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
		09/11/2018

Mr Justice Goose:

1. On the 25 February 2016 Dr Rita Pal, the appellant, commenced proceedings against the Commissioner of Police of the Metropolis, the respondent, for damages and declaratory relief arising out of her arrest, charge and prosecution for an offence of harassment under section 2 of the Protection from Harassment Act 1997. The claim was resisted by the respondent and proceeded to a trial in the County Court at Central London before His Honour Judge Freeland QC. On the 23 January 2018 the judge gave his judgment dismissing the appellant's claims. Permission to appeal was refused by the judge and also by this Court on a paper application. Subsequently, by order dated 23 August 2018 upon a renewed oral application for permission, permission was granted but on a limited basis.
2. The appellant's grounds of appeal are confined to three points: firstly, the claim for unlawful arrest; secondly, the claim for a declaration that the appellant's rights under Article 10 of the ECHR were violated and, thirdly, the claim for assault, but only to the extent that the arrest was unlawful. In support of her appeal and these grounds, the appellant has submitted a lengthy Skeleton Argument dated the 10 June 2018 (appeal bundle 1 page 27) and a more focused Skeleton Argument, dated 15 October 2018, by Mr Sheppard of Counsel. The respondent has submitted a Skeleton Argument, dated 5 October 2018, by her Counsel Mr Clemens.

Factual background

3. The appellant is a former psychiatrist who, since ceasing to practice, has become a journalist concentrating on "whistle blower" issues within such organisations as the National Health Service. She has written publicly upon patient safety in the context of whistle blowing and was a contributor to a website, World Medical Times. In 2011 a dispute developed between the appellant and AB who is a barrister, journalist and internet blogger. The cause of the dispute is not relevant but it led to a series of email allegations and counter-allegations between the appellant and AB. On the 24 July 2011, after a complaint by AB to the police, a Prevention of Harassment Letter was sent to the appellant by the respondent. This letter, referred to at trial as a Police Information Notice ("PIN") informed the appellant that an allegation of harassment had been made against her. The details of the allegation were "you have been constantly emailing AB and he has asked you to stop sending the emails as he is feeling harassed by their content". The PIN included the terms of section 1 of the Protection from Harassment Act 1997 and emphasised the importance of the Notice. Of itself, this document had no legal effect, in that it did not comprise criminal proceedings, but was meant to operate as a warning. Until 2014 it had its desired effect because there was no further email correspondence between the appellant and AB.
4. On the 1 July 2014 the appellant wrote an article on the website, World Medical Times, which expressly referred to AB. The article provided a link to disciplinary proceedings against AB and included comment widely about him. AB responded in an email on the 30 July 2014. On the 1 August 2014 the West Midlands police served a PIN upon AB, after a complaint by the appellant. On the 7 November 2014 AB complained again to the police who, at that stage took no additional action. On the 23 November 2014 the appellant published a number of messages on the Twitter social website which made an obvious reference to AB. On the 9 December 2014 AB complained again to the police about the contents of the article and the tweets. On the 9 December AB provided a detailed written statement to the police in which he described more fully his account of what had happened between himself and the appellant and the nature of his complaint. The truth and accuracy of the contents of that statement were in dispute in the later trial.
5. On the 18 December 2014 two police officers, PC Bharj and PC Brundrit, drove from London to the appellant's home address in Birmingham, where the appellant was arrested, handcuffed, and driven to Stoke Newington Police Station in London. She was received into custody and, when interviewed under police caution, declined to answer questions save to the extent that she provided a prepared statement. The decision to arrest, to handcuff and to drive the appellant to Stoke Newington was at the heart of the appellant's claim against the respondent. She was detained in custody for seven hours before being released on police bail. There were three conditions to her bail, one of which was that she should "not…post any messages or any form of media relating to AB, either inferred or by direct reference". On the 22 January 2015 when the appellant returned to the police station, she was formally charged with an offence of harassment, contrary to section 2 of the Protection from Harassment Act 1997. She was further bailed and on the same conditions, to the Thames Magistrates' Court. On the 3 March 2015 she entered a plea of not guilty. The magistrates then renewed her bail on the same conditions. The Crown Prosecution Service subsequently served a Notice of Discontinuance of the criminal proceedings in August 2015, and, on the 8 August 2015, the proceedings were withdrawn and an order for costs was made in favour of the appellant.
6. In the appellant's proceedings against the respondent she raised a number of different claims. Principally she contended that her arrest was unlawful and constituted a false imprisonment. She claimed that the criminal proceedings against her were the subject of a malicious prosecution; the use of handcuffs was unlawful; she contended that her right to freedom of expression under Article 10 of the EHCR, had been breached. All of the appellant's claims were denied by the respondent.

The appellant's grounds of appeal and submissions

Unlawful arrest

7. The appellant submits that the judge wrongly concluded that the arresting officer, PC Bharj, had a reasonably founded suspicion that the offence of harassment had been committed. It is contended that the error arose from the judge's failure to apply the correct test for harassment in the context of speech. Further, the appellant contends that the judge misread the evidence or otherwise made findings that were inconsistent or not supported by the evidence. It is argued that a charge of harassment involving speech or publication requires a careful assessment, given the Article 10 rights to freedom of expression; that the judge did not expressly take this into account but rather accepted too readily that AB's complaint was sufficiently serious to be categorised as criminal conduct.
8. It is also argued that the judge gave insufficient weight to inconsistencies of evidence between the two police officers and did not appreciate that, contrary to the evidence of the police officers, a PIN had been served upon AB in 2014 [appeal bundle 1 page 198]. It is submitted that the judge failed to analyse in any detail, the contents of the article and the tweets to assess whether they were sufficiently serious so as to be capable of being conduct of harassment. The appellant criticises the judge in reaching his conclusions without having looked more critically at the evidence alleged to have comprised harassment.
9. Further, it is argued that the judge, in finding against the appellant upon the claim for assault, wrongly concluded that there was subjective and objective justification for the necessity to arrest and, then to restrain the appellant, whom it is argued was compliant at all material times.

Article 10 rights

10. The appellant submits that when she was arrested and detained, there was an interference with her Article 10 right of expression because she felt frightened and inhibited once she was released on bail to continue in her work as a journalist. Further, the condition of her bail prevented her from acting as a journalist and was in further breach of her Article 10 rights. Any interference of her rights under Article 10 was, it is argued disproportionate and, therefore, unlawful.

Claim for Assault

11. This claim is confined to the consequences of an unlawful arrest. Should the appellant succeed upon that contention then any further contact thereafter would comprise an assault.

The respondent's submissions

Unlawful arrest

12. The respondent contends that the judge carefully assessed the evidence and was best placed to assess the accuracy and reliability of witness evidence. It is contended that the findings made by the judge, that the arrest was based on honest and objectively reasonable grounds of suspicion of harassment were objectively justified. Further, on the evidence, the judge correctly found that the use of handcuffs to restrain the appellant was reasonable and proportionate.

Article 10 rights

13. The respondent submits that the fact of arrest and of a seven-hour period of detention does not engage Article 10 or, put more accurately, does not raise any argument of interference with Article 10. To the extent that one of the bail conditions prevented the appellant from any communication directly or indirectly with AB and, of itself, might have breached the appellant's Article 10 rights, it was justified and proportionate under Article 10(2). Although not mentioned by the respondent, it might also be observed that the respondent was responsible for imposing the bail conditions only until the first appearance at the magistrates' court on the 3 March 2015, after which conditions of bail were a judicial decision.

Claim for Assault

14. The respondent argues that the arrest was lawful and therefore anything that followed was both reasonable and proportionate, both at the scene and in the journey to the police station. It is submitted by the respondent that the judge correctly applied the law and was entitled to find, on the evidence, that there was no assault.

The Legal Framework

15. The offence of harassment is created by section 2 of the Protection from Harassment Act 1997. By section 1 it provides –

"1. Prohibition of harassment.

(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.

…

(2) For the purposes of this section, 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."

…

7. Interpretation of this group of sections.

(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

…

(3) "Conduct" includes speech."

Although harassment is not defined under the Act it includes causing alarm or distress – see Worthington v Metropolitan Housing Trust Ltd [2018] EWCA Civ 1125 at para 4. Further, in Majrowski v Guys and St Thomas' NHS Trust [2006] UKHL 34 Lord Nicholls said at paragraph 30: –

"where…the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2."

The burden is on the respondent to prove that the arrest was lawful. The respondent must satisfy the court on the balance of probability that the arresting officer had an honest and reasonably founded suspicion that the appellant had committed the offence of harassment and that the arrest was necessary. The court is required to have in mind the relevant questions, which assess both the subjective and objective justification for the suspicion that an offence had been committed, that it was the appellant who had committed it, that it was necessary to arrest the appellant, and that the officer rationally decided to arrest the appellant – see Parker v Chief Constable Essex Police [2017] EWHC 2140 at paragraph 14 per Stuart-Smith J.

16. In relation to the right to freedom of expression, Article 10 of the ECHR provides: –

"(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…

(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…for the prevention of disorder or crime".

17. Whilst under section 7(4) of the Protection from Harassment Act 1997 it expressly provides for conduct to include speech, care has to be taken to balance the public interest in preventing disorder and crime against the Article 10 rights of expression of the speaker. To some extent this is reflected within section 1(2) of the Protection from Harassment Act 1997 which, in assessing whether the conduct amounts to harassment of another, that "a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other". This underlines the importance of an objective assessment. Further, in Hourani v Alistair Thomson & Ors [2017] EWHC 432 at paragraph 141 per Warby J: –

"141.The reference to an "objective standpoint" is important, not least when it comes to cases such as the present, where the complaint is of harassment by publication. In any such case the Court must be alive to the fact that the claim engages Article 10 of the Convention…The statute must be interpreted and applied compatibly with the right to freedom of expression, which must be given its due importance

…

142.The Court's assessment of whether conduct crosses "the boundary from the regrettable to the unacceptable" needs to be conducted with care in cases such as this, for several well-established reasons. Among them are that freedom of expression."

Accordingly, the emphasis is for care to be taken when assessing whether speech or publication may amount to harassment against another, reflected in both Article 10(1) and its qualification in Article 10(2).

The approach of this court on appeal

18. This court must approach the appeal on the basis that it is not a re-hearing. It is not a venue for either party to repeat their evidence and contend that the judge was wrong simply because he or she did not agree with one party or the other. In AEI Rediffusion Music Limited v Phonographic Performance Limited [1999] 1 WLR 1507 CA at page 1523 the test was succinctly stated: –

"Before the court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale."

19. Further, in the case of Lewis v Narayanasamy [2017] EWCA Civ 229 at page 54, per Sir Colin Rimer:–

"It is trite that appeals against a trial judge's findings of fact present the appellant with a high hurdle. That is not to say that they can never succeed. They can succeed, although it will at least require the appellant to show that the judge misdirected himself as to the facts in a plain, obvious and material way. There has, however, been repeated discouragement at the highest judicial levels of any disposition on the part of an appellate court to overturn a trial judge's findings of fact".

Discussion

Unlawful Arrest

20. It was accepted by the appellant that the finding of an honest subjective suspicion of an offence cannot be challenged. The appellant submitted in oral argument that the objective justification for the suspicion, however, was flawed both as to the test applied and the evidence relied upon by the Judge. It was submitted that the Judge failed to set out the ingredients of the offence of harassment, so as to turn his mind to whether there was reasonable suspicion based on those ingredients. Further, that the Judge did not appear to appreciate the difference in speech harassment, between speech about a victim and speech to a victim. It was accepted that this was not a point that was made before the trial judge.
21. The requirement to objectively assess the honest suspicion of an offence being committed by the appellant is clear and has recently been restated - see Parker v Chief constable of Essex [2017] EWHC 2140 at paragraph 14. Whilst there is no definition of harassment under the 1997 Act, the conduct must amount to harassment of another and must be also be known to be so by the person charged or that they ought to know – see section 1(1) of the Act. In Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224 Lord Nicholls drew the distinction between the unattractive, even unreasonable, and conduct which is oppressive and unacceptable. Further, in Hayes v Willoughby [2013] UKSC 17; [2013] 1 WLR 935 Lord Sumption JSC added that harassment is –

"a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress".

22. The judge, in reaching his conclusion that there was sufficient evidence for an objectively justified honest suspicion of an offence of harassment having been committed, did so, on the basis of the evidence in the trial. He heard the police officers, and also read the written material, including a signed statement from the complainant. It was this written material that was in the possession of the police when the decision to arrest was made. Whilst the appellant has submitted that the evidence did not amount to sufficient material to objectively justify the suspicion of an offence, this is a challenge to a finding of fact by the judge. The contention that the judge did not draw the distinction between written words speaking directly to, rather than about, the complainant, is not that he fell into an error of law or fact. The judge was plainly aware of the fact that the article and tweets written by the appellant were about the complainant, rather than being in direct communication with him; that was obvious. The real question for the judge was whether the written words, made in the Article on a website controlled by the appellant and Twitter messages in social media, amounted to harassment. On that issue the judge clearly considered all the evidence and concluded that there was sufficient to create an objectively justified suspicion. There is no basis for arguing that the judge in some way failed to have in mind the elements of the offence of harassment in accordance with the authorities above.
23. However, the appellant also argued that the evidence relied on to make the finding of objective justification was inadequate, so as to mean that this court should set it aside. The judge identified four strands of evidence, although in reality there were three, because the fourth appears to be an observation rather than evidence. The first strand was the article and the tweets themselves, which he found were capable of causing harassment to the complainant. They appeared to challenge the integrity and honesty of the complainant with allegedly false accusations which were repeated and were either expressly about him, or obliquely but obviously about him. The second strand was the written material provided by the complainant to the police, including his signed statement, which made clear that from his point of view the material was oppressive and unacceptable. Within his statement the complainant denied that he had been given a police notice relating to his potential harassment of the appellant. This later proved to have been incorrect. However, this was not fundamental to the judge's finding. The third strand was the content of the police record of the inquiry (the CRIS report), which did not record the reasons for arrest. The report was not bound to contain the reasons for arrest, but it might have done. The judge found as a fact, having heard the evidence of the police officers, that there had been a discussion between them when the decision was made to arrest. This was not a decision made by an officer alone.
24. Based on these three strands of evidence, the judge reached the conclusion that the honest suspicion of the arresting officer, that the appellant had committed an offence of harassment, was objectively justified. That was a finding he was entitled to make on the evidence. The appellant's submissions before this court were based on a complaint that the judge should have looked far more critically at the evidence and analysed it before reaching the conclusion that the arrest was lawful. The judge, however, correctly reminded himself that the test was whether the honestly held suspicion was objectively reasonable. Having applied that test he was entitled to find as he did.
25. It was also submitted by the appellant that the judge needed to be satisfied that the necessity to arrest was objectively justified. It was argued that there was evidence that at an earlier time, in 2011, the appellant had made it clear to the police that she would attend upon them voluntarily. This, it was said, should have been given greater weight, such that an arrest was not necessary in 2014. The respondent relied on the audio recorded evidence of the arrest, as well as the evidence of the two police officers. This demonstrated, as the judge found, that the appellant was not compliant. I am satisfied that the judge was entitled, after hearing the evidence at trial, to make the finding that the arrest was for reasons that were objectively justified. There is no basis to disturb that finding.
26. Accordingly, I do not find that the judge wrongly concluded that the arrest was lawful such that this ground of appeal fails.

Article 10

27. It was submitted by the appellant that, contrary to the judge's finding, Article 10 was engaged when she was arrested. Although the judge found as a fact that at the precise time that the arrest took place, she was not seeking to exercise her freedom of expression, it was argued that the decision to arrest her was based on her exercising her right to do so. Further, it was argued that the judge's reliance on SXH v Crown Prosecution Service [2017] UKSC 30; 1 WLR 1401, did not support the proposition that Article 10 was not engaged in this case. The respondent submitted that the judge was entitled to find in this case that the arrest was lawful and, therefore, Article 10 was not engaged.
28. When considering the issue of Article 10 and deciding that it was not engaged, in my judgement the judge was saying that on the facts of this case there was no Article 10 breach. The appellant, like all citizens, enjoys the qualified right to freedom of expression within Article 10, whether as a journalist or as an ordinary citizen. Equally, the respondent, as a public authority, must act in compliance with the EHCR when dealing with any citizen – section 7, Human Rights Act 1998. The judge decided that having found that the arrest was lawful, based on a reasonable and probable cause, it was not a breach of the appellant's Article 10 right to arrest her. In SXH v Crown Prosecution Service, the Supreme Court was dealing with a claimed Article 8 breach in circumstances where the prosecuting authority had reasonable cause to prosecute the citizen. In rejecting that submission Lord Toulson stated at paragraph 34:-

"The difficulty for the appellant advancing the claim that the decision to prosecute her was a violation of her human rights is that it is accepted that the offence under section 25 is compliant with her Convention rights, and it is conceded in the courts below that the CPS was reasonably entitled to conclude at the time of the decision to prosecute that the evidential test was satisfied. It is difficult to envisage circumstances in which the initiation of a prosecution against a person reasonably suspected of committing a criminal offence could itself be s breach of that person's human rights"

29. The judge in relying on SXH v Crown prosecution Service, correctly identified the point, that where there was a lawful arrest it is difficult to conceive of circumstances that could give rise to an Article 10 breach. Indeed, it is a qualified right which, subject to prescribed law and necessity in a democratic society, may be restricted or subject to penalty for the prevention of disorder or crime – Article 10(2). It was not argued before the judge, nor before this court on appeal, that an offence under section 2 of the Protection from Harassment Act 1997 is not Convention compliant. Accordingly, having found that the arrest was lawful, the judge was correct to find no arguable claim that the appellant's Article 10 right had been breached by her lawful arrest. The judge also found as a fact on the evidence that the arrest and charge of the appellant did not curtail or prevent the exercise by the appellant of her Convention right.
30. Before this court the appellant refined her argument under Article 10. It was submitted that before the decision to arrest could be made, even when there was an honest belief that the appellant had committed an offence under section 2 of the 1997 Act, the requirement that it be based on objectively reasonable grounds brought in the requirement to consider her Article 10 rights. It was submitted that the judge did not consider this in his judgment.
31. I am not persuaded that Article 10 has no relevance when the honest belief in grounds to arrest are considered objectively. If that were to be correct then it would mean that even in the most obvious cases, where a freedom of expression is being exercised and a decision to arrest is made, that Article 10 would still be irrelevant. That cannot be correct. However, far from the judge not having considered Article 10 as part of the objective justification, it was explored in evidence at trial. During cross examination of the arresting officer, PC Bharj, she was questioned whether she had considered the appellant's Article 10 rights when forming her honest and reasonable suspicion. In evidence she confirmed that she had. This was accepted by the judge and was a clear finding of fact on the evidence. It was not argued on behalf of the appellant that it was not open to the judge to make such a finding.
32. Accordingly, I do not find that the judge was wrong to conclude that Article 10 was not engaged, in the sense that it was breached by the arrest of the appellant. Therefore this ground of appeal fails.
33. Before turning to the next ground, during this appeal I raised with the appellant whether the conditions of bail, from the point of release from the police station until appearing at the Magistrates Court for the first hearing, was raised as an Article 10 breach. Although this was not expressly pleaded by the appellant, Mr Sheppard stated that it remained as an argument but which he did not press firmly. In my judgement this point can be dealt with shortly. Once the judge found that the arrest was lawful the imposition of conditions of bail were proportionate, to hold the ring until the court made a decision as to bail. If there was any interference with the appellant's Article 10 rights in the meantime, it was a proportionate and temporary interference, as the judge found. It does not succeed as a separate ground of appeal.

Assault

34. Leave to appeal on this ground was granted because it was arguable that the appellant had been assaulted in the course of the arrest. However, it was conceded on behalf of the appellant that it was consequential on the challenge to the lawfulness of arrest: if the arrest was lawful it does not succeed as a ground of appeal and falls away. Accordingly, after finding that the challenge to the lawfulness of the arrest fails as a ground of appeal, so too does this ground. Finally, it is not argued that the use of restraint by handcuffs is a stand-alone submission and so does not need to be considered further.

Conclusion

35. The judge was entitled to find on the evidence that he heard at trial that the arrest of the appellant was lawful and he was correct to do so. There was no arguable breach of the appellant's Article 10 Convention rights when she was arrested; nor was there any actionable assault. In these circumstances this appeal is dismissed.
36. I invite the parties to agree a form of Order and to submit the same to the Court for approval, failing which I will receive further submissions in writing.