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Published online by Cambridge University Press: 08 April 2005
PROTESTORS of many types have featured in recent news reports—including both those who would hunt animals and those who would save them. The devastating impact of the activities of animal rights protestors on research facilities in Cambridge and elsewhere is well known. One response has been to seek injunctive relief under section 3 of the Protection from Harassment Act 1997 (“the Act”). These claims allege that the defendants seek to achieve the objective of closing laboratories in which experimentation on live animals is conducted by a concerted campaign of unlawful harassment and intimidation directed at laboratories, their customers and suppliers and their employees.
1 Contrast Silverton v. Gravett (unreported, 19 October 2001) which concerned picketing of a für shop. Similarly, see Bayer plc v. Shook [2004] EWHC 332 (QB), a claim against protestors opposed to the development of genetically modified crops.
2 See, for example, Inter-Tel Inc. v. Ocis plc [2004] EWHC 2269 at [1], [15] and [19] and Re Debtors (Nos 13 and 14-Misc-2000) The Times 10 April 2000.
3 However consideration of these issues is limited by the generally interlocutory nature of these claims.
4 Breach of s. 1 also constitutes a criminal offence, s. 2 of the Act.
5 Interpretation Act 1978, s. 5 and Sch. 1.
6 Huntingdon Life Sciences Ltd. (“Huntingdon”) v. Stop Huntingdon Animal Cruelty (“SHAC”) [2003] All E.R. (D) 280 (Jun) and Daiichi Pharmaceuticals UK Ltd. v. SHAC (“Daiichi”) [2003] EWHC 2337 (QB), [2004] 1 W.L.R. 1503. See also Director of Public Prosecutions v. Dziurzynski (“Dziurzynski”) [2002] EWHC 1380, The Times, July 8 2002.
7 [2002] EWHC 1380 (Admin), The Times, July 8 2002, at [27] and [32].
8 [2003] EWHC 2337 (QB), [2004] 1 W.L.R. 1503, at [14] and [20].
9 HC Deb. vol. 287 col. 781 (17 December 1996).
10 Referred to in Daiichi [2003] EWHC 2337 (QB), [2004] 1 W.L.R. 1503, at [14].
11 [2002] EWHC 1380 (Admin), The Times 8 July 2002, at [32], and relied upon in Daiichi [2003] EWHC 2337 (QB), [2004] 1 W.L.R. 1503, at [15].
12 Section 4 provides that causing another to fear on at least two occasions that violence will be used against him is an offence, and s. 5 enables the court to make a restraining order where an offence is committed.
13 Daiichi [2003] EWHC 2337 (QB), [2004] 1 W.L.R. 1503, at [18]. See also Dziurzynski [2002] EWHC 1380 (Admin), The Times, 8 July 2002, at [24], [31] and [33].
14 [1998] Env. L.R. D9 at page 3 of the transcript.
15 [2003] EWHC 2337 (QB), [2004] 1 W.L.R. 1503, at [18].
16 HC Deb. vol 287 cols. 785-6 (17 December 1996). As existing common law in Scotland already covered acts that cause harassment, no new criminal offence was proposed but provision was made for a new delict.
17 [1998] Env. L.R. D9 at page 3 of the transcript, Thorpe L.J. agreeing. Injunctions in favour of corporate claimants were also granted under s. 3 of the Act in Silverton v. Gravett (unreported, 19 October 2001), Chiron Corporation Ltd. v. Avery [2004] All E.R. (D) 157 (Mar), and Emerson Developments Ltd. v. Avery [2004] EWHC 194 (QB). In the former two decisions the issue of the corporations’ entitlement to claim under s. 3 is not addressed. In the latter decision, Field J.’s reference to the injunction being granted “at the suit of five Japanese companies” in Daiichi (the reference to 23 rather than 13 October 2003 appears to be an error), para. [24], is misleading given that those corporate claims were denied.
18 [2002] EWHC 1380 (Admin), The Times, July 8 2002, at [31].
19 Huntingdon v. SHAC [2003] All E.R. (D) 280 (Jun), Birmingham County Council & Nott v. Yardley [2003] L.L.R. 355 and Daiichi [2003] EWHC 2337 (QB), [2004] 1 W.L.R. 1503, at [15] and [17]. See also Chancellor, Masters and Scholars of the University of Oxford v. Broughton (“University of Oxford v. Broughton”) [2004] EWHC 2543 (QB) at [47] and [1], although it was not necessary to decide this issue.
20 Acknowledged in Daiichi [2003] EWHC 2337 (QB), [2004] 1 W.L.R. 1503, at [17].
21 [1998] Env. L.R. D9.
22 [2002] EWHC 1380 (Admin), The Times, July 8 2002, at [31] and [33], emphasis added.
23 Although Rose L.J.’s reference to sections 4 and 5 of the Act is also necessarily limited to interpretation of its criminal provisions.
24 Dimbleby & Sons Ltd. v. N.U.J. [1984] 1 W.L.R. 427. Justification is a defence to this tort but a defendant cannot escape liability by claiming an altruistic motive (Greig v. Insole [1978] 1 W.L.R. 302, 341) and, insofar as it is relevant, there are conflicting dicta on the availability of a defence based on moral obligation.
25 Stratford v. Lindley [1965] A.C. 269, 339.
26 Torquay Hotel Co. Ltd. v. Cousins [1969] 2 Ch. 106, Merkur Island Shipping Corporation v. Laughton [1983] 2 A.C. 570.
27 Lonrho plc v. Fayed [1992] 1 A.C. 448. It is arguable that the defendants’ predominant purpose is injury to the corporate claimant and so the tort of simple conspiracy may also apply. The defendants will avoid liability if their purpose is the protection of a “legitimate interest”. Although unclear, “legitimate interest” seems unlikely to extend to protection of animal welfare; see the reference to “legitimate trade or business interests” in Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch [1942] A.C. 435, 453.
28 Or cease dealing with those who conduct experimentation on live animals.
29 Rookes v. Barnard [1964] A.C. 1129. See, for example, Garret v. Taylor (1620) Cro.Jac. 567.
30 News Group Newspapers Ltd. v. S.O.G.A.T. (No. 2) [1987] I.C.R. 181, 204.
31 Rogers, W.V.H. Winfield & Jolowicz on Tort, 16th ed., (London 2002) 647Google Scholar.
32 The fact that there are no criminal equivalents of these economic torts may support the conclusion in Dziurzynski [2002] EWHC 1380 (Admin), The Times, July 8 2002 that the Act does not enable criminal prosecution for harassment of a corporation.
33 The interlocutory nature of many of the claims restricts the court’s ability to decide difficult questions of law, American Cyanamid [1975] A.C. 396, 407.
34 [2003] EWHC 2337 (QB), [2004] 1 W.L.R. 1503, at [22]. See also University of Oxford v. Broughton [2004] EWHC 2543 (QB) at [40].
35 The other representative claims brought under the Act do not provide any further clarification of the basis on which sufficient “same interest” was found, see Huntingdon v. SHAC [2003] All E.R. (D) 280 (Jun), Emerson Developments Ltd. v. Avery [2004] EWHC 194 (QB), Chiron Corporation Ltd. v. Avery [2004] All E.R. (D) 157 (Mar), Huntingdon v. SHAC [2004] EWHC 1231 (QB) and Bayer plc v. Shook [2004] EWHC 332 (QB).
36 Murphy, J. Street on Torts, 11th ed., (London 2003) 39Google Scholar. See also W.V.H. Rogers Winfield & Jolowicz., at p. 647.
37 Section 7(2).
38 J. Murphy, Street on Torts, at p. 39.
39 [2004] EWHC 194 (QB), at [7]. Similarly, in Silverton v. Gravett video tape showing a defendant obstructing access to a store and shouting at customers was held to constitute harassment of the claimant company and its two directors, (unreported, 19 October 2001), page 5 of the transcript.
40 Price v. Society of Lloyd’s [2000] Lloyd’s Rep IR 453, 461.
41 Contact with third parties has been viewed as harassment but in circumstances where there was also direct contact with the claimant, Birmingham County Council & Nott v. Yardley [2003] L.L.R. 355, 372 or where the claimant was present at the time, Lau v. Director of Public Prosecutions [2000] 1 F.L.R. 799, 801-802.
42 Nor is this possibility limited to claims against animal rights protestors. The anticipation that the Act will cover “those who target people because of the colour of their skin” raises the prospect that harassment of one member of a racial or ethnic group may distress other members of that group.
43 Section 7(2).
44 [2002] EWHC 1380 (Admin), The Times 8 July 2002, at [7]. In University of Oxford v. Broughton [2004] EWHC 2543 the attempt to rely on Dziurzynski to confine “same interest” to “close knit” groups was rejected on the basis that it confused the terms of a civil injunction with the ingredients of a criminal offence, at [38]-[39].
45 Any more closely defined group may, for example, include particularly hardy individuals who are not all distressed or alarmed by the harassment of others.
46 Huntingdon v. SHAC [2004] EWHC 1231 (QB) at [46]. Mackay J. was considering the claimants’ application to strike out the defence and for summary judgment, both of which were refused, at [54]-[57].
47 Note the effect this possibility will have on the test for interlocutory injunctive relief, Cream Holdings v. Banergee [2004] UKHL 44, [2004] 3 W.L.R. 918, at [20]-[23].
48 The Times, 11 December 1997, an inter partes hearing some six weeks after the Court of Appeal decision granting a temporary ex parte injunction, [1998] Env. L.R. D9.
49 [2002] EWHC 1380 (Admin), The Times, July 8 2002, at [33]. However the suggestion that this concern led to the temporary ex parte injunction granted in Huntingdon v. Curtin [1998] Env. L.R. D9 being discharged overstates the effect of Eady J.’s judgment which varied the injunction by removing the name of the third respondent, the British Union for the Abolition of Vivisection. The right of the corporate claimants to claim under the Act appears not to have been challenged, and is not considered, in the later decision.