Oxford University v Webb [2006] EWHC 2490 (QB)

Case No HQ04X02793[2006] EWHC 2490 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 13 th October 2006
Before
THE HON MR JUSTICE IRWIN
Between
Oxford UniversityClaimantMr Robin Webb (10 th Defendant)Defendant
Tim Lawson-Cruttenden (instructed by Lawson-Cruttenden & Co) for ClaimantMs Stephanie Harrison and Ms Victoria Vasey (instructed by Moss & Co Solicitors) for DefendantHearing Hearing dates: 20 – 22 September 2006
Judgment
[1]The claimants have for some years been attempting to build a Bio Medical Research Laboratory at South Park Road, Oxford. Since 2004, there has been a campaign to obstruct or prevent this project. It will be remembered that a similar project was abandoned by Cambridge University in recent years following a parallel campaign.[2]The main contractor for the construction of the research laboratory from inception was Walter Lilly, part of the Montpellier Group. Other contractors also included Bullock Construction, HTC, GETJAR and RMC. From the spring of 2004, all of these contractors were targeted in various ways. There were verbal and written threats, criminal damage of a serious kind, uninvited visits to the homes of directors of RMC and senior figures in the University. On 30 April 2004, RMC reported criminal damage to their property and vehicles costing in the region of £80,000. On the 1st July 2004 RMC reported that an attack with firebombs in late June had caused extensive damage to fixed property and vehicles. On 19 July 2004, Montpellier resigned its contract to build the research laboratory, stating that it could no longer fulfil its contractual obligations because of intimidation and harassment directed against its shareholders and directors. Following this a number of the sub-contractors also resigned, including RMC, HTC and GETJAR. The University was forced to stop construction work until new contractors and suppliers could be appointed.[3]The campaign continued even after the contractors resigned. It is not necessary to detail all of the story but it is important to record that there have been further serious arson attacks on University property, academics have had car tyres slashed, threatening letters have gone to members of the University and employees of the University. A good example is a letter sent on 11 November 2004 in the following terms:
“When will you sick animal abusing perverts learn? Your injunctions mean nothing to the Animal Liberation Front and the Animal Rights militia. Fanatics? you bet! We stop at NOTHING to achieve our goals. You are no match for us. Prepare for WAR sicko.”
Similar threats have been issued to companies employed by the University or supplying goods to the University. A great part of this activity has been done in the name of the Animal Liberation Front [“ALF”].[4]Following the July 2004 hiatus, the University succeeded in securing the services of replacement contractors, secret as to identity, with workers wearing identity-concealing balaclava helmets. These contractors started work on the site in the autumn of 2005. The campaign against them is continuing. As part of exhibit RM17/1, the chronology annexed to the twelfth witness statement of Rizwan Majid, Mr Robin Webb the respondent to this application is quoted as telling the Daily Telegraph on 25 February 2006 that “Oxford was now the focus of all animal rights activity, and that anyone associated with the University was a legitimate target”. Procedural history.[5]These proceedings were first issued on the 3 September 2004. The first substantive order in this case was made by Grigson J. on 10 November 2004. The tenth defendant recited in the action, and made subject of that order, was the Animal Liberation Front. Service of the order in relation to the tenth defendant was ordered in three complementary modes: by post to Robin Webb as press officer of the ALF, exhibition of the order on the boundaries of the exclusion zones then set up and an order that a copy of the order should be posted on the website of the tenth defendant. No point was taken at that stage that it was improper to join or serve the ALF.[6]On 6 March 2006, there was an ex parte hearing in front of Calvert Smith J. and amended particulars of claim were served. In the heading of amended particulars of claim, the tenth defendant is “Robin Webb sued on his own behalf and as representing all persons acting as members, participants or supporters or in the name of the unincorporated association known as the Animal Liberation Front (“ALF”)”. Paragraph 21 recites that:
“The Tenth Defendant is an unincorporated association known as or which operates under the name of the Animal Liberation Front (“ALF”). It is a criminal terrorist organisation which employs acts of violence and intimidation against persons connected with scientific research on animals. The identities of its members, participants and supporters is kept secret so as to facilitate criminal activity. Robin Webb who is held out as a spokesman for the ALF is sued on his own behalf and as representing members, participants and supporters of the (“ALF”).”
[7]There were further hearings and orders in this case from Holland J. The first order was on the 11 April and a further order on 24 May 2006. The latter order discharged the previous injunctions and set out detailed terms for the control of the protest and the management of demonstrations, as well as orders against unlawful activity. This order was varied and extended by me on 9 June 2006, principally to cover activity in Moreton-in-the Marsh.[8]The Defendant applied to set aside the Order of Calvert-Smith J made against him as representative of the ALF and in his Order reject and to strike out these claims. The draft application was served on the Claimants on 17 May 2006 but not formally lodged until 24 May 2006. In his Judgment of 26 May 2006, Holland J adjourned the applications relating to Mr Webb as a representative of the ALF and struck out the claim against him as an individual.[9]The Claimants appealed the Order of Holland J. Their appeal was, inter alia, against the order striking out the claim against Mr Webb personally. For reasons explained to me in the course of the hearing, Mr Webb consented to that appeal, but on the basis that there would be a further application to strike out the claim against him personally. On 5 July 2006, Davis J. ordered that the hearing of the tenth defendant’s application to strikeout the claim against him should be adjourned until the determination of the appeal against the order of Holland J. On 1 August 2006, there was an order by Keene L.J. setting aside the order of Holland J., in pursuance of the agreement between the parties, which had the effect of reinstating Mr Webb as a defendant in his own right.[10]Thus by a rather tortuous procedural route, it fell to be decided before me whether Mr Webb should be a defendant to this action as a representative of the ALF or in person. On the face of the amended particulars of claim, Mr Webb was substituted for the ALF as a defendant, although as I have set out above the recital in paragraph 21 of the amended particulars of claim remained to the effect that “the tenth defendant is an unincorporated association known as or which operates under the name of the……..ALF.” I assumed for much of the hearing it was common ground that the ALF would be joined, if at all, through Mr Webb as a representative legal person. In the course of argument, it became clear that the claimants would wish the ALF to become or remain a party to the action, even if the claim against Mr Webb was dismissed both personally and as a representative of the ALF. For those reasons I made clear in the hearing that a third point should be decided: if the ALF are not to be joined through Mr Webb as a representative legal person, should the ALF become (or remain) a party without there being a representative legal person? I dispensed with any necessary notices of application or periods of service so that point may be decided at the same time. Standard of proof and approach to evidence.[11]Both parties made it clear that so far as the specific questions I am asked to address are concerned, they wanted this hearing to be determinative. So far as I am able within the confines of the approach that has been adopted, I have taken the matter fully. However, it is important to keep in mind that the matter is still at an interim stage. I have heard no oral evidence and thus no testing of the evidence in cross-examination. Much of the evidence is disputed. Nothing said by me is intended to preclude or inhibit challenge or argument at any trial.[12]For the defendant, Ms Harrison has urged me to apply either the criminal standard of proof or a standard such as “a real prospect of success”, rather than merely the standard of probability. She does so by reference to the fact that rights under the European Convention of Human Rights are in question or that potential criminal or quasi criminal liability is in question. For these purposes she has cited to the court R (McCann and Others) –v- Crown Court at Manchester and Another [2003] 1AC 787, Cream Holdings Limited v Banerjee and Another [2004] UK HL 44 [2005] 1AC 253 and also A and Others v Secretary of State for the Home Department [2004] UK HL 56 [2005] 2 WLR 87.[13]If this were the trial, the authorities cited might bring the court to apply a higher standard than mere probability. For the purposes of an interim ruling, that may not be necessary. However, I am able to say there is no conclusion of fact which I have reached, that is based on mere balance of probabilities. The conclusions of fact I have set out below – whether I need to or not – carry a high degree of confidence, quite up to that level conventionally required in civil proceedings when deciding matters capable of amounting to criminal conduct. The background of the ALF.[14]Although this case is still at an interlocutory stage, there is a vast quantity of material already before the court bearing on the history of the ALF and associated groups. For the claimants, Rizwan Majid gives a general account of the history in his twelfth witness statement. For the defendants, the first witness statement of Ronnie Lee, at bundle A pages 292 and following, perform something of the same task. Although there are important differences, there are perhaps surprising convergences.[15]All agree that the ALF is an organisation dedicated to achieving its end by unlawful means. The ALF has three stated principles or guidelines:(1) that actions should be carried out to rescue animals from establishments where they are being abused or ill treated [in the view of the ALF] or to cause damage to property connected with the abuse or ill treatment of animals;(2) that care should be taken in the carrying out of actions that no person or animal should be killed or injured thereby and(3) that in the course of any action no physical force should be used against any person, except in self defence. Mr Lee describes those principles as being present from the beginning in the very early 1980s. Similar formulations appear in very recent publications. For example, in the current website of the ALF supporters group, we read:
“The Animal Liberation Front has two objectives. The first is directly to save the animals from suffering, and to destroy the equipment used to inflict that suffering. Their second and long term aim is to force all animal abuse enterprises to close.”
[16]The website goes on to say:
“[animals] need liberation – and they need it now! The ALF exists to take illegal action to save animals, their actions serve as a last resort, when all other forms of action have failed, or will fail.”
[17]Mr Lee exhibits to his witness statement extracts from a recent account of the ALF – “Behind the Mask: uncovering the Animal Liberation Front” by Dr Stephen Best. Dr Best is an American academic who is himself an animal liberationist. He has been excluded from entry to the UK because of his activities. He is thus presumably knowledgeable, but not independent. At bundle A pages 308 to 9, Dr Best writes:
“ALF activists operate under cover, at night, wearing balaclavas and ski masks, and in small cells of a few people. After careful reconnaissance, skilled liberation teams break into buildings housing animal prisoners in order to release them (i.e. mink and coyotes) or rescue them (i.e. cats, dogs, mice and guinea pigs). They seize and/or – destroy equipment, property and material used to exploit animals, and they use arson to raze building and laboratories. They have cost the animal exploitation industries hundreds of millions of dollars. They wilfully break the law because the law wrongly consigns animals to cages and confinement, to loneliness and pain, to torture and death.”
Although it is clear the Dr Best’s comments are directed principally at the American ALF, the book makes clear that his remarks apply also to the ALF in the United Kingdom.[18]It is beyond doubt that the ALF as a movement, and those who identify themselves with the ALF, place themselves above the law. Behind the mask, and doing their best to avoid detection, they claim the right to commit crimes, and by implication to break injunctions. Although there is a formal disavowal of actions which will hurt people, it will be obvious that crime such as arson places employees, the emergency services and the public at grave risk.[19]Moreover, one of the key weapons of this movement is fear. Viewing the material as a whole, there is an important distinction between the tone and content of what is written for general public consumption and what is written in internal memoranda, magazines or news sheets. Writing for public consumption, the ALF and those who represent them, put on their most moderate face. Writing to those whom they intend to frighten, such as employees, contractors or directors of companies or institutions whom they wish to attack, the tone is direct, abusive and threatening. The same tone surfaces consistently in internal documents, such as the magazine “Arkangel.” The references to those under attack are often dehumanising: they are referred to as “scum,” or worse.[20]The website of the ALF Supporters Group of June 2006 makes clear that fear is consciously used, not merely against the directors or employees of institutions, or companies central to their campaign, but against customers and suppliers:
“Recently the ALF have come under fire for targeting secondary targets such as suppliers or customers of laboratories. The reason for this is simple – without insurance, shareholders, canteen food, or even toilet paper, no business can stay open. Therefore, if a large company is the target, and they are unlikely to close because they alone are targeted, the ALF feel that in the long term, applying pressure to companies vital to the abuse companies’ running are an eligible target. All of these companies are contacted before they become a target, and most cut all ties with animal cruelty immediately. Those who don’t are informed that they are not only supporting animal cruelty, but are potentially keeping an animal abuse company open. If they are happy with that then they become a target. While this may seem controversial, its success can be seen most clearly at Huntingdon Life Sciences, who have no insurance, no bank account, and exist simply because the Government feels it can’t afford to let them close.”
Thus the ALF, if their views are correctly described in the supporters group website, are prepared to apply fear to the suppliers of food, decorating materials - and no doubt the window cleaners, - of their target companies or institutions.[21]I should stress that I am here dealing with the avowed principles and activities of the ALF. It is clear that some within this movement have gone far beyond this and produced some direct, deliberate attacks on people, for example, the incendiary bomb sent to Professor Colin Blakemore. The organisation of the ALF and its associated groups.[22]On the question of organisation, there is greater difference between the evidence before me from the differing parties. The suggestion by the claimants, drawn very largely from published sources and set out in the various witness statements and exhibits of Mr Majid, really contains two propositions. Firstly, it is said that the ALF, the ALF Supporters Group, the press officer for the ALF, Mr Webb and probably the magazine Arkangel represent one organisation. Secondly, it is said that this organisation is not merely efficient and effective, but highly structured. Mr Majid’s witness statements speak of “committees” of leadership of the organisation and of the “membership”. On the other hand, Ms Harrison for the tenth defendant Mr Webb, rejected this picture of the ALF. Her submission, based on her instructions and on material emanating from within the animal liberation movement, was explicitly that there was no overt structure to this organisation. That was the direct consequence of a conscious attempt to evade detection and prosecution, as she put it to the court, by “avoiding the trappings of being an organisation”. I accept much of this proposition.[23]There is no evidence before the court demonstrating an explicit formal structure to the ALF. There is no evidence of a committee structure, of a formal governing body, of a formal leadership, constitution, internal contract or agreement, annual conference or set – piece meetings and so forth. In part, this may reflect those who join this movement. As Dr Best observes in his book “Behind the Mask” (bundle A 312) “….many direct action advocates (such as in the ALF and ELF) are anarchists, who seek to replace the states and legal system they hold in contempt…” Dr Best goes on to write:
“the ALF is any individual or group in any area of the world who at any time decide to strike against animal exploitation in the name of animal rights while following ALF guidelines……to join the ALF, one does not consult the local YELLOW PAGES; rather, one goes into stealth action.”
[24]In my judgment, the truth lies between the positions advanced by the two sides. The ALF does not have any kind of formal constitution, directorate, committee structure or explicit governing contract as would a conventional trades union or other organisation. That is not a pretence but the fact. Probably the two main causes for that fact are an anarchistic style within the grouping and deliberate tactics to avoid being caught by the law. The ALF and associated groupsand how they function.[25]Mirroring the title of the book by Dr Best, a highly professional and no doubt expensive DVD has been produced entitled “Behind the Mask”. This was first screened in Britain on the week of the hearing before me. Intended to portray the successes of the movement, the presentation aims to emphasise successes in coordinating action against the ALF’s target. From the opposite perspective, the claimants seek to make the same point: that the movement can be effective precisely because the different parts of the ALF, as they would have it, work effectively together. The ALF Supporters Group [ALFSG] brings out support and raises funds, demonstrates in conjunction with other groupings, and gives moral backing to the ALF’s direct action. The press office appeals for funds on behalf of the ALFSG. Arkangel helps to set the tone with the aim of encouraging more support and the flow of funds between these groupings. The claimant suggests that it is probable that money given to the ALFSG will find its way to support activities of the ALF. There is no direct evidence of that, but there has been no disclosure to deal with the point. I agree that it is probable such flows of funds have occurred.[26]In my judgment, it is an error to think of these groups as discrete. There is clear evidence of a cross-over of important central personnel between them. The witness Ronnie Lee is the former leader of the ALF. Yet it was as the person in charge of the ALFSG that he was convicted of serious offences and imprisoned. He controls the bank account of the ALFSG. In the course of his witness statement, at paragraph 4, Mr Lee claims “I do not know any current ALF activist….” I reject this assertion as being very highly improbable and disingenuous. Mr Lee and Vivienne Smith, both formerly convicted of offences to do with ALF activity, are past editors of Arkangel. Consistency of core personnel is demonstrated by another piece of evidence before the court, dating from 1993. In exhibit RM17/2 at page 121 is a list of names headed “Prisoners of War.” This is a list of people who, between 1975 and the year of publication, served prison sentences for offences arising from the ALF. There is a high degree of consistency over those years and a high degree of consistency with core figures still in the heart of the movement such as Mr Lee himself, Mr McNally, Ms Smith, Mr Curtin, Mr Mann – many of whom appear in the DVD screened for the first time in September 2006. It is clear from the internal publication exhibited at RM20 page 503 that secret email lists are maintained so that internal communication within the movement is handled rapidly and efficiently. Indeed, a further internal publication exhibited at RM17/2 tab 8 the message is emphasised that “strength is unity”.[27]It is important to consider the function performed by the ALF press officer and press office, a function principally carried out by Mr Webb the tenth defendant, who has been the press officer since 1991.[28]In the March – May 1992 ALF supporters group newsletter the function of the press office is set out under the sub heading “what does the press office do?” The newsletter explains:
“The Press Office has three basic functions, all of which are designed to explain why the ALF does what it does, how it does it and how non-human animals are treated by our species. Any anonymous information received by the press office which details ALF style actions will be communicated to the media. Whether the spread of coverage is local, regional, national or international, depends on the scale and type of action. Even a broken window is likely to be reported in the local press if the ALF national press officer has contacted the local newspaper. When an action occurs which appears to be Animal Liberation–related, the media often contact the press office to ask whether it would appear to be an official ALF action. The press office can confirm if such actions fall within ALF policy and explain the suffering that necessitates such actions. The press officer, as the “public face” of the ALF, can appear on TV documentaries and news programmes, participate in radio phone in, offer “in-depth” interviews to magazines and newspapers and speak at public demonstrations, rallies and group and open meetings.”
In my judgment, this passage encapsulates fairly accurately the function of the press office even up to 2006, although some further references below will give added emphasis. The press office is not a neutral reporting exercise or even simply a vehicle for apologetics for the ALF. The press office is a vital part of the strategy of the ALF. Mr Webb, as press officer, has the responsibility of emphasising, if anything exaggerating, the scale and effect of ALF law- breaking. His job is precisely to potentiate the impact of ALF “direct action”. He also performs the key function of encouraging the activists to keep going. Without the encouragement of publicity it is likely that fewer would join the movement and many within it would fall away.[29]Conclusions close to those that I have set out above have been reached by the courts in the United States of America. In exhibit RM20 at page 298 and following appears the US Government’s Sentencing Memorandum which sets out a very similar analysis of the ALF in America. From the point of view of this case, the key sentences are as follows:
“Both the acts of violence and the corresponding publicity are crucial to the ALF goals. The violent attacks are designed to end animal exploitation by economically crippling the targeted business or research facility. Publicising the facts and threatening future violence also furthers this goal by intimidating potential victims into abandoning their activities.”
I accept this conclusion, which in my judgment applies with fair accuracy to England and Wales.[30]In delineating the underlying coherence of the ALF and its satellite groupings the court must not fall into the error of overstating its scale. The movement is persistent but very small.[31]The important conclusion for present purposes is that in my judgment, the ALF, ALFSG, Arkangel and the press office are in reality one movement, even if they have sought to avoid the formal trappings of an organisation. They have a consistent group of people at their core. They have effective internal communications, by email and otherwise. The ALFSG website is maintained regularly. The Press Office functions on a daily basis funds are managed. Arkangel operates as an effective newsletter and mouthpiece. Mr Webb’s appointment was arranged in 1991 and he has been effectively supported since then. The campaigning of the organisation has been highly co-ordinated, and it is evident that priority targets have been agreed. The fact that we cannot read the minutes of a decision-making body, does not mean that decisions are not taken. In my judgment the above-named ALF groups taken together represent a reasonably coherent organisation. The position of Robin Webb.[32]There is no doubting Mr Webb’s commitment to this movement. At bundle A page 308 he is quoted as follows:
“Animal liberation is the ultimate freedom movement, the “final frontier”.”
[33]It is said on Mr Webb’s behalf that there is no evidence he has ever been involved in illegal activities. It is said he is not in the same position and has not the same interest as others within the animal liberation movement. It is said that acting as an apologist for the ALF, provided always that that role does not cross the line into incitement, is lawful and legitimate. It is said that not merely is Mr Webb not a member of the ALF – even if such a status were accepted as possible – he is not a member of the ALF Supporters Group. When I asked directly, why he was not a member of the ALFSG, Ms Harrison took instructions on this point and gave a reason: the explanation was that Mr Webb received the newsletter of the ALFSG without being a member. I regard this explanation as specious. After a little time, and some further instructions, Ms Harrison added the explanation that perhaps Mr Webb wished to keep himself clear of any express ALF associations. I accept this explanation. In this case, as in many others, counsel had a difficult duty to perform.[34]I accept that it is probable Mr Webb has not been involved in any practical hands on ALF criminal activity, at least for many years. In my judgment that is because it is desirable, from the point of view of the movement, he should keep well clear of such activities. This conclusion is not just the fruit of Mr Webb’s own tactical insight but the long term outcome of a concerted decision by a group at the heart of the ALF movement. It is clear from the evidence of Mr Lee, Mr Webb himself and from many of the contemporaneous papers that the group at the heart of the ALF decided in 1991 the movement would benefit from a skilled apologist and propagandist, who could bear an official- sounding title at the core of a consciously informal movement. It was in this way that a movement or organisation with few visible structures gave rise to an officially-appointed press officer.[35]It is remarkable that not merely was Mr Webb appointed in 1991 but that his position has survived until 2006. That longevity may well depend not on organisational informality but on the continued support of the relatively small number of people at the heart of the movement, who know each other well, trust each other and operate effective control over the ALF. In my judgment, Robin Webb is one of those. His position would not have been maintained if the job he was doing was not what is wanted by them.[36]How does Mr Webb see his job? The evidence in the case represents an embarrassment of riches for those seeking to establish Mr Webb’s approach. At exhibit RM 17/2 pages 117 to 118, Mr Webb considers his reaction as press officer to those who go beyond the official ALF principles:
“How far underground do you need to go to ignore the media? Both the ARM [“Animal Rights Militia”] and the HRS have used the ALF press office during the past year and even the JD [“Justice Department”] (surely the group with the greatest need to be “underground”) are using the press office and the media. At the end of the day, it’s all down to the individual’s opinion. As Keith Mann once wrote in defence of the press office, if an activist doesn’t want the press office to speak to the media about an action that person has carried out, then they have only got to let me know and their wishes will be respected. The only thing I would ask in that situation is that the caller gives me some proof that they were the ones involved. I don’t want the police trying to claim their activities just to stop the news coverage!”
This represents a promise by Mr Webb to respond to the tactical wishes of those who would go beyond the stated principles of the ALF, in their methods if not their aims. The reference to the police can only rationally be explained as a pitch to exclude the possibility of agents provocateurs, in the context of a extreme or striking events. That in itself is demonstration of the lengths to which Mr Webb might go, in extenuating the activities of the animal liberation movement.[37]Earlier in this judgment, I pointed out the difference between private and public language within this movement. An example of the careful and calculated use of public language by Mr Webb is to be found reported in the newspaper “Cherwell” of 5 October 2005, appearing at bundle A page 214, and in the context of the Oxford dispute. Given the argument from Ms Harrison for the defendant, that I should treat sources from the media with care; and given the obvious common sense of that general proposition; I should record that in this quotation and others made in the course of this judgment, I have sought to extract passages where the meaning could not be altered by the question asked. “When asked whether the attacks were levelled against the affected colleges specifically, ALF spokesperson Robin Webb responded:
“The Animal Rights Movement sees all of the University as a legitimate target, whatever the department, college or associate. A university spokesmen stated “the University remains firmly committed to the completion of [the Animal Testing Laboratory] which is part of an ongoing programme to replace and update existing laboratory space. “Webb opposed these sentiments by saying “the University won’t be successful, the facility won’t ever be used for what it is intended. We can’t predict what is going to happen in the future with the Oxford Arson Squad. I assume the actions against Oxford University will continue while they try to press ahead with the facility.”
[38]This passage is one of many where Mr Webb echoed the threat from the ALF to the University. No fair reading of the vast bulk of this material could end with the conclusion that Robin Webb was merely a reporter of views held by the Animal Rights Movement. Rather, he is someone whose business is to seize upon every event and consciously amplify and emphasise the effect upon the climate of opinion within the University of Oxford and beyond. In my judgment this is a conscious contribution to the fear sought to be exercised by the ALF and associated groupings upon the University of Oxford and all those who cooperate with them.[39]Such a conclusion would be justified on the evidence coming from times and occasions when Mr Webb thought himself operating in public or “on the record.” However, within the evidence before the court are records of key occasions when Mr Webb believed himself to be speaking in private to those sympathetic to his viewpoint. In 1998, the documentary programme “Dispatches” recorded Robin Webb at some length, in discussion with a clandestine reporter. This documentary programme won a number of awards despite that, I approach the record of the programme with caution, given the misrepresentation which can emerge from the planning, execution or editing of such a programme. However, no reasonable person watching the unedited footage which is before the court, could come to a different conclusion than the findings I make. The undercover reporter had reached a position of trust with Robin Webb. Mr Webb’s attempt to suggest otherwise in his witness statements is untrue. He proceeded to outline to the reporter the method of constructing an incendiary device. In doing so, he took a number of precautions. When asked to give a description of the methodology, he insisted that the reporter obtained a pen and paper of his own. He advised the reporter to use a single sheet of paper only, so as to avoid the risk that incriminating indentations were created on underlying leaves of paper. At one point in his description, he back-tracked, revised one step in the process, and re-described the method required to manufacture an effective incendiary bomb. Any suggestion that this was all a bluff on the part of a man suspicious of his interlocutor is pitiful.[40]On 26 January 2003, Robin Webb attended a “Conference on Organised Resistance” in the United States. He was captured on hidden camera, addressing the conference. He may possibly have guessed that he was being filmed, but if he did, his vanity overcame his caution. Having informed his American audience that a description of the method for manufacturing incendiary devices might render him liable to arrest and prosecution under the English law of incitement, he proceeded to do exactly that, under the guise of reporting evidence given in an English criminal trial. It is noteworthy this was a second, different design of device from that discounted in 1998. Observation of the manner and tone with which he gave this presentation leaves no doubt as to his intelligence or his disingenuous glee at describing what he wished to describe, while laying the responsibility at the door of another. The Law[41]This case resolves itself into five questions involving the law or the application of the law: [1] Can and should the ALF remain defendants to this action, the claim continuing against a person representing them further to CPR 19.6? [2] If the answer to [1] is “yes” should Robin Webb continue as a defendant as such a representative person? [3] Can the ALF be a party to this action other than through the operation of CPR 19.6? [4] Can and should an injunction be continued against the ALF if they do not remain a party to the action? [5] Should Robin Webb continue in any event to be a defendant to the action in an individual capacity and to be subject to the injunctions in place?[42]The Rules of the Supreme Court have provided for persons to be sued as representing a class, since the 19th century. Although the rule was redrafted in 1962, and although the Rules of the Supreme Court have now been replaced by the Civil Procedure Rules, the relevant provisions have not fundamentally changed in their sense and earlier cases are of help in considering the application of CPR 19.6. The relevant wording of the CPR 19.6 is as follows:
“19.6 – (1) where more than one person has the same interest in a claim – (a) The claim may be began; or, (b) The court may order that the claim be continued, by or against one or more than the persons who have the same interest as representatives of any other persons who have that interest. ….. (iv) 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.” (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.”
[43]This rule and its precursors has long been used as the means by which injunctive relief may be granted against an unincorporated association: see Taff Vale Railway Company v The Amalgamated Society of Railway Servants [1901] HL (E) 426. In his speech reported at page 438, Lord Macnaghten said:
“I have no doubt whatever that a trade union, whether registered or unregistered, may be sued in a representative action if the persons selected as defendants be persons who, from their position, may be taken fairly to represent the body.”
[44]In the same case, Lord Lindley added two points still relevant today. The trade union legislation of the late 19th century compelled registration for a trades union. The question arose whether the registered name could be used to denote the unincorporated society in legal proceedings. Lord Lindley said the name could so be used:
“The use of the name in legal proceedings imposes no duties and alters no rights: it is only a more convenient mode of proceeding than that which would have to be adopted if a name could not be used.”
[45]Lord Lindley also distinguished between the position for injunctive relief and an action for debt against the union. In his speech in the same case at page 445 he said:
“Your Lordships have not now to consider how a judgment or order against a trade union in its registered name can be enforced. I see no difficulty about this; but, to avoid misconception, I will add that if a judgment or order in that form is for the payment of money it can, in my opinion, only be enforced against the property of the trade union, and that to reach such property it may be found necessary to sue the trustees.”
[46]It follows that from early on, unincorporated associations could be sued in representative proceedings provided suitable legal persons could be found to be the defendants, alongside action in the name of the unincorporated association. It is also clear that a rather different approach was thought proper as between an action for an injunction and a money action. This last point was underlined by the Court of Appeal in Walker v Sur and Others [1914] 2KB 930. In his judgment at page 934, Vaughan Williams L.J. said:
“I cannot doubt that the intention of order xvi rule 9 was to make easier the bringing of actions for the enforcement of rights against an unincorporated aggregate of people. What the rule says is this: “where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the court or a judge to defend any such cause or matter, on behalf of all persons so interested.”
The rule, as it stands, does not purport to leave it to the mere will or choice of the plaintiff or of the defendant, nor to give a right in either case of selection of the choice of a plaintiff who wishes to sue representative members of an unincorporated society. As I understand the rule, it lies with the judge to give the authority, and if he thinks it a case in which the plaintiff may properly sue the persons that he proposes to sue as people proper to be authorised to defend in such cause or matter on behalf of or for the benefit of all persons so interested, then the order may be made. That has not happened in the present case.”[47]In the same case, Buckley L.J. in his judgment at page 936 underscored the distinction between an action for damages and an action for other relief:
“The plaintiff has not asked for any declaration of right as between himself and all the members of the class, which, if affirmed in his favour, could be enforced against individual members of the class. He is only suing for money, for which he wants judgment against certain persons, and he wants by this order to be in a position to say that he is pursuing his remedy against persons who are not parties in the sense of being parties on the record…..We have to determine whether this action ought to go on so that execution could be maintained against all the persons represented. In my judgment that would be impossible. It is simply an action of debt against a large number of individuals, and no judgment could be obtained which would be representative against all of them; there could only be a judgment individually against each of them.”
It is also relevant to this case, as Kennedy L.J. observed in the course of argument, see page 933, that in the Taff Vale case:
“Lord Lindley was…..speaking of representative committee; here you are dealing with mere individuals.” “Lord Lindley was…..speaking of representative committee; here you are dealing with mere individuals.”
[48]There is no doubt that care has to be taken before making an order for representative action, to ensure that those represented “are a class of persons who have the same interest in the claim”. I accept the point urged upon me on behalf of the defendant that, upon occasion, this might mean that different members of the class had different defences to proffer. Ms Harrison relied upon a passage from London Association for Protection of Trade v Greenlands Limited [1916] 2 AC 15. In his speech at page 39, Lord Parker of Waddington said in that case:
“….It will be going very far to hold that every member was liable for the tort of the secretary [of the association], even though such tort were committed in the course of carrying out the duties assigned to him under the contract between him and the persons who engaged him. In other words, there might be separate defences open to some members of the association and not to others, and if this was so there would be no common interest within the rule.”
This consideration may well prevent a representative order in some cases, but the outcome must depend to some degree upon context, both as to the facts of the case and as to the Rules of the time. In 1916, the Rules did not provide such safeguards as apply today.[49]There are now two safeguards available to a member of the class affected by a representative action. Firstly, as here, careful provision should be taken so far as possible to alert all those in the class, of the existence of the order and of the fact that it binds them. Any member of the affected class who would then seek to say that they did not have an identity of interest sufficient for the Rule, or specifically that they wished to run a different defence, could always and can now apply to be joined as a party and run that different defence, or indeed seek any other order from the court on an interlocutory basis. Such relief could of course include release from an injunction.[50]Secondly, the modern Rules provide another safeguard in the shape of CPR 19.6 (4)(b) which, as set out above, provides that:
“….any judgment or order given in a claim in which a party is acting as a representative….may only be enforced….against a person who is not a party to the claim with the permission of the court.”
This is an important additional safeguard.[51]In more modern times, representative orders have been both issued and withheld in a number of cases comparable to the present one. In Conservative and Unionist Central Office v Burrell(Inspector of Taxes) [1982] 1WLR 522 the Court of Appeal held that the central or national Conservative Party lacked the: “…characteristics of an unincorporated association for the purposes of the tax statutes. There are no mutual understandings between all the members, no mutual rights and obligations and no rules governing control where it clearly lies, which is in the leader. It is no answer to say, as Mr Knox did, that on joining a local constituency association members impliedly agreed to accept what he called the conventions of the party. Agreements which confer rights and impose obligations, as membership of unincorporated associations do, must be reasonably certain, because they may become justifiable and those creating unincorporated associations sometimes do”: See the judgment of Lawton L.J. at 527 c.[52]In United Kingdom Nirex Limited v Barton and Others (1986) The Times, 14 October, Henry J., as he then was, was faced with an application for representative action against two groups protesting the threatened creation of a nuclear dump. The groups were called HAND and LAND. In the HAND action there were 24 named defendants, each sued both personally and “on behalf of all persons belonging to or associated or affiliated with” HAND. In the LAND action there were 26 named defendants sued in a representative capacity. The court has been provided with a transcript of the judgment in this case. At page 3 of the transcript, the learned

judge wrote:

“The need for a representative action is because, as both HAND and LAND are unincorporated associations, they can neither sue or be sued as such in those names. To sue them, therefore, it is necessary for all their members to be sued and the convenient way to do this is by appointing some of their members to represent the totality. The court is empowered to decide whether this is a proper case for such an action. If so, it is agreed the proper representative would be the General Purposes Committee in the HAND case and the executive committee in LAND.”
[53]The judge noted that there was a deep division of opinion within each group as to whether individuals would or would not support unlawful action. He then analysed the plaintiff’s case in justification of the representative action:
“The aim of the association is the prevention of nuclear dumping. One of the ways they seek to achieve that aim is by protest at the site. The protests at the site were marked by obstruction. That obstruction was unlawful. Many if not most of those so acting were members of the association. Therefore the associations organised the unlawful actions and are liable for the activities of those who took part. Members not prepared to countenance such illegal actions should thereupon have resigned. Without a representative order [the plaintiffs] say: “fresh batches of people will block the way in protest and will alternate as and when process can finally be obtained and served on them properly and so it will go on.”
This approach by the plaintiffs assumes that the organisations are dedicated to law breaking. It seems to me that the above analysis is unrealistic on the facts of this case. Anxiety as to the safety of nuclear energy is widespread. An association formed with the objects that these two associations have will inevitably be a broad church. Many who are anxious about nuclear energy come from law abiding and law fearing sections of the community where a protest would in any other situation, in any lesser cause, be quite unthinkable. Others, no doubt, are experienced protestors, perhaps used to going to the limits of the law or occasionally beyond it. They come together under the umbrella of an organisation loose in the extreme, with no powers to discipline or expel members; members who are not vetted before they join, but simply buy a card (or, at a discount, a family card) at some fund raising events. It is in no way sinister that associations such as these have little or no control over the actions of their members. It is simply a natural reflection of the nature of the association. If some, or even many, of such an association members break the law, it should not be too readily assumed that that is the policy of the association.”[54]Henry J. went on to refuse representative action in that case and the core of his reasoning appears in the following passage on page 5 of the judgment:
“The matter may be tested by considering the position if unlawful interference with the plaintiff’s activities by a minority of members resulted in a damages claim in the action. It would be in the minority’s interest to have the judgment spread over as many defendants as possible and therefore in their interests not to contest the allegation that the torts were committed for and on behalf of the organisation. The majority, on the other hand, would wish to show that the organisation was not liable for them, and that only the minority should be liable for damages. It seems to me patent that here there is a clear divergence of interests, and so the essential requirement for a representative action does not here exist. In so finding, I am following the approach of Mr Justice Stuart-Smith in News Group Newspapers and Others v SOGAT 82 [1986] IRLR 337, where he refused to make representative orders against individual branches of a union where there was or might be a difference of opinion as to the achievement of the common goal by commission of torts. The situation would be different if the court formed the view that the members of the organisation in question were united (or substantially united) in a policy for the achievement of its goals by unlawful means [emphasis added]. But one does not need investigation of the matter at full trial to know that that is not this case.”
[55]It will be seen from the last passage that the fatal difficulty perceived by Henry J. in the Nirex case was not the looseness of the organisation but the clear evidence in the case that the majority of opinion in the two organisations wished to obey the law. It seems clear that had the organisations had an unlawful policy, the judge would have made representative orders. In relation to the ALF, determination to break the law, or at the very least active support for law breaking, is a defining feature of adherence to the organisation.[56]In M. Michael’s (Furrier’s) Limited v Askew (unreported) 23 June 1983, the Court of Appeal considered interlocutory injunctions granted by Stephen Brown J, restraining the members of an organisation “Animal Aid” from picketing damage trespass and molestation, with other specific acts against the plaintiff’s fur shop. The leading judgment was given by Dunn L.J. After a considerable review of the authorities, he dismissed the appeal against the order for representative action and the injunctive relief in the following terms:
“The essential issues in these proceedings so far as Animal Aid is concerned are whether Animal Aid are campaigning against the fur trade, and whether Animal Aid are compromised by the actions of Mr Askew at the plaintiff’s premises. There can be no conflict of interest between Mrs Pink and all the other members of Animal Aid on either issue. Her case, according to her affidavit, is simply that Animal Aid as an organisation has nothing to do with the events at the plaintiff’s premises, and that must be consistent with any defence put forward by any member of Animal Aid. It is difficult to know what if any defence would be open to Mr Askew, since he has not filed an affidavit and it is not clear from the judgment what defence he put forward at the hearing where he represented himself and refused to offer any undertaking. If he were to allege that his acts were authorised by Animal Aid that would afford no defence to him and if he was to say they were not so authorised that would be entirely consistent with the case of Mrs Pink. The court has no knowledge of the membership, constitution, or finances of Animal Aid, because Mrs Pink has vouched safe the minimum of information in her affidavit. However, if the injunction is sought to be enforced against any member not before the court, it will be open to him to dispute liability on the ground provided by the rule. Care must be taken to ensure that Order 15 r 12 is not abused. But where a number of identified persons are causing injury and damage by unlawful acts of one kind or another, and there is an arguable case that they belong to a single organisation or class which encourages action of the type complained of, and their actions can be linked to that organisation, then the rule enables the court to do justice in the particular case. The narrow construction of the rule advanced by Mr Warner would in my view deprive the courts in a situation like this of a useful remedy. I would dismiss the appeal, but vary the order by deleting paragraph (v), which it was conceded was unnecessarily wide in its scope, and might involve interference with lawful activities.”
[57]Purchas L.J. concurred in the decision. His decision concentrated on the question:
“On the evidence before the learned judge, and now before us, is it possible to say that it fails to disclose that the plaintiffs have any real prospect of succeeding in their claims for a permanent injunction at the trial?”
Having answered this question in favour of the plaintiffs, Purchas L.J. went on to answer some supplementary questions and to consider whether the grant of an injunction was “…within the discretion of the court and the principles laid down in American Cyanamid Co v Ethicon Limited [1975] AC 396” and concluded that there had been a proper exercise of discretion.[58]It follows that the Michael’s Furriers case is Court of Appeal authority for the use of representative action, particularly with a view to both interlocutory and permanent injunctive relief, in circumstances close to the facts of the instant case. Not surprisingly, the claimants in the case before me rely heavily upon it.[59]More recently still, in Monsanto Plc v Tilly and Others (unreported) 25 November 1999, Court of Appeal considered representative action and injunctive relief in a case involving a campaign group known as GenetiX Snowball (GXS), a campaigning group who engaged in unlawful activity by destroying genetically modified plants. In the course of his leading judgment, Stuart-Smith L.J. stated:
“although it is not correct to say there are members of GXS as such, the judge was right in my view to regard it as unincorporated association.”
His Lordship recited the following features of GXS as an organisation:
“it is directed and managed by a coordination group; it has and publicises a postal address, telephone line, facsimile number and e-mail address; it has received (and presumably dealt with) over a thousand enquiries to its office; it has a “comprehensive” website and a website administrator; it has a bank account and seeks donations; it has published a 100 page handbook, …and distributed 600 copies; it publishes a newsletter; it has published a video film;…..which has been “well received”; it has a press/media liaison; it has held over 40 public meetings; it trains people to take direct actions as part of its campaign; it has undertaken a number of direct actions, the direct actions involved over 70 people; it has branches or local groups who meet regularly in Briton, London, South East, and branches in Scotland, Bristol and Cambridge; it acts as a coordinating office for proposed uprooting action by its campaigners.”
The court went on to emphasise that in their view the important distinguishing factor from the Nirex case was the division of opinion within the groups in Nirex, as apposed to the unanimity within GSX in favour of unlawful activity.[60]In a number of recent first instance decisions, which have been put before the court, orders have been made against protest groups which have been said to be unincorporated associations. These include Huntingdon Life Sciences Group Plc v Stop Huntingdon Animal Cruelty “SHAC” and Others (unreported) EWHC 1967 20 June 2003, Gibbs J.; Daiichi UK Limited and Others v SHAC, the Times October 13 2003, Owen J.; Emerson Developments (Holdings) Limited v Avery and Others [2004] EWHC 194, Field J.; Phytopharm Plc and Others v Avery and Others [2004] EWHC 503, Goldring J.; Chiron Cooperation andOthers v Avery and Others [2004[ EWHC 493, Royce J.; Hall and Others v Save New Church Guinea Pigs (Campaign) [2005] EWHC 372, Owen J. In all of these orders, were made against protest organisations as unincorporated associations in the name of the unincorporated association and without representation by a legal person. In many of the reports, there is silence as to whether any point was taken about either the appropriateness of suing an unincorporated association, or the properties of the protest group in question, or the necessity for a legal person to be joined. In some, for example the Phytopharm case, the judgment is clear that no point was taken by the defendants as to the approach.[61]However, in EDO MBM Technology Limited v Campaign to Smash EDO and Others [2005] EWHC 837 similar points to those put to me were taken before Gross J. Two pressure groups were involved in this case, called “Smash EDO” and “Bombs out of Brighton” or “BOOB.” Gross J. decided on material similar to that brought forward here, that Smash EDO was an “entity” which together with “predecessor organisations” had been conducting a concerted campaign. He adopted the phrase of Gibbs J. in the Huntingdon Life Sciences v SHAC and Others case and decided that EDO was a “sufficiently identifiable group” to be regarded as an unincorporated association.[62]However, the second point taken by the defendants in the EDO case was that on the evidence, there was no representative individual. As Gross J. put it in paragraph 43 of his judgment:
“…..immensely attractive though it is to resolve problems of identification of individuals by way of joining unincorporated associations into legal proceedings, it is not possible to do so unless, at the least, there are before the court individuals capable of being sued as representatives of the associations in question. If so, then all that would be lacking is the formality of representation order. Again with respect, as it seems to me, in all the cases relied upon by Mr Lawson-Cruttendon either such was the case or the point was not disputed. But here, there is no or no serious suggestion that any of the individual defendants before the court, or for that matter Mr Gibbons, could be treated as representatives of Smash EDO and the point has been taken.”
Because of that fact, Gross J. seemingly reluctantly struck out the proceedings against Smash EDO.[63]My answer to this question is yes. Taking all the authority I have summarised above, it appears to me the law that an organisation as coherent as the ALF can be represented in a legal action. Whilst it deliberately lacks the “trappings” of an organisation, the truth is that it is an organisation with a consistent and coherent body of people at its heart. For example, those who run the ALF Supporters Group may not call themselves members of the ALF and may no longer directly engage in physical assaults on property but they remain active in raising consciousness, money and recruitment for unlawful purposes that they intend to be carried out by the ALF. Active members of the ALF, the ALFSG, the ALF Press Office and the magazine Ark Angel are in fact members of one organisation, in complete agreement about aims objectives and means, who co-operate fully and actively with each other and who conceal the skeleton and sinews of the organisation from sight for tactical reasons.[64]No doubt there will sometimes be difficulties with specific individuals on the fringes of this organisation. No doubt also there are individuals, not in preliminary contact with the underlying organisation, who take individual action and claim the label of the ALF, whether in the form of graffiti at the scene or after the event in some way or another. In my judgment, even in the latter case, there is very little difficulty in finding that they are part of the ALF or in finding that it is appropriate they should be represented in this case as part of the ALF.[65]I have set out above the two safeguards which now exist to protect individuals from undue association with the effects of a representative order. In my view, those are a key means by which the law can ensure that no injustice is done to specific individuals in the context of a representative action.[66]Finally, it seems to me required by the over-riding objective under the Civil Procedural Rules of dealing with cases justly, that the device of concealment should not permit the ALF to avoid the effects of the civil law. For that reason, CPR Rule 19.6 should be interpreted so as to enable civil law to be effective if injustice to any individual can be avoided.[67]My answer to this question is an unequivocal “yes”. Indeed, it is difficult to see who could better represent an unincorporated association apart from its chosen public spokesman. In any event, for all the reasons I have set out above, I find that Robin Webb is a central and pivotal figure in this organisation, who is fully adherent to its aims, strategy and tactics.[68]I would answer this question in the negative. For the reasons set out elegantly by Gross J in the Edo case it seems to me unsatisfactory to permit an unincorporated association, which by definition is not a legal person, to be sued other than through a legal person. If that is possible, what is the meaning of the concept of a “legal person”?[69]I recognise that there is a counter argument which could be developed, based on the speech of Lord Lindley in the Taff Vale case which I have set out above. I do not regard this question, in the event, as material to the outcome in this case.[70]As I have indicated above, there may be a real distinction to be made, as to how the law can treat an unincorporated association for the purposes of injunctive relief, as opposed to a claim for damages. However, given the conclusions I have reached earlier in this judgment, the question becomes academic for the purposes of this case. Since it may be a difficult question to answer properly I propose to make no finding.[71]In the course of argument in this point, Miss Harrison for Mr Webb asked me to find that an injunction would impinge upon Mr Webb’s freedom of speech and that his rights pursuant to Article 10 the European Convention of Human Rights were engaged. She cited to me the case of Surek and Ozdemir –v- Turkey (8 July 1999) That case was concerned with the reporting of views sympathetic to violent terrorist action in favour of Kurdish nationalism in the south eastern region of Turkey.[72]In my judgment, the Surek case is concerned with something clearly distinguishable from the activity of Mr Webb. There is a world of difference between a reputable journalist reporting extremist views on the one hand, and on the other hand a concerted and considered attempt to build up a threat so as to apply pressure to people, as part of a strategy linked directly to those committing crimes. Mr Webb is not a journalist keeping the public informed. He is a propagandist, who strives day after day to maximise and potentiate the effect of criminal acts on the minds of those whom he wishes to frighten. I have not the slightest difficulty in separating the one from the other. Nor have I the slightest difficulty in finding that Mr Webb’s activity goes far beyond legitimate self expression. This distinction is not really affected by Mr Webb’s careful and considered use of language. He is adept in public communication at maximising the impact of what he writes and says, while keeping a weather eye on how the literal words may be used so as to dance around the risk of an incitement charge. It is also relevant to observe the frequency and repetition of his statements. Day after day for years, as the evidence makes clear, he has persisted in seeking to maximise the effect of criminal activity.[73]In my judgment, there is nothing in the injunction sought to be continued which impinges on Mr Webb’s legitimate freedom of speech. Irrespective of the outcome of the argument on representative proceedings, Robin Webb should remain a Defendant and remain subject to the Injunctions in this case.[74]The answers to the questions set out above mean that the ALF are a party to this litigation, represented by Robin Webb, and that he should be a Defendant in his own right. The existing injunctions continue as against the ALF and Mr Webb. The Parties have permission to apply to the Court for any necessary consequential orders or directions.

Cited in 7 later judgments