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
		23/02/2012

Mr Justice Tugendhat :

1. Late on the evening of 15 February the applicant applied to the judge on out of hours duty for an injunction. It was granted, and notified immediately to a number of media organisations. It included the following substantive provisions:

"3. Publishing restrictions

This order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of:

(1) The claimants name and address as identified at Schedule 2 of this order

(2) Any photograph or film or video or other image that identifies or is likely to identify the claimant's address as being the address at which the claimant lives

(3) Any photograph or film or video or other image showing any occupier or any invitee within the house or garden of the claimant's address.

4. Restraint on harassment

This order prohibits the defendant from

(1) Harassing, pestering, threatening or otherwise interfering with any occupier or invitee within the house or garden of the claimant's address;

(2) Entering, attempting to enter or approaching within 100 yards of the claimant's address;

(3) Communicating or attempting to communicate with the claimant by any medium".

2. The Protection from Harassment Act 1997 Section 1 (1) (a), so far as material, provides:

"(1) A person must no 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…

(2) The person whose course of conduct is in question ought to know that it amounts to … harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to … harassment of the other.

(3) Subsection (1) …does not apply to a course of conduct if the person who pursued it shows – (c) that in the particular circumstances the pursuit of the course of conduct was reasonable. …

3 (1) An actual or apprehended breach of Section 1 (1) may be the subject of a claim in civil proceedings …

(3) Where – (a) in such proceedings the High 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.

…

7(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 (c) Section 1 (1)) conduct on at least two occasions in relation to that person…".

3. Measures to ensure that respect is given to person's home and family and family are required by ECHR Art 8 and HRA s.6. In so far as the order that I make prohibits disclosure of information, it is with a view to preventing interference with that right by intrusion or harassment, not preventing disclosure of information which is sensitive for any other reason. Accordingly, while I have had regard to HRA s.12, in my judgment the balance comes down in favour of protecting the claimant's right to respect for his home and family life. The evidence set out below demonstrates that there is a strongly arguable case that such an order is required.
4. The evidence in support of the application is set out in a witness statement dated 15 February by Ms Flanagan, an assistant of the claimant's solicitor. The evidence relates to two properties, one being his own home, and the other being the house of which he is a landlord. The evidence includes the following:

"4. At 3.30 pm today the media came to my house at the above address. There was no one home so they went to the house of my brother. I don't know how they got our details. My details are on the land registry for [the house that he rents] so they may have got it from there. There was someone home in my brother's house when they went there. They gave them my contact phone number. The media then phoned me. I was on the phone for 25 minutes. The caller said his name was Anthony and he was from The Sun newspaper. I said I could not answer questions and had to go home to sort a number of things out. I said I would call him back. When I got home at 3.30 pm he was already at my house and was asking me more questions. I told him that I would call him and he should not have come to my house.

5. More media then turned up at my house. I do not know who they were. They were calling my phone and knocking at my door. I told them to get away from my house. They were taking photographs of me when I went outside. My children couldn't go outside.

6. They kept asking me questions. They were asking me who was staying in the house [that I let], what are their names, how many people are living there, how much rent do they pay, how do they pay, where is the money coming from? They already seemed to have a lot of information, I didn't know if someone had given them a copy of the contract. I don't know if they did have a copy of the contract they just seemed to know a lot of detail about it.

7. They began asking me how many children are living in [that house] and what ages they are. They then began asking me about my family and me: how old I am, how many children I have. I became panicked at this. I can't live like this with people chasing after me and phoning and knocking at my door. I don't want my family dragged into this.

8. I did not know that the family [to whom he had rented the other house] were related to Abu Qatada. I did not know him. I told them 'I do not have his name on the contract. I have the name of a mother with four children'. That's all told them. I was panicked by all the questions and them taking photographs and being at my house.

9. The media showed me pictures of the house [that I let] and showed my pictures of him (Abu Qatada) at the door of the house. There were about 15 people from the press outside the house in the photograph. They kept asking if I knew about him and that he was living there. I didn't answer.

10. I can't deal with this. This is the worst day. People ask me about my family and knocking on my door was too much. I can't cope with this I don't want my family involved.

11. Ten minutes ago there were still two cars with media people outside my house. I don't know if it will get worse again but this can't go on. I can't allow them ([the mother to whom he let the other properties] and her children) to stay in the house if things are like this. I will have to serve notice on them".

5. Ms Gareth Peirce, the claimant's solicitor, made a witness statement dated 15 February 2012. She refers to the statement of Ms Flanagan. She goes on to state that there have been a number of orders prohibiting disclosure of the bail address of Mr Othman otherwise known as Abu Qatada. Mitting J made one in the Special Immigration Appeals Commission on 13 June 2008. Irwin J made another on 18 June 2008. Mitting J made a third on 20 June 2008.
6. In her witness statement of 15 February 2012 Ms Peirce goes on to state:

"It would appear that although there is in place a prohibition on publishing any photograph of the premises or identifying the address, that has not prevented photographs being taken which are then being deployed in other ways, for instance showing to the landlord [the applicant], in an attempt, it must be assumed, to cause him to wish the family to leave that house".

7. Ms Peirce's firm also acts for Mr Othman. In that capacity on 10 February 2012 she had written to the Press Complaints Commission seeking assistance in relaying urgent guidance to the media under Clause 6 (Children) of the Editors Code. She points out that the family of Mr Othman are at the address at which they are by an order of the court which identifies that address as a condition of bail. That family is not able to leave without being in breach of that order.
8. In the editions of The Sun newspaper dated 17 February, both the paper version and the online version, a story relating to the applicant. Very properly the publishers have not named the applicant. The interest of the newspaper and the public in the applicant derives solely from the fact that he finds himself the landlord of Mr Othman.
9. The claim form in the present proceedings was issued on 17 February 2012. On the same day the matter came before me, that was last Friday. The order made by the judge sitting out of hours had been prepared in haste and it had come to the attention of those advising the applicant that it was not in accordance with the requirements of the Civil Procedure Rules Practice Direction Part 25A or the Practice Guidance on Interim Non-Disclosure orders issued by the Master of the Rolls in August 2011. There were omitted a number of undertakings which are required to be given. Those undertakings were given and accepted by the court on Friday.
10. Since 17 February solicitors for the applicant have notified a number of media organisations of the order, as set out in the witness statement of Ms Stewart of the claimant's solicitors. Only two have responded, namely the publishers of The Sun, News Group Newspapers Limited, and the publishers of The Guardian. Neither has indicated any intent to oppose the continuation of the order. The solicitors gave notice to the media organisations that there would be a hearing on Monday 20 February. That is the hearing which commenced at 2 o'clock and is the subject of this judgment. The Application Notice with accompanying documents, the Claim Form and a note of the hearing on 17 February were served.
11. The proceedings have been issued, and documents sent to the various media organisations with the applicant's name in the title in the usual way. No application for anonymity was made or granted. Nevertheless I have not included the name of the applicant in this judgment. Although there is no order for anonymity, publicly to name the applicant is likely to be a breach of the terms of the order.
12. All orders made by the court on an interim basis may be varied on the application of any party affected. This is well known to all media organisations. Since none have made any submissions to the court, or indicated to the applicant that they have any intention to do so, and since they received notice of today's hearing, there is no need for a further return date in this matter. The order that I have made includes the terms set out above from the order made by the out of hours judge.
13. The evidence of Ms Flanagan identified a reporter claiming to be from The Sun as the first of those acting in the manner complained of. Accordingly, the applicant asked for permission to amend the proceedings to name the publishers of The Sun as First Defendants, and the unknown persons acting in the manner complained of as Persons Unkown. I gave permission to amend.
14. At the hearing on Monday 20 February Ms Hirst (who was not the counsel who had made the application to the out of hours judge on 15 February) informed me that over the weekend journalists had been outside the applicant's house, knocking on the door and asking him to contact a person said to be a representative of The Sun. He did not do this.
15. On the basis of the evidence before the court as set out above, I stated that I would make an order and give my reasons in writing later. These are they.
16. The matter will now proceed by service of the Particulars of Claim in the usual way.