Harassment and pursuing criminal conduct

Dan Tench

In Cheshire West and Chester Council and others v Pickthall, Mr Justice Edis granted an interim injunction under the Protection from Harassment Act 1997 (the “PHA”) to restrain the defendant from publishing allegations of criminal conduct on the part of the claimant Council and various individuals associated with it.  In doing so, he showed the balance between freedom of expression and protection from harassment at the interim stage.

The claimants alleged that the defendant was as a “vexatious complainant” and had “engaged upon a long and persistent campaign against the Council and its officers, employees and Councillors” lasting from 2010 to the present day. This included voluminous email correspondence, contacting the police, the threat to distribute leaflets and the setting up of a website containing allegations of corruption.

The claimants sought an interim injunction under the PHA, contending that the defendant’s activities constituted a course of conduct which amounted to harassment.  The defendant claimed he had a defence to any claim of harassment under section 1(3) of the PHA and in particular section 1(3)(a), which provides for a defence for a course of conduct “pursued for the purpose of preventing or detecting crime”.  In Hayes v Willoughby [2013] 1 WLR 935, the Supreme Court held that, for this defence to apply, the course of conduct had to be rationally connected with the purpose of preventing or detecting crime.

The judge noted that given this was an interim injunction which affected the defendant’s right to freedom of expression, section 12(3) of the Human Rights Act 1998 applied.  This provides that no injunction should be granted which affects the right to freedom of expression “before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed”.  In Cream Holdings Ltd v Banerjee [2005] 1 AC 253, the House of Lords provided some flexibility in respect of the interpretation of the term “likely” here but the judge considered simply that he had to show that “the defendant is likely to fail to establish one of the statutory defences”.  The only defence at all viable was the one in section 1(3)(a), but after reviewing the evidence and having regard to the decision in Hayes, the judge concluded that the defendant had “no real prospect of establishing that his campaign of harassment was justified” under this provision.  Accordingly, the injunction was granted.

The judge also stated that if the defendant were to become aware of other material which he wished to publish and considered that he should be permitted to do so, it was open to him to apply to vary the order.  But such an application must be done on notice and be supported by evidence with a statement of truth.

Cheshire West and Chester Council and others v Pickthall [2015] EWHC 2141 (QB)

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