Astellas Pharma Ltd & Ors v Stop Huntingdon Animal Cruelty (SHAC) & Ors [2011] EWCA Civ 752

[2011] EWCA Civ 752Case No A2/2010/1552-1555
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(Mr. D. Pittaway Q.C.)
HQ03X02622, 2623, 2624 & 2625
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/06/2011
Before
LORD JUSTICE WARDLORD JUSTICE MOORE-BICKLORD JUSTICE RIMER
Between
ASTELLAS PHARMA LTDClaimants/and othersAppellantsSTOP HUNTINGDON ANIMAL CRUELTYDefendants/and othersRespondents
Mr. Tim Lawson-Cruttenden (solicitor-advocate) (instructed by Lawson-Cruttenden & Co) for appellants for The respondents did not appear and were not representedHearing Hearing dates : 7 th March 2011
Judgment

Background

[1]These appeals arise out of attempts by a number of companies engaged in or in some way related to the pharmaceutical industry to control the activities of animal rights protestors by means of injunctions obtained under the Protection from Harassment Act 1997. They all raise the same issue and a similar procedural history. It is therefore convenient for the purposes of this judgment to refer simply to the first of the four cases, Astellas Pharma v SHAC, on the understanding that the position is for all practical purposes the same in relation to the others.[2]The proceedings were started in August 2003 when a claim form was issued naming Stop Huntingdon Animal Cruelty (“SHAC”), Animal Liberation Front (“ALF”) and three individuals as defendants. In June 2004 they were stayed pending a decision in similar proceedings brought against SHAC by Huntingdon Life Sciences and further stayed in November 2007 pending a decision in other similar proceedings brought against animal rights campaigners by Oxford University. Following the disposal of those proceedings the stay was lifted and an application was made for summary judgment.[3]SHAC and ALF are both unincorporated associations and since they have no juridical personality cannot be parties to proceedings. However, on 17th December 2007 Irwin J. ordered that Dr. Max Gastone and Mr. Robin Webb be joined as a defendants to represent the members of SHAC and ALF respectively pursuant to CPR rule 19.6, subject to the determination in the proceedings brought by Oxford University of the question whether ALF was in fact an unincorporated association and, if so, whether Mr. Webb was an appropriate person to represent its members. In the event, however, the Oxford University proceedings were terminated by a consent order in October 2009 without those questions being decided and these actions have proceeded since then on the basis that Mr. Webb represents the members of ALF. The position is the same in each of the other cases: Dr. Gastone and Mr. Webb are personal defendants and also act in representative capacities.[4]On 16th March 2010 Mr. David Pittaway Q.C. sitting as a Deputy High Court Judge gave summary judgment for the appellants and stood the matter over for further submissions to be made about the appropriate form of order. The appellants sought an order restraining various persons identified in the draft submitted to the court as “Protestors” from pursuing a course of conduct amounting to the harassment of various people described as “Protected Persons”. Since the action against SHAC and ALF was proceeding as a representative action, the appellants asked the judge to include in the order a paragraph directing that it be enforceable against all Protestors as defined in it. The court’s permission was necessary before it could be enforced against represented parties because rule 19.6(4) provides:
“Unless the court otherwise directs any judgment or order given in a claim in which a party is acting as a representative under this rule – (a) is binding on all persons represented in the claim; but (b) may only be enforced by or against a person who is not a party to the claim with the permission of the court.”
[5]The judge made an order in the very wide terms sought by the appellants restraining the Protestors from harassing the Protected Persons, from demonstrating within 100 yards of their homes or any premises occupied by them and from conducting protests in certain specified areas. It is unnecessary for present purposes to refer to the detailed provisions of the order; its purpose was to prevent the Protestors from intimidating the appellants’ employees and others who had dealings with them. However, the judge declined to give permission to enforce the order against all Protestors because he considered that it would be unjust to make an order against unidentified persons without giving them an opportunity to be heard and without giving some consideration to their individual circumstances. In doing so, he followed the decision of Teare J. in SmithKline Beecham Plc v Greg Avery [2007] EWHC 948 (QB). It is against the Deputy Judge’s refusal to include the additional paragraph in the order that the appeal is brought. The Protection from Harassment Act 1997[6]Before going any farther it is necessary to refer to some of the provisions of the Protection from Harassment Act 1997. The statute prohibits a person from pursuing a course of conduct which he knows or ought to know amounts to harassment of another. Remedies may be obtained in civil proceedings in the form of damages and an injunction. Harassment itself is also a criminal offence punishable on summary conviction by imprisonment for up to six months: see section 2; and the breach of an injunction restraining harassment, which is a separate offence, is punishable on indictment with a maximum of five years’ imprisonment: see sections 3, subsections (6) and (9).[7]When the statute was enacted it applied only to simple harassment by one person of another, but the legislation was amended by the Serious Organised Crime and Police Act 2005 by the addition of subsection 1(1A) which prohibits the harassment of two or more persons with a view to persuading a third person to act or refrain from acting in a particular way. The proceedings in the present case were brought under that subsection, one purpose of which was to prohibit the harassment of employees or members of their families or others in order to put pressure on a third party.[8]Section 1(1A) provides as follows:
“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.” (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.”
[9]Section 3A (also introduced by the Serious Organised Crime and Police Act 2005) gives the court power to grant an injunction where there is an actual or apprehended breach of section 1(1A). It provides as follows:
“(1) This section applies where there is an actual or apprehended breach of section 1(1A) by any person (“the relevant person”). (2) In such a case— (a) any person who is or may be a victim of the course of conduct in question, or (b) any person who is or may be a person falling within section 1(1A)(c), may apply to the High Court or a county court for an injunction restraining the relevant person from pursuing any conduct which amounts to harassment in relation to any person or persons mentioned or described in the injunction.

(a) ”

[10]Section 3(3)(a) gives the claimant the right to apply for a warrant of arrest if he considers that the defendant has done something which he is prohibited from doing by an injunction granted for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment under the Act.[11]Section 3(6) provides as follows:
“Where— (a) the High Court or a county court grants an injunction for the purpose mentioned in subsection (3)(a), and (b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction, he is guilty of an offence.” he is guilty of an offence.”
[12]Finally, it is necessary to mention section 24 of the Police and Criminal Evidence Act 1984, which gives a constable power to arrest without a warrant any person whom he considers to be committing, or whom he suspects to be about to commit, an offence where it is necessary to do so for various reasons, including to allow the prompt and effective investigation of the offence or of the conduct of the person in question. The Appeals[13]Before the judge submissions were made as to the manner in which the injunction could be enforced and against whom. For practical reasons the appellants are concerned to ensure that the police, whose responsibility it is in the interests of public order to supervise and control demonstrations of the kind contemplated by the injunction, are able to enforce it by exercising their power of arrest in respect of an offence under section 3(6) of the Act. It was for that reason, apparently, that the appellants sought the court’s permission to enforce the orders against all Protestors. In fact, the relief they sought went rather wider than that, because the paragraph which they asked the judge to include in the order read:
“This Order is enforceable against all Defendants and Protestors under section 3(6) Protection from Harassment Act 1997. ”
As can be seen, it goes beyond merely giving permission to enforce the order and for practical purposes amounts to a declaration that any breach of it by any person who falls within the definition of “Protestors” constitutes a criminal offence under section 3(6) of the Act.[14]The term “Protestors” as used in these orders is very broadly defined. It includes not only the defendants themselves and those acting in concert with them who have notice of the terms of the orders, but also “any other person who is protesting against - the conduct of experimentation on live animals by Huntingdon Life Sciences or the Astellas Group; [or] - the business relationship between the Astellas Group and any animal research organisation . . . ” whether he or she has notice of the order or not.[15]The width of the order seems to have been the main factor that led the judge to refuse the appellants’ application to include the additional paragraph mentioned above or to give permission to enforce them against Protestors in general. In response to a submission from Mr. Lawson-Cruttenden that any person bound by the decision was to be regarded as a “defendant” for the purposes of section 3(6) of the Act the judge pointed out that rule 19.6 makes a clear distinction between an order’s being binding on a person who is not a party to the proceedings and its being enforceable against him. He adopted the view said to have been expressed by Teare J. in SmithKline Beecham v Greg Avery [2007] EWHC 948 (QB) that the position in relation to enforceability was the same, whether the process to be adopted was civil or criminal.[16]Mr. Lawson-Cruttenden submitted that on the correct interpretation of sections 3A and 3(6) of the Act the expression “the defendant” in section 3(6) includes any “relevant person” mentioned in section 3A(2) and that since all Protestors are “relevant persons”, they are necessarily also defendants for the purposes of that section. In my view, however, that is not right. Section 3A(1) simply gives a victim of an actual or apprehended course of conduct falling within section 1(1A), or a third party at whom such conduct is ultimately directed, the right to apply to the court for an injunction to restrain the person in question (“the relevant person”) from engaging in or continuing to engage in that course of conduct. The statute naturally envisages that that person will be identifiable and will therefore be a defendant to the claim for an injunction. Section 3(6) applies in such a case in the same way as in the case of simple harassment contrary to section 1(1). In my view the reference to “the relevant person” in section 3A(1) has nothing to do with the correct interpretation of the word “defendant” in section 3(6).[17]I think the judge somewhat overstated the position adopted by Teare J. in SmithKline Beecham v Greg Avery. Having recognised the concern of the claimant to clarify scope of section 3(6), he declined to meet it by giving permission under rule 19.6 to enforce the injunction against unnamed persons without their individual circumstances having been considered by the court. However, he recognised that there might be other ways in which that concern might be met. He said:
“The injunction is certainly binding on those who fall within the class of person represented by the First Defendant. It may be that that enables such persons to be regarded as “defendants” for the purposes of the Act (applying a broad and purposive construction of the Act) and that an arrest may be regarded not as part of the process of enforcement (prosecution and conviction) but as a preparation for that process. But is not appropriate for me to determine whether or not the Claimants’ concerns can be met in this way assuming a hypothetical case and without hearing submissions from the prosecuting authority and the defendant in that prosecution.”
[18]That encapsulates the appellants’ difficulty in this case. Mr. Lawson-Cruttenden submitted that the judge should have included the additional paragraph in the order, or should at least have given them permission to enforce the order against the Protestors in general, in order to dispel any doubt about the right of the police to exercise their powers of arrest in relation to an offence under section 3(6). That, of course, turned in part on the meaning of “the defendant” as used in that subsection, but the meaning of section 3(6) was not in issue before the judge. The only question he had to decide was whether in the exercise of his discretion he should include the additional paragraph in the order or otherwise give the appellants permission to enforce it against all Protestors. His observation that a grant of permission was required to enable the order to be enforced by civil or criminal process (including by the exercise of a power of arrest) was at best obiter and is not a decision against which an appeal lies.[19]Whether the word “defendant” in section 3(6) of the Act includes a person who is bound by an order made in representative proceedings, despite the court’s refusal to give permission for it to be enforced against him, is one that may arise for decision in other proceedings, probably of a criminal nature. There is clearly quite a strong argument for saying not only that the word “defendant” has a clearly established meaning of its own but also that because section 3(6) is penal in nature it ought to be construed narrowly. If that is right, it would be necessary for the court to order that an individual protestor be joined as a defendant to the action in order to bring him within the reach of that subsection. However, as Teare J. pointed out in SmithKline Beecham v Greg Avery, it is possible that the section might be given a broader interpretation in order to achieve the purposes of the legislation. Mr. Lawson-Cruttenden made it clear that one of the purposes of bringing this appeal was to obtain an authoritative decision on the interpretation of section 3(6), but the issue does not arise on these appeals and like Teare J. I prefer not to express a concluded opinion on it. However, the judge assumed that a protestor would, or at any rate might, fall within section 3(6) if the court had given permission under rule 19.6(4)(b) for the order to be enforced against him, so it cannot be said that it was a matter which he failed to take into account when exercising his discretion.[20]The nearest that Mr. Lawson-Cruttenden came to identifying an error on the judge’s part was in his submission that these orders were likely to be of little practical value to the appellants if he did not do all in his power to ensure that they could be effectively enforced by the police using their powers of arrest. I have some sympathy with the appellants on this score because intimidation by animal rights protestors is a very real threat which has proved difficult to control. However, against that the judge had to balance the potential injustice to unidentified protestors of giving permission to enforce the orders against them, possibly by criminal process, without considering their individual circumstances. The judge was well aware, as were judges in previous similar cases, of the difficulties facing organisations in the position of the appellants, but the main sticking point in this as in other cases proved to be the extreme width of the order. In my view the judge was entitled to reach the conclusion that it was not appropriate or in the interests of justice either to include in his order the additional paragraph sought by the appellants or to give permission to enforce the order against persons who were unidentified at the time and who might not have become aware of its terms when they committed the acts which would amount to a breach of it.[21]By way of an alternative argument Mr. Lawson-Cruttenden submitted that by naming SHAC and ALF as defendants the appellants were in fact bringing proceedings against all members of those organisations, who were sufficiently identified by the fact of their membership, and that it would be anomalous to draw a distinction between those who are formally defendants and those who, although not defendants, are nonetheless bound by the order. In support of that submission he relied on the decision of Sir Andrew Morritt V-C. in Bloomsbury Publishing Group Ltd v News Group Newspapers Ltd [2003] EWHC 1205 (Ch).[22]In my view that argument cannot succeed in the present case. Rule 19.6(4) draws a distinction between those who are defendants and those who are not and Irwin J.’s order makes it quite clear that the proceedings in this case were to continue as representative proceedings. It does not seem to have occurred to anyone at the time that order was made that individual members of SHAC and ALF might already be parties to the action and the order is inconsistent with that being the case. I doubt very much whether it is possible to join as defendants all current members of an unincorporated association simply by naming the association itself as a defendant, but in any event the argument does not advance matters as far as the present appeals are concerned. The submission was made partly in an attempt to obtain from this court a decision that all those who are described as Protestors in the order are amenable to prosecution under section 3(6) of the Act because they are defendants. That was not an issue before the judge and is not an issue that arises on the appeal, but the argument must fail in any event for the reasons I have just given.[23]Finally, if all else failed, Mr. Lawson-Cruttenden applied to join as defendants unknown persons falling within the definition of Protestors. The application was made very much as an afterthought and was not fully argued. It raises difficult questions of law and I do not think that it would be right for this court to entertain it on appeal. If such an application is to be made, it must, in my view, be made to the High Court.[24]For all these reasons I would dismiss these appeals.[25]I agree.[26]The claimant companies are engaged in the business of the marketing, sales and distribution of pharmaceutical medicines. Live animals may be used in the course of some research programmes conducted by the pharmaceutical industry. The unincorporated associations, Stop Huntingdon Animal Cruelty (“SHAC”) and the Animal Liberation Front (“ALF”) are vociferous protestors against such use. SHAC and ALF were named as defendants represented by Dr Max Gastone and Mr Robin Webb respectively “for and on behalf of its members, participants or supporters and all Protestors (as defined) conducting criminal, tortious or unlawful activities against the claimants pursuant to CPR 19.6”, taking this description of the defendants from the title of the action as it is set out in the order for the injunction under appeal.[27]Protests are tightly controlled by the restraints placed upon them by the terms of this injunction. Despite that control the appellants fear that protest may exceed the permitted bounds and the appellants wish to be able to call on the police for an immediate response to preserve the peace of those who enjoy the protection of the injunction. The appellants hope that the police will arrest and remove unruly protestors.[28]Section 3(6) of the Protection of Harassment Act 1997 provides as follows:
“Where – (a) the High Court or a County Court grants an injunction for the purpose mentioned in subsection 3(a)” [namely for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment], “and (b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction, he is guilty of an offence.”
Section 3(6)(a) is satisfied by the injunction which has been granted, but for section 3(6)(b) to be established, it would have to be shown that the suspected offender is doing something which he is prohibited from doing by the injunction and also, and more relevantly for the purposes of this appeal, that he is in fact a defendant in the injunction proceedings. (a) the High Court or a County Court grants an injunction for the purpose mentioned in subsection 3(a)” [namely for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment], “and (b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction,[29]Section 24 of the Police and Criminal Evidence Act 1984, as it was amended by section 110 of the Organised Crime and Police Act 2005 (which also amended the Protection from Harassment Act 1997 in a way which enabled this injunction to be granted), empowers a constable to arrest without a warrant anyone who is about to commit an offence if the constable has reasonable grounds for believing that it is necessary to arrest the person in question for a given reason, among others to allow prompt and effective investigation of the offence and the conduct of the person in question. The prompt arrest of an errant protester is a swift and efficient form of protection from the harassment and is a means capable of alleviating much suffering for those who have personally borne the burden of protests going beyond the bounds of what is acceptable. Consequently the appellants are anxious that the police, who will be called upon to monitor any protest, should be free from doubt about the ambit of their powers and should be free without fear of challenge to arrest anyone reasonably believed to be committing the offence under section 3(6) above.[30]To that end the claimants sought an order on the final hearing of this injunction not only that, as in fact ordered in paragraph 7 of the[31]I am very sympathetic to the appellants and to the “Protected Persons” associated with the companies, such as their officers, employees and former employees, the employees of any contractor, sub-contractor or supplier to the companies, the families of those employees and indeed any visitor to the premises of the companies, all of whom fear the actions of the protestors. Those who are targeted by the animal rights activists can suffer grievously and where such wrong is done, the Court ought to provide the remedy. Nonetheless, I simply do not see how this Court can grant the relief which is sought in this appeal. Whereas I can see that it may be appropriate in special circumstances to declare that some activity is lawful, for example, a surgeon operating on a person lacking capacity to give consent (see In Re: F [1990] AC 1), I do not see how the Court of Appeal, Civil Division, can trespass on the fiefdom of the Court of Appeal, Criminal Division, and pronounce ex cathedra that some as yet unknown conduct is unlawful or, as a component of the offence under section 3(6), that an unknown defendant to a future criminal charge is a defendant in the injunction proceedings. The question of whether the actus reus of the offence is established must be reserved to the criminal court to decide having regard to the specific facts of the case before it.[32]As I have indicated, the judge, in the exercise of the power conferred by CPR 19.6(4)(a), did direct that the order, being one given in a claim which a party is acting as a representative under the Rule, is an order binding on all persons represented in the claim and by his direction that included the “Protestors” as they are defined in the order. (I confess I am not at all clear whether those represented by Messrs Gastone and Webb are limited to the members, participants in or supporters of the two unincorporated associations, SHAC and ALF, and whether it can properly be said that they also represent random protesters who share “the same interest” only because all are engaged in the harassment of the claimants.) What the judge did not do was to go on to make the further direction under CPR 19.6(4)(b) that the order was enforceable against a Protestor. Such a direction may not in any event help the appellants because it could be argued that as CPR 19.6(4)(b) provides that it should only be made “against a person who is not a party to the claim”, the person subject to it cannot be thought to be a defendant: ex hypothesi a defendant is a party.[33]I idly speculated during the course of the argument whether the appellants would be better advised to seek to amend the claim to join persons unknown as defendants. There was some discussions about this but the arguments were not fully developed.[34]It seems to me to raise interesting questions. In A.-G. v Newspaper Publishing Plc [1988] Ch 333, 369C the Master of the Rolls, Sir John Donaldson, pointed out:
“English civil courts act in personam. They adjudicate disputes between the parties to an action and make orders against those parties only. This is true even in proceedings under R.S.C., Ord. 113, which permits proceedings against “persons unknown.”
They become parties. What is not permissible is to make an order against a stranger to the action.” The jurisdiction to make orders against “persons unknown” was explored by the Vice-Chancellor, Sir Andrew Morritt in Bloomsbury Publishing Plc v News Group Ltd [2003] EWHC 1205 (Ch), [2003] 1 WLR 1633. Drawing support from the overriding objective set out in the Civil Procedure Rules and given the fact that there was a named defendant, he allowed the injunction against persons unknown saying in paragraph 21:
“The crucial point, as it seems to me, is that the description used must be sufficiently certain to identify both those who are included and those who are not. If that test is satisfied then it does not seem to me to matter that the description may apply to no one or to more than one person nor that there is no further element of subsequent identification whether by service or otherwise.”
The Vice-Chancellor made a similar order in Hampshire Waste Services Ltd v Persons Unknown [2003] EWHC 1738 (Ch), [2004] Env LR 9, a case involving protestors invading the sites of a number of incinerators owned by the claimant. In South Cambridgeshire D.C. v Persons Unknown [2004] EWCA Civ 1280, [2004] 4PLR 88, a case brought under section 187 B of the Town and Country Planning Act 1990, which expressly allows for injunctions to be granted against “a person whose identity is unknown to the applicant”, Bloomsbury Publishing and Hampshire Waste were cited by Brooke L.J. at paragraph 9 of his judgment as recent examples of the way in which the court had granted relief against persons unknown in other circumstances. He made no adverse comment on those decisions. Fulford J. made a similar order in Gate Gourmet London v Transport and General Workers Union & ors [2005] EWHC 1889 (QB) saying in paragraph 33:
“An injunction in such unspecific terms is unusual, but the courts undoubtedly have the power to make an order of this kind if the circumstances make it necessary. The court must particularly ensure the group of unknown persons is sufficiently clear to mean that those who are included and those who are not can be readily identified. I have no doubt that is the position here: persons unknown in this case refers only to people engaging in unlawful picketing and/or otherwise assaulting, threatening, intimidating, harassing, molesting or otherwise abusing the employees of Gate Gourmet or its associated companies.”
[35]Among the matters which will call for consideration by the Court is how to balance the conflict between the rights of the claimants under Article 8 of the EHCR calling for respect to their private life and home and the rights of the protesters to free expression under Article 10. Careful consideration may have to be given to the exact description of the persons unknown and precisely what activities are covered by the order to distinguish that from lawful protest. An interesting example of dealing with mass protest - in that case hundreds of people blocking a bridge – is McMillan Bloedel Ltd v Simpson [1996] 2 SCR 1084, a decision of the Supreme Court of Canada. There safeguards were incorporated requiring that before the protesters were arrested they were to be provided with a copy of the order and the terms of the order read to them. They were then given the opportunity to comply with the order and only if they did not were they arrested. These cases show that difficult issues arise from seeking to join unknown defendants and to enforce injunctions against them.[36]For those reasons I prefer to express no concluded view as to whether or not a properly made application to amend should succeed. The issues may be difficult enough and may be of sufficient public importance to justify a friend of the court to assist in that decision. It is not one which should be taken by this Court without full argument. It is a matter which should first be considered by the High Court.[37]Consequently I agree with Moore-Bick L.J. that the appeal should be dismissed.

order

“This order is binding on all Defendants and Protesters pursuant to CPR 19.6(4)(a)”, but also that: “This order is enforceable against all Defendants and Protesters under section 3(6) Protection from Harassment Act 1997.” Mr David Pittaway Q.C. refused to make that further order: hence this appeal.

Cited in 4 later judgments