Novartis Pharmaceuticals UK Ltd & Ors v Stop Huntingdon Animal Cruelty ('SHAC') & Ors [2009] EWHC 2716 (QB)

[2009] EWHC 2716 (QB)Case No HQ06X03887
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/10/2009
Before
MR JUSTICE SWEENEY
Between
Novartis Pharmaceuticals UK Limited (for and behalf of all members of the Novartis Group of Companies who retain employees pursuant to CPR 19.6)ClaimantsAndrew Roy Grantham (for and on behalf of the employees of the Novartis Group of Companies and the protected persons (as defined) pursuant to CPR 19.6)ClaimantSTOP HUNTINGDON ANIMAL CRUELTY (‘SHAC’) (by its representative Dr Max Gastone acting for and behalf of the members of SHAC and all protestors conducting activities against the Claimants pursuant to CPR 19.6)DefendantsGreg AveryDefendantNatasha AveryDefendantHeather JamesDefendant
Tim Lawson-Cruttenden (instructed by Lawson-Cruttenden) for ClaimantsDr Max Gastone (litigant in person) for DefendantsHearing Hearing dates: 20th,28th and 29th October 2009
Judgment
[1]The Claimants apply pursuant to CPR 3.1(7), CPR Part 25 and Section 3 of the Protection against Harassment Act 1997 (‘the 1997 Act’), to amend the terms of an interim injunction (referred to hereafter as ‘the injunction’) granted by Blake J on 29 January 2008, and continued by me on 21 October 2009, when by consent I ordered Summary Judgment on the claim for final injunctive relief, and adjourned determination of the final terms of the order until not before 9 February 2010.[2]The First Claimant is a pharmaceutical company and represents (pursuant to CPR 19.6) all members of the Novartis Group of companies who retain employees. The Second Claimant is the Head of Security of the First Claimant, and represents (again pursuant to CPR 19.6) the employees of the Novartis Group of companies, and also the Protected Persons (as defined in the injunction).[3]The Defendants are animal rights activists who consider that they have a connection with Huntingdon Life Sciences (‘HLS’), which conducts clinical testing on live animals. As I have already indicated, the Defendants’ stated aim is to close down HLS. The Claimants are secondary targets of this campaign. The First Defendant Stop Huntingdon Animal Cruelty (‘SHAC’), its members and all protestors conducting activities against the Claimants are represented (again pursuant to CPR 19.6) by Dr Max Gastone. The Second, Third and Fourth Defendants are prominent founding members of SHAC. All three are currently serving long sentences of imprisonment imposed by Butterfield J in the Crown Court at Winchester in January 2009 for an offence of conspiracy to blackmail arising out of their activities in connection with the SHAC campaign against HLS and other secondary targets – including the Claimants. In his sentencing remarks, Butterfield J described the Second, Third and Fourth Defendants as “life long, veteran, fanatical animal rights activists”. He made Anti-social Behaviour Orders against all three, until further notice, protecting the Claimants and others. The Second, Third and Fourth Defendants have been served with the action, but have given no indication of any desire to take any part in these proceedings.[4]The injunction restrains protestors (as defined in the injunction) from pursuing a course of conduct which amounts to harassment of protected persons (as also defined in the injunction) contrary to the 1997 Act. In particular the injunction forbids assaulting, molesting, harassing, threatening, or otherwise interfering with, the protected persons; photographing or videoing them or their vehicles; making any threatening communication of any type, or publishing in any way any material serving to identify a protected person. The injunction also prohibits compelling any protected person not to do something that he is entitled or required to do, or to do something that he is not under any obligation to do. The injunction goes on to identify premises around which it creates exclusion zones in which, subject to strictly limited exceptions, picketing, demonstrating or loitering are prohibited. The exceptions are that at the First Claimant’s business sites, including its principal site in Horsham in Sussex, demonstrations, protesting or other animal rights related activity are permitted to take place once a week with strict limitations as to notice, numbers, timing, precise location, and the use of amplified sound. Finally, the injunction provides, again on strict terms, that not more than once a month a lawful and peaceful procession on the public highway may enter any or all of the exclusion zones, and that once a year at the Horsham site there may be an assembly, (as defined in the Public Order Act 1986 [‘the 1986 Act’], or otherwise), provided that appropriate notice is given to the Police, and that there is strict compliance with any conditions laid down by the Police under section 14 of the 1986 Act.[5]The Claimants are on notice that the annual assembly at the Horsham site is to take place tomorrow on Saturday 31 October 2009, which is, of course, Halloween, and equally obviously only shortly before bonfire night.[6]In view of their concerns about the forthcoming assembly the Claimants contend that the injunction should be amended in accordance with their latest draft, as follows:- “7.9.3 for the avoidance of doubt no assemblies or processions whatsoever shall take place as defined by the Public Order Act 1986 or otherwise, other than those assemblies that may be permitted under the terms of sub-paragraph 7.8 above PROVIDED THAT one assembly may take place once every calendar year at the Horsham site only PROVIDED THAT the Protestors shall have first notified the police not less than 6 working days beforehand AND there be strict compliance with any conditions laid down by the police under s.14 of the Public Order Act 1986;… 7.10 At any public order assembly or procession which may take place on 31 October 2009 and in order to prevent the Claimants’ employees from being harassed or caused anxiety, alarm and/or distress; the protestors must not:-7.10.1 Wear or carry balaclavas, face coverings, masks (whether skull, death, ‘Scream’, Halloween or otherwise) and/or blood splattered clothing or costumes;7.10.2 Carry, unfurl and/or exhibit banners, signs, posters and/or placards and/or wear clothing which alleges that the Claimants and/or its employees murder, torture, abuse and/or otherwise unlawfully kill animals;7.10.3 At any time carry or ignite fireworks or carry or operate pyrotechnics. 7.11 The provisions set out in sub paragraphs 7.10.1 and 7.10.2 shall, on 31 October 2009, commence at the time and place of the first arrival of protestors at the designated assembly area and shall cease at the time and place of the last dispersal of protestors from the designated dispersal area and/or for the duration of any assembly or procession which takes place between those times and shall be subject to any reasonable determination by the senior police officer present as to the time at which any assembly or procession commenced and finished. 7.12 The senior police officer present may exercise his/her reasonable discretion (in accordance with the Public Order Act 1986, the Protection from Harassment Act 1997 and any related legislation) in determining not to enforce any of the provisions set out in sub paragraphs 7.10.1 and 7.10.2 9 There be substituted service of this Order herein on the Defendants by:-9.1 Service by email on SHAC by serving Dr Gastone on (e-mail address)9.2 Service by email on Debbie Vincent on (e-mail address)9.3 Service by email on (e-mail address)9.4 Service on SHAC at info@shac.net9.5 Exhibiting on posts in prominent positions in Horsham Park, along Albion Way, Carfax, Blackhorse Way, North Road, Wimblehurst Road Parsonage Road and at local train, bus and coach stations 10. Additional service by email on Sussex Police at (e-mail address)”[7]On behalf of the Claimants, Mr Lawson-Cruttenden submits, in summary, that in the course of various cases before the Courts, both civil and criminal, over the last decade or so, and in particular since January of this year, it has been established that the Defendants have close links with one or more animal rights terrorist groups, with whom they act in a concerted fashion, to seek to bring pressure on HLS and its employees, and also on companies, associated whether directly or indirectly, with HLS and on the employees of such companies, with the avowed intention of closing down HLS. The Claimants assert that, typically, the concerted action involves the terrorist element carrying out direct, and generally covert, unlawful action against HLS, associated companies, and their employees, preceded, and or followed up by, overt harassment of the employees by the Defendants. In the result, the Claimants submit that the Defendants are persons without respect for the law who act, not in pursuit of any political or public interest cause, with the particular Article 10 sensitivities that that involves, but rather who are acting in a concerted quasi terrorist manner to seek to bring down the Claimant companies who are doing no more than what the law in this country requires of them in relation to animal testing, which is conducted in a strictly controlled environment, and means that the Claimants’ conduct of such testing is unquestionably lawful.[8]In particular, the Claimants rely on actions against their employees worldwide over the last 9 years of the campaign against them, both before and after Blake J’s order in January 2008; on events shortly before and at the first permitted annual assembly at Horsham which took place on 26 April 2008; and on actions against their employees worldwide, including in this country, since April 2008. The Claimants further submit that against that background, it is clear that the choice of Halloween for the annual assembly at Horsham, and the proximity to bonfire night are no coincidence, but rather a clear portend of the Defendants’ intention to use the occasion to commit crimes and/or torts in order to harass the First Claimants’ employees yet further in various different ways, not specifically covered in the injunction to date, namely by wearing balaclavas, face coverings, masks (whether skull, death, scream, Halloween or otherwise) and/or blood splattered clothing or costumes, or exhibiting banners, signs, posters and/or placards, and/or wearing clothing, which have slogans on them which allege that the Claimants and/or its employees murder, torture, abuse and/or otherwise unlawfully kill animals, but which would contravene the 1997 Act. The Claimants further assert, that notwithstanding the presence of the Police in numbers at the forthcoming assembly, and the breadth of powers available to the Police to deal with any criminal activity and/or breach of the injunction as currently drawn, the conduct of the Police hitherto causes the Claimants to believe that the Police will not protect its employees from further harassment, the Police being more interested in getting through the assembly and procession with the least possible raising of the public order temperature, unless the injunction is amended in the ways now contended for, which Mr Lawson-Cruttenden asserts would involve only very limited inroads into the First Defendants’ Article 10 and 11 rights.[9]The First Defendant, by its representative Dr Gastone who has presented his arguments with commendable clarity and moderation, submits, in summary, that:- i) Although, by consenting to summary judgment as he did on 21 October 2009, he accepted that final injunctive relieve is, in principle, appropriate, because there has been a criminal element to the First Defendant’s conduct in the past, the application to amend goes far too far, and is in effective a thinly disguised attempt to seek to achieve amendments at this interlocutory stage in order to be able to rely on them in argument in this and other cases as to the terms of final orders. That is underlined, he submits, by the fact that the application originally sought to apply the amendments to cover all protests the subject of the injunction wherever or whenever they were to take place. It is all too late, and too difficult, he suggests, and thus the application should be refused. ii) That a number of factual assertions relied upon by the Claimants are wrong, and (in particular) that the Claimants’ assertions as to the events at the first annual assembly at Horsham last year have been significantly overstated – as revealed, not least, by a statement from Chief Superintendent Parrott of the Sussex Police who was the Silver Command in charge of the policing of the assembly. iii) In any event, the Police will be at the assembly in large numbers in order to ensure compliance with the criminal law, including the 1997 Act, and also to ensure compliance with the present terms of the injunction. iv) That thus, on a true assessment of the evidence before the Court, and given the First Defendants’ rights of freedom of expression and freedom of assembly enshrined in Articles 10 and 11 of the ECHR, the Claimants’ proposed amended terms are simply not proportional, and the balancing of rights on both sides comes down clearly in favour of the rejection of the application.[10]I should add that, in part because he is unwell, and in part because of the expense involved, Dr Gastone was not able to travel down from the North of England yesterday, although he was present and made his submissions the day before. In the event, although I sat, briefly, yesterday afternoon, all relevant submissions yesterday on both sides were made by e-mail.[11]Against that background, I now propose to deal with matters under the following headings:- i) Background ii) The evidence iii) The law iv) Conclusions[12]This action was begun, indirectly, by the Chiron Corporation Limited and associated companies (‘the Chiron Group’) against the same Defendants in early 2004. First and second interim injunctions were granted respectively by Hallett J (as she then was) and Royce J in February and March 2004 – see the judgment of Royce J [2004] EWHC 493 (QB). In June 2004 the action was stayed to await the outcome of an action brought by HLS itself. In April 2006 the Novartis Group acquired the Chiron Group, in a takeover. An action was then begun by the Novartis Group against the Defendants, and on 24 January 2007 Underhill J granted an interim injunction – see [2007] EWHC 592 (QB). In November 2007 both the Chiron Group and Novartis actions were ordered to come on for trial only after the completion of an action brought by Oxford University – which has yet, in fact, to be completed. In January 2008 Blake J subsumed the Chiron Group action and its interim injunction into the Novartis action and, as I have indicated, granted the injunction – see [2008] EWHC 410 (QB).[13]There have been a number of actions, brought by HLS and other companies, seeking to restrain the activities of the Defendants and others. An action brought by HLS itself was tried by Holland J in 2007 – see his judgment at [2007] EWHC 522 (QB). An injunction was granted against both SHAC and other protestors (as then defined in that injunction).[14]In BayerCropScience Limited v SHACand others (the same Defendants as in this action), Treacy J granted an interim injunction on 23 April 2008 – see [2008] EWHC 1069 (QB). Treacy J concluded, amongst other things, that:- i) The evidence before him, including materials about Novartis downloaded from the SHAC website, showed that SHAC was part of a campaign against HLS and others. ii) An article by one Kevin Jonas, an American member of SHAC, entitled ‘Bricks and Bullhorns’ and another article downloaded from the SHAC website, showed that SHAC’s activities were linked closely to those of the Animal Liberation Front (‘ALF’) and others, in an attempt to bring down HLS by legal and illegal means. iii) There was also a link between SHAC and a website called Bite Back which advocated and reported illegal actions, in particular by the ALF, in connection with the pursuit of animal rights, which SHAC adopted and condoned. iv) Dr Gastone was still an active protestor.[15]In passing sentence on the Second, Third and Fourth Defendants, and others, in January 2009 at the Winchester Crown Court, Butterfield J said, amongst other things, as follows:- “..Each of you is passionately opposed to the use of animals in research laboratories. I accept that for each of you the principal motivation for your blackmail was not financial or other personal gain, but stemmed from your genuinely held concerns about cruelty to animals. You have every right to hold those views, every right to express them and every right to protest against the law that requires medicines to be tested on animals. Freedom of expression and the right to lawful protest are important rights. But so is the right to conduct vital biomedical research in ways not really permitted but required by our law, and so is the right of business to carry on lawful trading with companies carrying out that research. You, Greg and Natasha Avery and Heather Nicholson, decided that lawful protest, reasoned argument and the use of political pressure was not going to achieve your clear ambition to close down Huntingdon Life Sciences. And so you embarked on a campaign of terror, persecuting and harassing the employees of any company whom you even suspected of having links with Huntingdon Life Sciences so that, you hoped, they would cease trading with the laboratory thereby ultimately bringing down Huntingdon Life Sciences. You cloaked your activities with what, in my judgment, was a hypocritical sham pretence that SHAC, the organisation you three set up, was a vehicle for legitimate lawful protest in an area of public concern. It was nothing of the sort. It was a vehicle used to terrorise ordinary, decent traders carrying on perfectly lawful businesses. You developed a highly organised, well researched and meticulously executed plan of attack. You used deception to find out which companies were actually connected with Huntingdon Life Sciences as its clients, its suppliers or contractors working for them. Once you discovered or even suspected that a company or business was connected with the laboratory, the company would be contacted, the work of HLS explained to them and they would be invited to stop trading with the laboratory. If they agreed, and many did for fear of what might happen if they did not capitulate, that was that. If not, the name, address and other contact details of the company were published on the SHAC website. In addition, you ascertained the home addresses and other personal details of senior employees of the companies. How you achieved that has not been for the most part revealed by the evidence, but your intelligence, the fruits of the research carried out by you or on your behalf, gave you information about ex-directory telephone numbers, the names of the wives and even the children of some of the employees, the days on which their bins were emptied and the extent of any security measures in place at their homes. The consequence of publication of the company details on the website was that the company and its employees became the target of criminal activity. You used all the tactics and more. Tactics described in detail in the urban terrorists’ handbook, the so called ABIX 4 document. You, or those working under your direction and control, embarked upon a ruthless, sustained campaign designed to strike such fear into the minds of the employees that the companies would ultimately capitulate in the face of your intimidation. The criminal activity included making false allegations of paedophilia, which were circulated to neighbours of the employee, and sending hoax bombs to the business premises or home addresses of an employee; hoax bombs which were extremely realistic and which resulted in the bomb squad having to attend to deal with the packages. The activity also included the sending of sanitary towels allegedly contaminated with the AIDS virus, demonstrations and damage at the homes of members of staff, threats or actual criminal damage to property, threat of physical assault, threatening and abusive telephone calls, emails and letters, repeated silent calls often in the middle of the night, delivery of unwanted material from mail order companies and the co-ordinated sending of emails or telephone calls so as to block the company’s systems. Then there were the demonstrations outside company premises and disruptive trespasses into company premises. Video footage of those demonstrations were taken by demonstrators and I have seen a number of them. There is little if any attempt to explain the cause SHAC promoted. The demonstrations were designed quite simply to create a climate of fear at the company. There were often violent and abusive words shouted through megaphones at staff. The video cameras were pointed at staff and at the registration numbers of their parked cars in order to suggest that their homes would be identified for future violence there. There were threats to get the staff, to target them personally, even to kill them; many of the staff being women who were plainly very frightened at what was happening. ..The effect of this relentless, sustained, merciless and ruthless persecution was as serious as it was inevitable. There was evidence before the jury of the targeting of employees of no less than 40 separate companies over a six year period. Many of the employees of those companies were deeply affected by what you organised. When a hoax bomb is sent to a company and the premises are evacuated and the bomb squad attends, it is not just the senior management who are affected, it is all the staff. There was evidence that in at least one company counselling had to be arranged for some of the staff, so disturbed were they by what had happened. The climate of fear…would permeate a whole organisation just as you intended: when are they coming back; what will it be next time? And so much worse for the individuals who were targeted at home. …I accordingly propose make an Anti-social Behaviour Order essentially in the terms sought by the Crown. In making that order, and determining the terms and length of it, I have had regard to the submissions made, first that such an order is inappropriate, it is not necessary to protect persons from further acts likely to cause harassment or distress, particularly when on release each of you will be subject to licence conditions; and further, when the effect of the custodial sentences on your attitudes and behaviour cannot be known. I reject that submission for reasons that I have already sufficiently expressed. Second, objection is taken to the inclusion of paragraph 1 on the grounds that the prohibition will prevent those of you affected by it from engaging in lawful campaigning and protest and as such is not proportionate and is in breach of your human rights under Article 10 and 11. Further it is said that paragraph 1 is insufficiently clear in its terms and would not enable a breach of the order to be readily identified. I reject these submissions. In my judgment, your conduct during demonstrations outside victim company premises and your incitement, organisation and encouragement of criminal activity at every opportunity, including on the SHAC website, makes it abundantly clear that such an order is essential. The meaning of paragraph 1 is obvious and plain. By your conduct you forfeit your Article 10 and 11 rights in this discrete and specific area f protest. They remain intact, of course, in relation to any other area of protest.”[16]In SmithKline Beecham PLC and others v Greg Avery, Webb and Gastone (as representative with Avery of all persons acting as members participants or supporters in the name of SHAC) there was a trial before Jack J earlier this year. He gave judgment granting an injunction on 26 June 2009 – see [2009] EWHC 1488 (QB). Jack J set out the evidence in that case of the campaign against SmithKline by both SHAC and the ALF. Jack J accepted, and Dr Gastone effectively conceded, that the evidence in the Winchester Trial made it impossible to contend that SHAC is an entity whose operations stay within the law. Jack J further concluded that Dr Gastone was still an active member of SHAC, indeed that he was a central figure in it, who favoured criminal conduct as a means to the animal rights end and encouraged others to adopt it. In particular, Jack J found that Dr Gastone was the author of an article entitled ‘SHAC attack’ published in a magazine called Do or Die magazine, which urged, amongst other things, visits to the homes of employees of target companies. Jack J refused leave to appeal in that case. Dr Gastone has told me that he is seeking to obtain Legal Aid in order to mount an application to the Court of Appeal, but that thus far no application has, in fact, been made.[17]On 23 July 2009, Hamblen J granted summary judgment to the Claimants in the BayerCropScience case, to which I have already referred. In so doing, Hamblen J relied upon the following:- i) The effective acceptance in the HLS and SmithKline Beecham cases that the Claimants were entitled to an injunction, combined with a concession by Dr Gastone in the BayerCropScience case itself that an order was going to be made. ii) The analysis by Treacy J (above) of the evidence in the case. iii) Evidence of the Defendants’ activities since Treacy J’s order in April 2008. iv) The trial and conviction of the Second, Third and Fourth Defendants at the Winchester Crown Court, and the sentencing remarks of Butterfield J. v) The judgment of Jack J (above) in the SmithKline Beecham case.[18]It was against that background, that Dr Gastone realistically conceded the principle of Summary Judgment before me in this case too.[19]In addition to the judicial findings to which I have already made reference, the evidence before me as to the background prior to April 2008 includes the following:- i) The Kevin Jonas article (above) entitled Bricks and Bullhorns (Volume A Tab 8 page 111) which sets out a strategy for combining covert unlawful action with overt protest with the joint aim of thereby instilling fear, harassment and terror in its victims. ii) Dr Gastone’s article ‘SHAC Attack’ (Volume I Tab 552 at page 974) in which he refers to SHAC’s tactics as boiling down to three things –(i) putting the fear of God into them;(ii) costing them financially;(iii) dragging their name through the dirt. iii) An entry on the SHAC website dated 23 February 2004 (Volume D Tab 3 page 7) setting out its then history since November 1999, and making it absolutely clear that it is not a political campaign, but rather part of a concerted unlawful attack on HLS and others, as further demonstrated by a message to all HLS clients at Volume D Tab 7 page 44. iv) An entry on the SHAC website on 27 April 2007 (Volume F Tab 265 page 539) explaining both its tactics and its links to the ALF, including how to continue the culture of fear at demonstrations. v) Various website entries and other documents indicating that a person dressed in military style clothing and wearing a balaclava is a symbol often used by the ALF. vi) An article dated 30 January 2007 (Volume K Tab 8 page 99) on a website called ‘Bite Back’ (often used by the ALF) showing use by the ALF of the slogan “Until every cage is empty”, as well as various examples of their regarding those involved in animal testing as being torturers, murderers and so forth. vii) A Schedule (Volume A Divider 3) which summarises the evidence in relation to incidents relating to the Claimants since 2000.[20]As to the events before and at the march on 26 April 2008, the evidence includes the following:- i) In the days leading up to the march there were covert unlawful attacks at the homes of four employees of Novartis – see the Bite Back website pages at Volume G Tabs 393 and 396. ii) Photographs (Volume K Tab 8 page 71) showing 7-8 activists at the march wearing black hoodies and face masks and carrying a banner with the slogan “Until every cage is empty” and the website address ‘Directaction.info’ (a website which gives direct support to the ALF). The banner also had a distinctive two flag logo, which the evidence shows has been adopted by a group calling itself Antispeciesist Action, which the evidence also shows engages in unlawful activities in the animal rights field. It is also clear that, more recently, SHAC itself has also adopted the same two flag logo – see e.g. Volume K Tab 8 page 81 and 82. iii) The Second Claimant himself states that there were some 350 protestors on the march, and over 100 police officers. He asserts that whilst the marchers were halted outside the First Claimant’s premises, there was rocking of the police barriers to the extent that it looked as though they were going to be overturned, and that subsequently there was a further disturbance as the protestors returned to their gathering point in a local park. As to the barriers incident, he also points to website pages claiming that many barriers were left broken – see Volume K Tab 8 pages 67-69. iv) In contrast, the First Defendant relies on evidence from three witnesses who were on the march – Ian Harvey, Debbie Vincent, and Leah Phillips. They say that those on the march varied from adults in their 60s and 70s to young children, and that all passed off peacefully save for about 5 minutes pushing and shoving in relation to the barriers outside the First Claimants’ premises, and an incident near the assembly area when a member of the public who was the worse for drink took exception to the march, but that that incident was minor and was soon dealt with. v) At the instigation of the Court, Chief Superintendent Parrott of the Sussex Police, who was the Silver Commander on 26 April 2008 made a witness statement. He makes it clear that, from the police perspective, the march was peaceful, albeit that there was a degree of chanting, and that the organisers and SHAC stewards helped to control the participants. He nevertheless described a fairly determined attempt to interfere with the Police barriers outside the First Claimant’s premises, but said that no arrests were made. He described the incident in the park as being a minor incident of friction.[21]As to the events since 26 April 2008, the evidence includes the following:- i) The Schedule (Volume A Divider 3 from page 54 onwards) which summarises the evidence in relation to a number incidents of escalating seriousness against the First Claimants’ employees abroad, and also two incidents in the Horsham area relating to employees of the First Claimant in September 2008 and May 2009 – one of the Horsham victims being one of those who was also the subject an attack in the run up to 26 April 2008. ii) Photographs taken on 27 October 2008 (Volume K page 83/5) of protestors in the vicinity of one of the First Claimant’s premises wearing ghoulish masks, and other images of protestors wearing coats splashed with false blood. iii) Whilst there have been no unlawful attacks on Novartis employees in this country since May 2009, there have been recent attacks on employees of another company which is a target of SHAC.[22]It was those recent attacks, and publicity about them in a report on the Bite Back website on 14 October 2009, together with a ‘call to arms’ on that site and on the directaction.info website, combined with the announcement on the First Defendant’s website of the intended demonstration on 31 October (including the use of skeleton masks, zombie suits and blood splattered lab coats) which caused the Claimants to lodge this application on 14 October.[23]Whilst there is no evidence before me as to how many employees will be present at the First Claimant’s premises on Saturday, Mr Lawson-Cruttenden asserts that there will about 40, and that other employees are likely to be going about their lives in the centre of Horsham during the course of the day.[24]At the Court’s request, after the conclusion of the hearing on 28 October 2009, the then latest version of the proposed amendments was e-mailed to the Sussex Police, and they were again invited to make any comments they wished in order to assist the Court.[25]A helpful reply was received on 29 October from Superintendent Davies, who was the Gold Commander in April 2008, and is designated to be so again on Saturday. Superintendent Davies makes clear that, given the shortness of time involved, the views that he expresses are necessarily and entirely his own alone.[26]He raises what are, in my judgment, sensible concerns as to the practicalities of enforcing a number of the amendments sought, in particular those in relation to banners and clothing, and points out that the Chief Officer has not pre-authorised any conditions under sections 12 and 14 of the Public Order Act 1986. He states that only a small portion of those attending last year wore masks, and that they were the individuals who were involved in the incident at the Police barrier outside the First Claimant’s premises. He indicates that pre-authorisation for the seizing of masks has been discounted this year, but that it could be authorised on the day, if circumstances demanded it. He indicates, unsurprisingly, however that the practical implementation of such action on the day would need to be very carefully applied, and would require significant police resources at the early stages of the assembly, which has the potential to raise tension, and thus (I would add) the risk of disorder. He also points out that the Police have statutory powers in relation to fireworks, and that he would expect those powers to be invoked should fireworks be used.[27]Finally, Superintendent Davies produces a document entitled ‘Statement of Policing Style and Intervention Policy’, which he drafted. The content of this document sets out the balancing of various peoples’ rights which the Police Operation seeks to respect, and although Article 8 is not referred to in terms, the document recognises that:- “..The business of Novartis is lawful and the company and its employees, agents and partners have the right to conduct that business free from intimidation, harassment and free from unnecessary and unjustifiable disruption.”[28]Thus, although a subsequent e-mail from PC Day (on behalf of Superintendent Davies, who by then was unavailable), indicated that Article 8 would not normally be a consideration in their Policing Style as it does not form part of the plan, it is clear from the extract quoted above that, in fact, Article 8 type considerations in relation to the Claimants are clearly taken into account.[29]It must also be noted that later in the document, the following policy is set out:- “There is presumption that all offences, however minor, if witnessed by or brought to the attention of a police officer, will be dealt with should the officer be in a position to do so given the circumstances. The way in which this behaviour will be dealt with is at the discretion of the officer involved and can range from verbal warning to arrest, but there should be no tolerance of criminal offending. There will be a presumption of arrest for any offence that has a personal and individual victim.”

The Law

[30]Article 8 of the ECHR provides as follows:- “8(i) Everyone has the right to respect for his private and family life, his home and his correspondence. (ii) There shall be no interference by a public authority with exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”[31]As Dyson LJ explained in Connolly v DPP [2007] EWHC 237 (Admin), generally speaking members of the public have the right to be protected from material intended to cause them distress or anxiety whether in the privacy of their own homes or in the workplace. It all depends on the circumstances. The more offensive the material the greater the likelihood that such persons have the right to be protected from receiving it. Much is likely to turn on the position of the recipient.[32]Section 1(1) and (2), and section 7 of the 1997 Act provide as follows:- “1. Prohibition of Harassment i) A person must not pursue a course of conduct(a) which amounts to harassment of another; and(b) which he knows or ought to know amounts to harassment of the other. ii) For the purposes of this section the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. 7. Interpretation of this group of sections i) This section applies for the interpretation of sections 1-5 ii) Reference to harassing a person includes alarming the person or causing the person distress. iii) A course of conduct must involve conduct on at least two occasions. iv) Conduct includes speech.” i) A person must not pursue a course of conduct (a) which amounts to harassment of another; and (b) which he knows or ought to know amounts to harassment of the other. ii) For the purposes of this section the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. i) This section applies for the interpretation of sections 1-5 ii) Reference to harassing a person includes alarming the person or causing the person distress. iii) A course of conduct must involve conduct on at least two occasions. iv) Conduct includes speech.”[33]Section 3 of the 1997 Act provides:- “Civil Remedy i) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question ii) On such a claim damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from that harassment iii) Where(a) in such proceedings the High Court or a County Court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment; and(b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction the plaintiff may apply for the issue of a warrant for the arrest of the defendant. iv) An application under sub-section 3 may be made (a) where the injunction is granted by the High Court to a judge of that court; and (b) where the injunction was granted by a County Court to a judge or District Judge of that or any other County Court” i) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question ii) On such a claim damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from that harassment iii) Where (a) in such proceedings the High Court or a County Court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment; and (b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction the plaintiff may apply for the issue of a warrant for the arrest of the defendant. iv) An application under sub-section 3 may be made (a) where the injunction is granted by the High Court to a judge of that court; and (b) where the injunction was granted by a County Court to a judge or District Judge of that or any other County Court”[34]Article 10 of the ECHR provides that:- “10(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”[35]Article 11 of the ECHR provides that:- “11(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. (2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”[36]Both at common law, and now under the Human Rights Act 1998 and the Convention, freedom of speech or expression, and freedom of assembly and association, constitute rights jealously safeguarded by English law. As Sedley LJ put it in Redmund-Bate v DPP 7 BHRC 375 at pp 382-3:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the Convention has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy…”
[37]As the wider authorities make clear, any restrictions on the rights of freedom of expression, and/or of freedom of assembly and association, must be:(i) convincingly established;(ii) justified by compelling reasons;(iii) subject to careful scrutiny;(iv) proportionate and no more than necessary.[38]There are, however, cases, as Articles 10 and 11 themselves contemplate, where it is proper to impose restrictions on these fundamental rights. As Sir Thomas Bingham MR (as he then was) put it in Burris v Azahani [1995] 1 WLR 1372 at page 1380:- “Respect for the freedom of the aggressor should never lead the court to deny necessary protection to the victim.”[39]Further, as Grigson J observed in The University of Oxford and others v Broughton and Others [2004] EWHC 2543 at paragraph 80:
“The right of freedom of expression is not to be exercised in a vacuum created by the assumption that only the views of the animal rights movement are correct. Those who believe that experimentation on live animals is both morally and scientifically justified also have the right of freedom of expression. Further such people and those who, in the broadest sense, work for them have the right to respect for their private and family life, their homes and correspondence under Article 8.”
[40]There can be little doubt that at least the primary intention of the 1997 Act was to deal with the phenomenon of ‘stalking’. However, as will be clear from what I have already said, there have now been a number of instances where injunctions have been granted under the 1997 Act restraining harassment in ‘animal rights’ and other cases. Whilst there is understandable concern that an Act passed to combat stalking should not be used to clamp down on rights of protest and expression, it is also true that there comes a point when protest and expression may cross the line into harassment. That said, considerable care is required in applying the 1997 Act to situations of public protest. The drawing of lines in this regard involves intensive factual enquiry, and difficult questions of degree. ‘Harassment’ is however not confined to acts which place the victim in fear of violence, or only to conduct which alarms or causes distress, albeit that normally it must be unlikely that conduct which does not amount to that will be restrained by interim injunction. Equally, the fact that individuals or associations now express their objectives in more guarded terms than hitherto cannot confer an immunity from injunction under the Act, if it is established that their conduct or the apprehension of their conduct otherwise warrants it. Section 3(1) of the 1997 Act bites on ‘actual or apprehended’ breach of section 1, and there must, of course, be a proper evidentiary basis for the apprehension.[41]The relationship between the availability of the criminal law and the use of a civil injunction under the 1997 Act have a part to play in any consideration by the court. However any argument that an injunction should only be granted or amended if, and insofar as, the police were unable to control any protest using the available means of the criminal law, is too simplistic. As Grigson J put it in The University of Oxford case (above) at paragraph 39:
“..This submission is flawed as it confuses the terms of a civil injunction with the ingredients of a criminal offence..The purpose of this injunction is to prevent harassment as defined by the Act taking place. To that end, the restraint is designed to prevent acts which may, if continued, constitute the full offence. It would be pointless otherwise. If the Claimants had to wait for the full offence to be committed, they could rely upon the criminal law, but the criminal law acts retrospectively. A civil injunction is prospective. Necessarily, an injunction is designed to catch acts which are less than the full offence. Consequently, the courts have the power to grant injunctions in wide terms to prevent the harassment of a class of persons, for example, the employees of contractors or sub-contractors, so that they may go about their lawful business.”
[42]That said, a consideration of the available means of the criminal law may provide assistance in shaping the appropriate width of any injunction granted. The statutory powers of the police to control public processions and assemblies were the subject of penetrating analysis by Lord Bingham in Regina (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 at paragraphs 18-26 and 46, which I adopt. In particular, he refers to section 60AA of the Criminal Justice and Public Order Act 1994, as amended, which provides that when an appropriate authorisation is given, a constable in uniform may require any person to remove any item which the constable reasonably believes that that person is wearing wholly or mainly to conceal his identity, and may seize any item which the constable reasonably believes any person intends to wear wholly or mainly for that purpose.[43]In addition, sections 145 and 146 of the Serious Organised Crime and Police Act 2005 now make it criminal offences to interfere with contractual relationships so as to harm animal research organisation, and to intimidate persons connected with animal research organisation.[44]As to the relevant test for the amendment of an interim injunction, this must, in principle, be the same as for an interim injunction itself. As the amendments sought have an obvious impact on the right to freedom of expression thereby engaging section 12(3) of the Human Rights Act 1998 and Cream Holdings Ltd v Banerjee [2005] 1 AC 253, an amendment should not be granted unless the court is satisfied that it would probably be granted at trial. The key issue is that of the apprehension of risk of future action, which involves an exercise of judgment and evaluation. As with any prior restraint on freedom of expression, it requires the most careful scrutiny.[45]As Lord Bingham put it, when considering statutory interference with Article 10 rights in R v Shaylor [2003] I AC 247 at paragraph 23:
“It is plain from the language of Article 10(2) and the European Court has repeatedly held, that any national restriction on freedom of expression can be consistent with Article 10(2) only if it is prescribed by law, is directed towards one or more of the objectives specified in the Article, and is shown by the state concerned to be necessary in a democratic society, ‘Necessary’ has been strongly interpreted: it is not synonymous ‘indispensable’, neither has it the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’: Handyside v United Kingdom (1976) 1 EHRR 737, 754, para 48. One must consider whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authority to justify it are relevant and sufficient under Article 10(2):SundayTimes v United Kingdom (1979) 2 EHRR 245, 277-278, para 62.”
[46]Finally, by section 37(1) of the Supreme Court Act 1981 I may only grant an amendment if satisfied that it is just and convenient to do so.[47]Mr Lawson-Cruttenden has been unable to find any case in which a Court has ordered the types of limitation that he invites me to order now.[48]In such a sensitive field as this, that causes me to adopt a cautious approach to his application, albeit that this is very much a fact based exercise. That caution is increased, albeit that Summary Judgment has been granted, because we are still at the interlocutory stage in this case - a stage at which it is generally no part of the Court’s function to try to resolve conflicts of evidence in statements, nor to resolve matters calling for detailed argument and mature consideration.[49]In my view, the evidence before me establishes that i) It is impossible to contend that SHAC is an entity whose operations, in the past, have stayed within the law. ii) Rather, SHAC has in the past been involved in a two pronged campaign, with the ALF and others, designed to bring down companies associated with HLS, and ultimately HLS itself. iii) The two pronged campaign has involved both covert unlawful action by the ALF and others, and demonstrations by SHAC, the combination of which has been intended to harass employees of target associate companies of HLS so that the companies themselves will cease involvement with HLS, which will thereby be brought down. iv) In the past that has included the wearing of masks etc, and the use of banners and clothing manifesting the type of wording now objected to, as well as the wearing of clothing with fake blood on it. v) Therefore, in the past, the SHAC campaign has not been a political or public interest campaign in the sense normally understood in the authorities which accord particular Article 10 and 11 sensitivity to such campaigns. vi) Whilst there were undoubtedly unlawful attacks by the ALF at the homes of four employees of the First Claimant in the lead up to the assembly and procession on 26 April 2008, the preponderance of the evidence shows that the event itself was essentially peaceful, and that though there were a small number of people wearing hoodies and masks who were connected with Antispeciesism Action, nothing said on any banner actually resulted in anyone being incited to commit a significant unlawful act, whether on the day itself or in the immediate aftermath. There is certainly nothing to show a connection between what happened during the event in April 2008, and the two attacks at the houses of employees of the First Claimant in September 2008 and May 2009. vii) Since the successful imposition of injunctions against the First Defendant, and the successful prosecution of the Second, Third and Fourth Defendants, there has been a public toning down of the First Defendant’s position to some extent. For example, in making concessions before the Courts, Dr Gastone has rightly accepted that there has been unlawful action in the past, and during the course of these proceedings has condemned any unlawful conduct in pursuit of SHAC’s aims. The extent to which this marks any real change in the First Defendant’s approach, and conduct, remains to be judged in time.[50]In performing the necessary balancing exercises, I have also taken into account all the various legal principles to which I have made reference above and the following general matters:- i) Notwithstanding the Claimant’s reliance on the evidence of SHAC’s participation in a two pronged strategy, and the continuation of covert attacks on its employees, particularly abroad, there is no objection to the assembly and procession actually taking place, nor to the use of a megaphone, or to shouting, to make the sort of statements which it is sought to prevent appearing on banners and clothing. ii) The assembly and procession may only take place once a year, and last for a relatively short period of time. iii) The participants are already required to comply with any direction given by the Police under section 14 of the Public Order Act 1986. iv) Last year, although preceded by four unlawful attacks, the event was essentially peaceful. v) There will be a substantial Police presence again this year. vi) The Policing Policy seeks, in effect, to balance the rights of all who are likely to be in Horsham on Saturday (as I must), but also makes clear that there should be no tolerance of criminal offending, and a presumption of arrest for any offence that has a personal and individual victim. vii) The employees of the First Claimant have significant Article 8 rights, but the effective policing of such events often requires difficult discretionary judgments to be made on the spot, precisely so that the rights of all are appropriately balanced. viii) In contrast to last year, there have been no unlawful attacks on any of the First Claimant’s employees in this country in the immediate run up to the event. ix) There will only be some 40 employees of the First Claimant on site during the event, together with any others who may happen to be in Horsham generally going about their lawful business. x) It is clear, in view of the nature of the advertising of the event, that the participants are likely to be attending with banners, masks, costumes etc. xi) This application is being made at a very late stage, with all the practical difficulties and consequent likely raising of tensions which the imposition of last minute limitations implies. xii) The assembly and procession is not a political or public interest demonstration (as normally understood) aimed, for example, at politicians in Whitehall, but rather a protest aimed at a number of citizens in Horsham who are employed in work which the law requires to be carried out, and that my approach to the protestors’ Article 10 and 11 rights should be in that light. xiii) It is important that court orders should not make, or be likely to make, a challenging public order situation worse.[51]Against that background, I turn to the amendments sought as follows:- i) Paragraph 7.9.3 There is no objection to the minor amendment in this paragraph, and accordingly it is allowed. ii) Paragraph 7.10. and7.10.1 At this late and interlocutory stage it seems to me that the balance is resoundingly against the suggested requirement that protestors must not wear blood splattered clothing or costumes. It is all too likely that with so little time to warn potential participants, it is, for the sorts of reasons advanced by Superintendent Davies, likely to be practically unenforceable. In any event, it is not, in my view, proportionate. The decision in relation to balaclavas, face coverings and masks is not so clear cut. Those who wore masks last year took part in the incident, such as it was, at the Police barrier outside the First Claimant’s site. Ghoulish masks, of whatever type, have a possible potential to cause anxiety, alarm and or distress, and could be used to seek to disguise the identity of anyone bent on harassing conduct. On the other hand, the implementation of such a blanket prohibition at so late a stage is likely, notwithstanding the discretionary provisions in the proposed amendments at paragraphs 7.11 and 7.12, to cause considerable practical problems for the Police, risk the raising of tensions, and interfere with the rights of those who simply wish to wear inoffensive masks. In any event, as Superintendent Davies has made clear, the Police are well aware of their powers in relation to masks, and are now (at Gold Commander level in the shape of Superintendent Davies himself) aware of the Claimants concerns and rights in relation to masks. Thus again, at this late and interlocutory stage, it seems to me that the balance comes down against allowing the amendment sought in relation to masks too. iii) Paragraph 7.10 and7.10.2 As I indicated earlier, no objection is taken to the use of a megaphone, or to the shouting of the words sought to be prohibited on banners. It seems to me that, again at this interlocutory stage, and notwithstanding all Mr Lawson-Cruttenden’s arguments, the proposition that there is any difference of substance between vocal delivery and banners is untenable. In addition, as Superintendent Davies points out, there are considerable practical difficulties of enforcement at this late stage which the Police understandably raise. Accordingly, in my view, the balance comes down against this proposed amendment too. iv) Paragraph 7.10 and7.10.3 This proposed amendment can be taken shortly. In view of Superintendent Davies’s position, this amendment is clearly not required. It does no more than reflect a protection which is, in effect, already in place.[52]The remaining suggested amendments are thus irrelevant, and it follows that, as I have indicated above, I allow only the amendment to paragraph 7.9.3, and reject all the remaining proposed amendments. Two things must however be made clear:- i) The refusal of the great majority of the application is not to be taken as a licence for harassment or other criminal or tortious behaviour by the protestors on Saturday. It must be clearly understood that the injunction continues, and still contains significant prohibitions which must be respected, and that a significant part of the reasoning behind the refusal is the indication by the Police of their policy that there should be no tolerance of criminal offending. ii) Nor is the refusal remotely predictive of the likely content of the final order in this or other cases, which will be a matter for full evidence and far more mature consideration by the Judges who preside over the relevant hearings. Part of that evidence will, no doubt, be concerned with how the protestors conduct themselves on Saturday, and the extent to which any covert attacks do, or do not, continue on employees of target companies, not to mention whether Dr Gastone’s responsible conduct before me in this case is reflected in the future by the conduct in public of SHAC’s wider membership.

Cited in 1 later judgment