be harassed any more.
13. I will now review those parts of the draft order about which there remains an issue between the parties.

The Definition of "Protesters"

14. There is no issue that it will be "Protestors" who are to be injuncted and that specific Defendants should as such be considered to be "Protesters". The real issue is whether the definition should include in addition other persons who will be given notice of the terms of the Order. Following indications during argument, the Claimants have produced an amended draft definition at Paragraph 3.5 of the Definitions part of the proposed Order:

" " Protestor" or "Protestors" shall mean:

(1) The Defendants whether by themselves, their servants, agents or otherwise; and

(2) Any other person who is acting in concert with any of the named Defendants to do any act prohibited by this Order and who has notice of the terms of this Order whether by himself, his servants, agents, or otherwise; and

(3) Any other person who the Claimants reasonably believe has harassed or threatens to harass the Protected Persons and has been given notice of the terms of this Order whether by himself, his servants, agents, or otherwise."

Dr Gastone does not object to sub-paragraph (1) but argues that the "concert" should relate to the "exposing, deterring obstructing or preventing the business relationship between the Claimants and" HLS. I do not consider that this argument is a good one. There it is overwhelming and largely un-challenged evidence that SHAC and associated organisations and people are and have been unlawfully targeting the Claimants partly in the belief that there may be some connection or relationship between the Claimants and HLS but also partly in any event. A primary object must be to protect the Claimants from unlawful activity and other harassment. It does not make sense for the Claimants to have to re-establish that not only is there a concert between the Defendants and others but also that the object is to undermine the relationship between the Claimants and HLS. It does make sense that the Claimants have to show that there is a concert between the Defendants and others to carry out unlawful acts.

15. Dr Gastone objects root and branch to the definition in sub-paragraph 3 on the basis that they are not parties to the current claim. He expressed concern that it would be virtually within the discretion of the Claimants as to who would be the subject of injunctions granted by the Court. That concern was a legitimate one before the amended draft emerged because on the earlier draft the Claimants could in effect make someone a "Protester" simply by giving him or her notice and there was thus room for accidental or even deliberate abuse by the Claimants. I have formed the view that it is proportionate and reasonable, given the nature of SHAC, its associations and its past and continuing activities, to define "Protesters" as the Claimants have now done subject to some further amendments which I consider are appropriate. It is proportionate because the newly added Protesters will have specific notice of the injunction and its terms but can apply to the Court at any time to vary or discharge the order against them for any good reason but for the added reason that the Claimants did not have a reasonable belief that the newly added Protesters had harassed or threaten to harass the Protected Persons. Put another way, if the newly added Protesters are innocent or cannot be shown to have harassed or threatened to harass, the probability is that the injunction will be discharged as against them.
16. The amended wording of sub-paragraph (3) should be:

"(3) Any other person who the Claimants reasonably believe has harassed or threatens to harass the Protected Persons whether by himself, his servants, agents, or otherwise and who has specifically been given notice of all the terms of this Order."

This is self explanatory. The reference to "whether by himself, his servants, agents, or otherwise" must relate to the harasser; notice must be given to the harasser and not to his servants agents or otherwise. The notice to be given must be given specifically to that person and the notice must be of all the terms so that the recipient knows what is expected of him or her and knows what the consequences are or may be of non-compliance and also that he or she has a right to apply in court to have the order discharged against him or her.

The Definition of Protected Persons

17. The main point of issue is whether the definition of "Protected Persons", namely those for the benefit of whom the orders are being made, should include former employees. There is the clearest evidence over many years that Protesters as defined in the Order in this case have criminally targeted employees of companies believed to have associations with HLS; examples, amongst many, are the explosion of a bomb on the doorstep of a director GlaxoSmithKline on 7 September 2005, Novartis employees having their car tyres slashed and various Bayer companies' employees being similarly targeted There is clear evidence that former employees are or may be targeted; for instance, in a Bite Back posting on the web on 7 April 2009, the following was said by the "The militant Forces against HLS" about a former retired director of Bayer, whose house, albeit in Germany, had been covered in spray paint with a message "Bayer-Animal Auschwitz Drop HLS:

"How was your retiring day Dr Franz? When you woke up on Tuesday morning March 31 that [sic] this will be your last day at Bayer and live your life without your past. But none of this is true. We will keep hunting down the scum who killed animals, not forgetting about gassing the Jews by Bayer. We will never let the scum like you life [sic] in peace. Your past will always follow you…"

18. There is no obvious reason why they will not remain a target, for instance if they move within the Bayer group or if their involvement as employees is thought by the Protesters to have been particularly objectionable to them. I am wholly satisfied that it is proper and proportionate for the definition to include ex-employees.
19. The only other slight difference is in relation to Paragraph 3.6.4 of the definition of Protected Persons where the Claimants' suggested wording is:

"any person (other than a Protester) seeking to visit the premises of the First Claimants, alternatively the premises or home belonging to or occupied by any of the foregoing Protected Persons."

Dr Gastone did not specifically agree to the underlined part but it seems to me that it is sensible for the avoidance of doubt that there is a specific reference to the home of the Protected Persons to avoid confusion amongst the Protesters as to whether it is only the work premises which are being referred to.

The Period for the Order

20. The issue is in effect whether the Final Order should continue indefinitely but with permission to any party to apply on notice or for five years and then be fully reviewed by the Court, with the Claimants preferring the former and Dr Gastone the latter approach. I can see no difficulty and some advantages in adopting the indefinite approach. There is and will be flexibility because if circumstances change, it will be open to any party at any time to apply to the court to vary or even discharge the order; therefore, any review can be conducted by the Court at any stage. The need for what may turn out to be an unnecessary review in five years time is therefore avoided.

Paragraph 5 of the Order

21. This follows Paragraph 4 which it is agreed should contain the following order:

"The Protesters be restrained from pursuing a course of conduct such as amounts to harassment of the Protected Persons within the meaning of the Protection from Harassment Act 1997."

Paragraph 5 contains particular things which are Protesters are to be restrained from "doing, causing, permitting , encouraging or assisting" with. Indeed, much of Paragraph 2 is not objected to.

22. Paragraph 5.2 of the draft Order as proposed by the Claimants reads as follows:

"intentionally photographing or videoing any Protected Person or his vehicle (save that for the avoidance of doubt, Protesters may photograph or video each other and non-Protected Persons including Police Officers."

That order is, properly, not opposed

23. Dr Gastone however seeks a qualification to the order to permit Protestors to photograph or video a Protected Person who is committing some offence. The Claimants oppose this because there is no evidence that Protected Persons have committed offences at least towards Protesters. I have formed the view that this qualification does not have to be made and should not be made. The evidence presented to the Court shows that there is no evidence of any real likelihood that Protected Persons will commit offences towards Protesters. The evidence does reveal that the police will usually be informed of any protest in advance and that the police will commonly attend protests. If, in the unlikely event that Protected Persons commit offences, there is adequate protection for the Protesters because the police are likely to be present, save possibly where the Protesters act in breach of the Final Injunction. The danger is that the Defendants in the past have targeted Protected Persons and, if they are permitted to photograph or video them, the photographing or videoing of them would facilitate unlawful harassment of them. The other difficulty which arises is that, if Protesters were permitted to photograph or video a Protected Person who was allegedly committing an offence, they might well be in breach of the Injunction if it turns out that no offence was being committed. There are other difficulties in terms of definition in relation to the types of offence which the Protected Person might allegedly be committing: if his or her car was thought to have insufficient tread on its tyres (an offence generally have nothing to do with the Protesters), it would be inappropriate in the circumstances of this case for the Protesters to use that as an excuse to photograph that Person. Put another way, the proposed exception is one which is too open to abuse by the Protesters.
24. The proposed Paragraph 5.3 of the draft Order seeks to restrain the Protesters from:

"making:

5.3.1 any personally abusive or threatening communication whether orally, by telephone, in writing, by facsimile, or by e-mail to any Protected Person which shall include repetitive telephone calls, facsimiles, or e-mails;

5.3.4 any communications whatsoever to any Protected Person at their homes, or on their private telephones, e-mails or social networking sites."

There is no substantive objection to Paragraph 5.3.1 although Dr Gastone considered the last nine words were unnecessary and he thought that the word "repetitive" might need definition. However, it is difficult to define in advance what "repetitive" may mean for any given contact. Thus, a telephone call every birthday and Christmas might be repetitive but five calls over a year might not be. It would all depend on the circumstances. I do not see any danger or difficulty in including these words as repetitive calls, faxes and e-mails from the Protesters to Protected Persons are likely to be harassment.

25. Paragraph 5.6 contains somewhat infelicitous wording because it seeks to restrain the Protesters from "inciting or compelling any Protected Person against his will from doing something he is entitled or required to do". It seems to me that the words "from doing" need to be re-written as "not to do" because it does not otherwise make sense.

The Exclusion Zones

26. The purpose of Paragraphs 6 and 7 of the proposed Order is to limit protests in and around the area of five sets of premises which the Claimants have and use. The original pleading related to three premises but there is no objection to the Final Injunction relating to the five premises (in Cambridge, Little Shelford, Great Chishill, Widnes and Norwich). There are five plans to be attached to the order which identify those areas from which the Protesters are to be excluded but also identify a "designated protest area" ("DPA") where once a week the Protesters can gather to protest. There is no objection to the identified DPAs, as set out on the latest versions of the plans.
27. The parties are agreed that the number of Protestors at these protests shall not exceed 26 individuals; this equates, so Dr Gastone said, to two minibuses' worth of people. It is also accepted that the maximum duration of the protest shall not exceed six hours at the Cambridge Science Park site. There is an issue as to whether the maximum duration at the other sites should be six hours (as Dr Gastone argues) or two hours (as the Claimants argue). I have formed the view that for all these other sites a 4 hour window for protests should be sufficient to allow a reasonable protest. The time, subject to what I say below, can be chosen by the Protesters and can be on any day of the week so as to maximise the impact of the protest. Given that even the six hour period proposed by Dr Gastone would not cover the whole of the working day in any event, a four-hour period should more than adequately cover the beginning or the end of the normal working day if the protesters are trying to reach employees at the Claimants' premises, whilst, if they are trying to impress passing members of the public or visitors to the Claimants' premises, those hours should suffice. I see no reason particularly to distinguish between the urban and country sites in this context. The Protesters would not, under the general law, be entitled to obstruct the public highway and, pursuant to the Final Injunction, they would be limited to the DPAs so that the Protected Persons can get to and from the sites without hindrance. Given the limitations and restrictions that will be imposed so far as noise is concerned, a four-hour period per week should not unduly interfere with the Claimants' use and enjoyment of the premises. There will of course be permission to apply to either side if in practice a longer or shorter period becomes more appropriate.
28. The next issue is whether the Protesters can protest at any time over a 24-hour period, as Dr Gastone argues, or simply between 8 am and 6 pm, as the Claimants propose. One of the main reasons why the Claimants argue for this restriction is that it would enable those employees who simply have no wish to be subjected to the attentions of the Protesters to arrive early or leave late. There is a balance to be made here. It cannot be a human right to subject another (adult at least) to the expression of views which that other person simply does not want to see or hear; alternatively in respect of any human rights which there are, arising under Articles 10 and 11, it is not wrong in principle to impose some restriction on the exercise of those rights to protect the rights and freedoms of others. To allow lawful protests once a week on any day of the week for periods of up to four hours (or six in the case of the Cambridge Science Park) between 8 am and 6 pm is in my view proportionate. If they wish to seek to influence the employees visiting the premises, they can pick in different weeks the early or later part of the day as the time most likely to attract their attention. If they wish to influence the passing pedestrians or motor traffic, they can pick a time (say, rush hour) which is likely to provide the greatest impact. Dr Gastone argues that, by imposing the 8am to 6pm restriction, those Protesters who are in regular weekly work will not be able to attend to protest. He has not submitted any evidence that the majority or any significant number of Protestors can not attend during these hours. It is not unreasonable to assume that some of the Protesters will not be in employment, full or otherwise, that some will be working on shifts that would enable them to attend some of the protests within the designated hours and that many could attend to protest at weekends in any event.
29. The proposed Paragraph 7.6 put forward by the Claimants in their final draft has attracted vigorous objection from Dr Gastone not least because the final draft goes further than the wording previously put forward by the Claimants. The latest wording is:

"the Protesters may not bring in, carry or use any instruments whatsoever which may or may not be designed for the making of artificial or musical noise or to amplify sound (including megaphones), save that at the Science Park, Little Shelford premises, Widnes and Norwich premises one Protester only may carry and use one megaphone for oral communication, for not longer than two periods of 15 minutes, separated by a gap of at least one hour set at medium level or below."

This contrasts with the order in which Dr Gastone argued could reasonably be imposed:

"the Protesters being restrained for the duration of the demonstration from using any megaphone, klaxon, siren, whistle, drum or noise amplification device or any other instrument or other appliance used or capable of being used to generate noise, save that one megaphone may be used at any one time for global amplification only"

30. Subject to a reservation about the use of megaphones, I prefer Dr Gastone's language. No "noise amplification device" can be used and some musical devices such as whistles or drums are barred even on Dr Gastone's wording. I do not see and it has not been argued that a wider definition referring to "instruments…designed for the making of artificial or musical noise or to amplify sound" adds anything to or improves his wording.
31. Megaphones are clearly a potential problem. There is no doubt that they can be used improperly to intimidate and harass the Claimants' employees, to disrupt their working and to make them listen even if they do not wish to hear the message. As one witness for SHAC, Aran Mathai, says in his witness statements, megaphones are used "so people can hear what is being protested about and can form their own opinions based on the facts we present"; he believes that the use of amplified sound is a right under Article 10.
32. Of course, outside the exclusion zones, the Protesters can protest with whatever instruments they wish, subject to compliance with the law and other parts of the Final Injunction, and therefore they can impart their views to the public at large outside those areas without restriction. It must follow that a primary purpose of the use of megaphones is to seek to influence the Claimants' employees going to or from or being present at their place of work. The overwhelming evidence is however that those employees or at the very least a large number of them simply do not want to listen to the Protestors' views which they either find offensive or with which they otherwise disagree. That must be known to the Protesters and it must follow that extensive use of megaphones in effect at the PDAs is designed to make those employees listen whether they want to or not. On that basis, it is reasonable to impose restriction on the use of megaphones.
33. The Claimants' proposed restriction is reasonable so far as the amount of time for the use of megaphones is concerned but is not reasonable in restricting the use of the single megaphone to one Protester. There are many practical reasons for that, such as the megaphone may run out of batteries or the one Protester may have lost his or her voice. In my view a reasonably proportionate order in this respect should state as follows:

"the Protesters shall not for the duration of the demonstration use any megaphone, klaxon, siren, whistle, drum or noise amplification device or any other instrument or other appliance used or capable of being used to generate noise, save that only one megaphone may be used at any one time for no more than two periods of 15 minutes separated by at least one hour provided that is set at no more than a medium level of amplification."

Thus, it is legitimate for more than one Protester to have a megaphone with him or her but only one megaphone can be used at a time. The Protesters can use a megaphone at the times which they consider most suit them. I do not see that there needs to be a blanket restriction in relation to Great Chishill: although it is in a country area, two 15 minute periods per week (at most) in which a single megaphone may be used at a moderate level is not unfair, unreasonable or disproportionate. Indeed, the noise of a megaphone will probably be more readily and easily dissipated in a country area than in a built-up area. I leave open the question as to whether in an appropriate case the use of megaphones on or near claimants' premise could be banned altogether. As the Claimants in this case accept generally that some megaphone usage is proportionate and acceptable, I do not have to decide that point.

34. Dr Gastone has argued that Protesters should have a right once every three months to have "a lawful, peaceful procession or assembly on the public highway, and unfettered by the [other] constraints, [and they] may enter the Exclusion Zone on the Saturday, or a Sunday or a Bank Holiday" on various terms such as compliance with Public Order Act. The Claimants oppose this on the basis that the Protesters can protest (within the law and subject to Court Orders) outside the Exclusion Zones to their hearts' content and that the fewer employees who are present at the various premises at weekends or on bank holidays would be all the more intimidated. They have substantial objections to the form of order sought; for instance, the draft put forward by Dr Gastone would enable the Protesters to go anywhere in the Exclusion Zones and not to be limited to the DPAs; there could be limitless use of megaphones. I am wholly satisfied that the draft order put forward by Dr Gastone is on any count excessively broad. In general terms, I am satisfied that it is not proportionate or reasonable to expect yet further demonstrations and protests over and above the one day per week protests already catered for in the Final Order. It really is not necessary or essential for Articles 10 and 11 purposes as it is open to the Protesters to protest at weekends and on bank holidays albeit on the "once per week" basis. Their wish to process along the roads in the Exclusion Zones would or could block access to or egress from the Claimants' premises, let alone the highways themselves. Of course, the Protestors can process and assemble outside the Exclusion Zones, subject to behaving lawfully, whenever they like.

Variation of Order

35. There was some issue between the parties as to the period of notice required before seeking a variation or discharge of the Order. Originally, the Claimants were calling for 28 days whilst Dr Gastone initially conceded only 7 days. I suggested in argument that a reasonable period was 14 days which would be sufficient to allow the exchange of witness statements and written submissions from both sides so that there could be an informed hearing before the Court. I understood that both parties accepted this. It is, for those reasons and in any event, a reasonable and proportionate period. If at the first hearing the judge decides that more time for preparation is required, that can be ordered. There is nothing to stop an emergency application, even without notice, if something crops up which either side feels with justification must be addressed more promptly. The Order should specifically have a saving that "nothing in this Order shall prevent a party from seeking emergency relief without notice or upon shorter notice".

The Position of the 2^nd, 3^rd and 4^th Defendants.

36. Although Dr Gastone does not purport to act for the other defendants, he raised the point as to whether it was appropriate for them to be parties to the injunctions. The summary judgement was against all defendants and it is clear that those defendants before their incarceration (at least) were heavily involved in directing SHAC and themselves in extensive criminal and other harassment activities. There is no reason in principle why they should not be subject to the Final Injunction (as indeed they were subject to the Interim Injunction imposed by Mr Justice Treacy). The only issue which possibly arises is the extent to which there might be some conflict between the terms of the ASBOs imposed on the 2^nd, 3^rd and 4^th Defendants, and applicable in particular upon their release, and the terms of the Final Injunction. However those ASBOs imposed by the Crown Court at Winchester on 21 January 2009 are primarily related to Huntingdon Life Sciences as opposed to Bayer CropScience and its employees. In some respects, the ASBOs go further than the Final Order in this case will go in that the 2^nd, 3^rd and 4^th Defendants are required by them not to be involved in any demonstration, meeting, gathering or website protesting against animal experimentation. Paragraph 6 of the ASBOs does impose a requirement on those defendants not to contact the owners, shareholders, employees or agents or members of the families of those persons of any of the companies which are named in Schedule 1 (including Bayer). There is no particular conflict between the Order which I will make and the ASBOs; my Order will give rise to its own remedies if those defendants breach it, albeit that it may be the case that substantive and substantial compliance with the ASBOs will largely involve compliance with this Order. There are some differences, for instance, the ASBOs do not as such prevent those defendants from going within 50 yards of the houses of the Claimants' employees whilst this Order does. This Order should specifically be served on those defendants by post to the prisons where they currently reside.

Miscellaneous matters

37. The first lines of the Claimants' current draft Paragraphs 6 and 7 require the insertion of the following words; "The Protesters shall be restrained from".
38. In argument, there was discussion about what should be done about the Order in the case of Bayer PLC v Snook and others, to which the First Defendant was nominally the 10th named defendant party because, as the judge's judgement in that case on 13 February 2004 seems to confirm, proceedings against the 10th defendants were discontinued (see Paragraph 30 of his judgement). I strongly suspect that there is a misunderstanding because, as the judge indicates, there were originally 11 defendants but the discontinuance was against the originally named 10th defendants. It looks realistically as if the First Defendant in these proceedings was in fact the 11th defendant in the 2004 proceedings and that is why, following the discontinuance against the 10th defendants (whoever they were), the First Defendant is named as 10th in the list of defendants in the 2004 order. In any event, it matters not because, at my suggestion, the parties have agreed that Paragraph 9 discharges the earlier order "in so far as it relates to the Claimants and in so far as it applies to any of the Protesters as defined in this Order". I suggested this so as to avoid confusion, so that the Protesters as defined in this Order will know that they are bound by this Order as opposed to the earlier order. Obviously, if there have been breaches of the earlier Order, they would and should be dealt with as a matter of contempt of court in relation to the earlier Order.
39. There was much discussion about whether the Final Order in this case should follow all or parts of earlier orders, some interim and some final, made in different cases, some involving these defendants and others not. The difficulty about that approach is that somewhat different considerations apply on an interim injunction, where only a properly arguable case has to be established and a balance of convenience demonstrated as applicable to enable an injunction to be granted; thus, a presumption is made, based on credible statements, as to the facts. A final injunction is based on finally proven facts. The other difficulty is that, in each of the other cases, different facts and arguments are deployed; concessions are made in one case and not in another. Of course, this case can be informed by the other decisions and positively assisted by statements of principle and reasoning in them.
40. Particular reliance is placed by Dr Gastone on the judgement of Mr Justice Holland in Huntingdon Life Sciences Group PL C and others v SHAC [2007] EWHC 522 (QB) in which the final order made by the learned judge more closely followed the terms of the order which Dr Gastone seeks in this case. For instance the word "Protester" does not include the third definition in the Final Order which I am going to make:

"(3) Any other person who the Claimants reasonably believe has harassed or threatens to harass the Protected Persons whether by himself, his servants, agents, or otherwise and who has specifically been given notice of all the terms of this Order."

There was particular evidence called in that case by the Defendants which was not called in this case before me. It also does appear from Paragraphs of 13 to 16 in that judgement that the claimants in that case were not seeking a definition including the subparagraph (3) set out above. Thus, the fact that Mr Justice Holland did not include this definition seems to be because it was never argued that it should be; he certainly does not seem to have been invited to consider it. Mr Justice Holland considered that a single megaphone could be used between noon and 1 pm at one site and not at all at another site. He did allow once every three months "a lawful, peaceful procession or assembly on the public highway" at both sides but, as his judgement dealt with this at Paragraphs 29 and 37 relatively fleetingly, I infer that there was not much argument from both sides about this topic or, if there was, it was only as to whether there should be one such procession or assembly each month or over a longer period. Given that the evidence and argument in the case before me is somewhat different, I am not necessarily assisted by his decision in that specific respect, based as it was on the somewhat different evidence and argument put before the court. There is no "one size fits all" type of order in these cases; the appropriate orders in any given case will depend on the evidence, argument, particular circumstances and indeed concessions made by each side.

41. In the Interpretation section of the Order, there should be added:

"References to "he, him, his or himself" in the Order should be deemed to refer also to the equivalent female words and also to companies, entities and associations"

This is intended to ensure that there is no confusion as to who is covered by this order.

Conclusion

42. The Final Order should be drawn up by the Claimants to reflect what is said in this judgement but it should be copied to Dr Gastone before it is submitted to the Court. As is the usual practice, this judgement will have gone in draft to those representatives who attended the hearing; they should have specific regard to the "In Confidence" Notice at the top of the draft. Any amendments should be provided by email no later than noon on 16 December 2009 and I will hand down the judgement in open Court on 22 December 2009, the parties not being required to attend. Any further applications are to be in writing served on the Court and the other parties no later than noon on 16 December 2009.