Daiichi UK Ltd & Ors v Stop Huntington Animal Cruelty & Ors

The Claimants in the five actions with which I am concerned seek injunctive relief under section 3 of the Protection Against Harassment Act 1997 (the Act). Each action is brought by a company or group of companies, and by a named individual or individuals acting on their own behalf, and on behalf of the other employees of the company or companies. Each of the companies is registered in the United Kingdom, but is associated with a company or companies based in Japan.

The actions can conveniently be referred to as the Asahi Glass Action, the Daiichi Action, the Sankyo Action, the Yamanouchi and the Eisai Action. The companies involved in the Asahi Glass Action are engaged in general industrial manufacture; the companies involved in the remaining actions are all involved in the marketing, distribution and sales of pharmaceutical products. The Defendants are individuals or groups of individuals who campaign for animal rights. Five Defendants are common to all the actions, Stop Huntington Animal Cruelty (SHAC), Greg Avery, Natasha Avery, Heather James, and the Animal Liberation Front (ALF). Two of the Defendants, Joseph Dawson and the Animal Rights Militia (ARM) are common to four of the actions, the exception being the Asahi Glass Action.

SHAC is an unincorporated association whose stated objective is the closure of laboratories run by Huntington Life Sciences (HLS). HLS conducts research for the pharmaceutical, biotechnological, agro-chemical, veterinary, food and chemical industries. Such research involves the experimental use of live animals. It is the Claimants' case that Greg Avery, Natasha Avery and Heather James are the principal co-ordinators of, and spoke-persons for SHAC, and that ALF and ARM are unincorporated associations closely affiliated to SHAC. SHAC has identified the Claimant companies as “.Japanese customers” of HLS.

Greg Avery, Natasha Avery and Heather James were represented at the hearing of the applications. Eddie Grattwick, Pamela Kinnunem and Christine Tosh, Defendants in the Eisai action, appeared in person. The remaining Defendants were not represented and did not appear. Eisai discontinued the proceedings against Eddie Grattwick at the conclusion of the hearing.

The applications for injunctive relief first came before the court without notice to the Defendants on 21 August 2003 when it was ordered that they be adjourned to be heard on notice to the Defendants on 27 August. On the 27 August Davis J gave interim injunctive relief and adjourned the applications to a full hearing.

The Background

On 20 June 2003 Gibbs J granted injunctive relief to HLS restraining SHAC, Greg Avery, Natasha Avery, and Heather James, the ALF and seven other Defendants from pursuing a course of conduct amounting to harassment of HLS, its employees and the families, servants or agents of its employees, in breach of the Act, see Huntingdon Life Services v. Stop Huntingdom Animal Cruelty and others Neutral Citation No [2003] EWHC 1967 (QB). The order made by Gibbs J is the subject of an appeal by Greg Avery, Natasha Avery and Heather James to be heard in March 2004.

As to the suppliers of goods and services to HLS the evidence shows that in December 2002 Marsh McLellan, International Insurance Brokets ceased to act for HLS as a result of a campaign of harassment and intimidation, and in February 2003 Deloitte Touche, HLS' auditors, withdrew their services for the same reason.

Since the late spring/early summer of 2003 the SHAC campaign for the closure of the HLS laboratories has been directed at the Claimant companies. The evidence in support of the applications shows that directors and employees of each of the Claimant companies have been the target of the sustained campaign of intimidation and harassment. The helpful analysis of the evidence by Mr Lawson-Cruttenden, who appeared for the Claimants, shows that the campaign has broadly taken the following forms -

The claims are based upon the Protection Against Harassment Act 1997. The relevant sections of the Act provide as follows -

“1.

Prohibition of Harassment

(1)

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.

(2)

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.

2.

Offence of Harassment

(1)

A person who pursues a course of conduct in breach of section 1 is guilty of an offence.

(2)

A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

(3)

In section 25(2) of the Police and Criminal Evidence Act 1984 (Arrestable Offences) after paragraph (m) there is inserted -

(n)

An offence under section 2 of the Protection from Harassment Act 1997 (Harassment).

3.

Civil Remedy

(1)

An actual or apprehended breath 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.

(3)

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.

(6)

Where -

(a)

The High Court or a County Court grants an injunction for the purpose mentioned in sub section (3)(a), and

(b)

Without reasonable excuse the Defendant does anything which he is prohibited from doing by the injunction,

he is guilty of an offence.

7.

Interpretation of this group of sections

(1)

This section applies for the interpretation of sections 1 to 5.

(2)

References to harassing a person including alarming the person or causing the person distress.

(3)

A “course of conduct “ must involve conduct on at least two occasions.

(4)

“Conduct “includes speech.

In Esther Thomas v Newsgroup Newspapers Limited Neutral Citation number [2001] EWCA CIV 1233, the Court of Appeal considered the meaning of 'harassment' under the 1997 Act. In giving the judgment of the court Lord Phillips MR said -

“29.

Section 7 of the 1997 Act does not purport to provide a comprehensive definition of harassment. There are many actions that foreseeably alarm or cause a person distress that could not possibly be described as harassment. It seems to me that section 7 is dealing with that element of the offence which is constituted by the effect of conduct rather than with the types of conduct that produce that effect.

30.

The Act does not attempt to define the type of conduct that is capable of constituting harassment. “Harassment” is, however, a word which has a meaning that is generally understood. It describes conduct targeted at an individual a which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable.

There can be no doubt that the conduct described in the witness statements served in support of these applications amounts to harassment within the meaning of the Act.

It is submitted by Counsel for the represented Defendants that on the proper construction of the Act, the term 'person' does not include a limited company, and that in consequence a company cannot be the victim of harassment and cannot bring a claim under the Act. The issue arose in Huntington Life Sciences v Stop Huntington Animal Cruelty and Others; but Gibbs J accepted the invitation by counsel for HLS not to rule on the issue, an invitation made on the basis that the application for an injunction on the part of the limited company, as opposed to that made by its managing director on his own behalf and on behalf of the employees of the company, would not be pursued.

Mr Westgate relies upon section 7(2) of the Act in which harassment is defined as including “alarming the person or causing the person distress”. He submits that that can only apply to an individual and not to a corporate entity. Secondly he relies upon the legislative history. The Act had its origins in a Home Office consultation paper “Stalking - the solutions”; and in opening the debate on the second reading on 17 December 1996, Hansard col 781, the then Home Secretary said -

“In the past year, a number of highly publicised stalking cases have come to public attention. They have highlighted the need to give the courts more effective powers to deal with stalkers. The bill covers not only stalkers but disruptive neighbours and those who target people because of the colour of their skin.”

Thirdly Mr Westgate relies upon the decision of the Divisional Court in DPP v Dziurzynski Neutral Citation number [2002] EWHC 1380 (Admin). The judgment of the court was given by Rose LJ, who set out his conclusions in the following terms -

“32.

I accept of course that the word “person unless the contrary intention is shown, is, as Mr Hatton on behalf of the Crown submits, to be understood, by virtue of the Interpretation Act 1987, as including a body of persons corporate or incorporate. But that said, it seems to me that the legislative history to which, in my view, reference can properly be made when construing what is meant by the word “person” in section 1 of the Act, points against person here meaning a corporation. It is to my mind also significant that in section 4(1) the word “him” is used and in section 5(2) the word “victim” is used.

33.

For my part, I find nothing in the Scottish provisions, particularly bearing in mind that they do not create a criminal offence of the kind here under consideration, which suggests that “person” in section 1 should be construed as embracing a corporation. As it seems to me, as a matter of statutory construction, this Act was not intended by parliament to embrace, within the ambit of a criminal offence, conduct amounting to harassment directed to a limited company rather than to an individual human being. I gain support for that conclusion from the observations made by Eady J who, at an inter parties hearing, some six weeks after the Court of Appeal granted the temporary ex parte injunction to which I have referred, discharged it. He, of course, had the advantage of hearing submissions on behalf of the Defendants as well as the Plaintiffs. In the course of giving his judgment, of which the court has been provided with a full transcript, dated 28 November 1997, and which is briefly reported in the Times Law Reports for 11 December 1997, Eady J said:

“The legislators who passed that Act (he is there referring to the 1997 Act) would no doubt be surprised to see how widely its terms are perceived to extend by some people. It was clearly not intended by parliament to be used to clamp down on the discussion of matters of public interest or upon the rights of political protest and public demonstration which are so much part of our democratic tradition. I have little doubt that the courts will resist any such wide interpretation as and when the occasion arises, but it is unfortunate that the terms in which the provisions are couched should be thought to sanction any such restrictions.”

The decision of the Court of Appeal to which Rose LJ referred at paragraph 33 of his judgment was in Huntington Life Sciences v Curtin, an unreported decision given on 15 October 1997 in an ex parte appeal from a refusal by Mr Justice Timothy Walker to grant injunctive relief. Rose LJ dealt with the decision in the following terms -

“29.

Lord Gifford in his written submissions referred to Huntington Life Sciences v Curtin ... in the course of giving the first judgment, with which Thorpe LJ agreed, Schiemann LJ said at page 3 of the transcript:

“There is little difficulty on the information before us in coming to the conclusion that the Plaintiff is the subject of harassment. It did occur to me that the word “person” in the Act might refer merely to an individual and not to company but the Act does not say so, on the contrary, it uses the word “individual” elsewhere in references to Scotland but not in the sections with which we are concerned. In those circumstances the presumption in the Interpretation Act that “person” includes “bodies corporate” should prevail, at any event for the purposes of a short-term injunction”

30.

The court proceeded to grant a short-term injunction, it is to be noted ex parte, to the applicant company, Huntington Life Sciences, whose premises were being besieged for the want of a better word, by a number of individuals and organisations protesting on behalf of animal rights.

31.

In my judgment that decision of the court of appeal is not binding on this court because it was not a decision reached as a consequence of argument reached on both sides. An ex parte injunction was being granted. In any event, as seems to me, the terms of that part of the judgment, which I have read, do not address the section at the heart of the present case, which is whether a criminal offence is capable of being laid in the terms of the charge. Schiemann LJ refers to the word “individual” appearing in passages of the Act which relate to Scotland, though for my part, I have found only one reference to the word “individual”, and that is the one I have rehearsed as the descriptive prelude to the provisions of section 8.”

Mr Lawson-Cruttenden submitted that the Divisional Court entered in DPP v Dziurzynski, and that it was bound by the decision of the Court of Appeal in Huntington Life Services Limited v Curtin and Others. In my judgment that submission is misplaced for the reasons set out by Rose LJ in paragraph 31 of his judgment. Furthermore Schiemann LJ expressly qualified his conclusion by saying that the presumption in the Interpretation Act should prevail “at any event for the purpose of a short-term injunction”. It is arguable that the conclusion of the Divisional Court in Dziruzynski as to the construction issue was obiter, but I find the reasoning compelling.

Mr Lawson-Cruttenden also sought to place reliance upon the use of the word 'individual' in section 8 of the Act, the section that makes specific provision for Scotland. Section 8(1) provides that -

“Every individual has a right to be free from harassment and, accordingly, a person must not pursue a course of conduct which amounts to harassment of another-”

He submits that had it been the intention of Parliament to exclude corporate bodies from the provisions relating to England and Wales in section 1 of the Act, the word “individual” could and would have been used. I do not find that argument persuasive, not least because the prohibition in both section 1 and section 8 is couched in identical terms, namely that “...a person must not pursue a course of conduct which amounts to harassment of another.”

Thirdly Mr Lawson-Cruttenden sought to rely upon the decision of the Court of Appeal in Esther Thomas v Newsgroup Newspapers Limited in which the court was satisfied that there was an arguable case that Newsgroup Newspapers Limited had harassed the Claimant within the meaning of the 1997 Act. He argued that the term 'person' must have the same meaning wherever used in section 1. But there are two points to be made. First the point was not argued before the Court of Appeal. Secondly if the issue had arisen, it would no doubt have been argued that Newsgroup Newspapers Limited was properly joined as a Defendant as vicariously liable for the acts of its employees. I do not therefore consider that the decision provides support for the construction for which the Claimants contend.

In my judgment the word 'person' in section 1 of the Act does not on its proper construction embrace a corporate entity.

Representative Proceedings

I am satisfied that the named Claimants and their fellow employees of the companies in question have the same interest in the proceedings, namely not to be harassed by animal rights activists; and accordingly that it is appropriate for the named Claimants to bring the proceedings both on their own behalf and on behalf of the employees of each of the companies in question.

As to the position of the unincorporated groups that feature as Defendants in these actions, SHAC, ALF and ARM, I am in full agreement with, and respectfully adopt, the approach of Gibbs J set out in paragraphs 27 and 28 of his judgment in Huntington Life Sciences and Stop Huntington Animal Cruelty and Others -

“I now turn to the possible applicability of CPR19.6 to the Defendants. The Defendants include nine individuals and three groups who the Claimants allege are unincorporated associations. The evidence about the existence and composition of the eleventh and twelfth Defendants (London Animal Action and Animal Liberation Front) is unspecific. There is sufficient to persuade me that those Defendants exist as groups and are part of the alleged campaign against employees of the First Claimant. There is no evidence that Defendants' two to ten belong to either of those groups. There is evidence in relation to several of the individual Defendants, some of them indeed from those Defendants themselves that SHAC (The First Defendants) exist as a group. However, the nature of SHAC and the extent of involvement in it on the part of these Defendants are to an extent in dispute. None of the individual Defendants seeks or is willing to represent SHAC. I do not consider it either necessary or just or convenient to direct that any individual Defendants should do so. SHAC as outlined is a sufficiently identifiable group to justify its being joined as a defendant. Mr Lawson-Cruttenden cited examples of such groups being joined in an action where there is sufficient identity of interest, for example Michael Furrier's Limited v Askew and Others Times Newspaper 25 June 1983, EMI Records Limited v Kevin Cudel and Others 1983 Commercial Law Reports 280. Further, I have been shown orders made by other judges in this Division against such bodies. But despite the aptness of SHAC being joined as a defendant, I see little purpose in directing that it should represent any particular people such as the Defendants under CPR part 19. It is not even itself at present represented.

28.

The important point is that if an injunction is to be granted those bound by it should be identifiable with sufficient particularity. That object is achieved by the definition 'protestor' set out in paragraph 5 of the definition section of Pitcher J's order. That reads as follows:

In this order 'protestor' or 'protestors' shall mean the Defendants by themselves with their servants or agents or otherwise and any other person who is acting in consort with any of the Defendants who has notice of the terms of order whether by himself, his servants or agents or otherwise or by any other person who has been given notice in writing of the terms of this order, whether by himself, his servants or agents or otherwise.”

The orders that the Claimants invite me to make each include a definition of the section defining 'protester' and 'protestors' in identical terms to the HLS action.

Injunctive Relief at the Interlocutory Stage of Proceedings

In this context it is also necessary to take account of the rights to freedoms of expression and freedom of assembly and association under Articles 10 and 11 of the ECHR. The Court must of course act in a manner that is compatible with the convention rights. But it is also important to bear in mind that Article 10(2) provides that -

“10(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 ...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...”

Article 11(2) contains a similar qualification. As Stuart-Smith LJ said in Monsanto PLC v Tilley and Others Times Law Reports 30 November 1999 -

“In a democratic society, the object of change in government policy had to be effected by lawful and not unlawful means. Those who suffered infringement of their lawful rights were entitled to the protection of the law. If others deliberately infringe those rights in order to attract publicity to their cause, however sincerely they believed in its correctness, they had to bear the consequences of their law breaking. That was fundamental to the rule of law in a civilised and democratic society.”

The issue is whether the restrictions on the right to freedom of expression or of freedom of assembly or association are necessary for the proper protection of the Claimant's rights, and if so whether the restrictions proposed are proportionate. They must be no wider than is necessary to accomplish that objective.

The Evidence

It is acknowledged on behalf of the represented Defendants that, as is clear from the documentary evidence, they have acted as spokespersons for SHAC, and are responsible for the contents of its newsletters. I am satisfied that the evidence reveals an arguable case that they are responsible for the direction and co-ordination of the SHAC campaign, and in particular for the dissemination of information as to the identity and location of the companies and individuals to be targeted by animal rights activists.

The represented defendants were convicted of criminal offences in November 2001 arising out of the campaign to close HLS, and were sentenced to periods of imprisonment. But it is asserted on their behalf that although they have continued to campaign vigorously for the closure of HLS since their release, they have not engaged in unlawful activities nor encouraged others to do so. It is submitted that the material to be found on the SHAC website and in its newsletters falls into two discrete categories, first material relating to the lawful campaign, and secondly publication of reports of activities by individuals or organisations for which they accept no responsibility, but which, from such reports, have clearly engaged in unlawful activities. It is submitted that such reportage cannot amount to encouragement to act in an unlawful manner. I do not agree. It is clear in my judgment that when view in context, such reports of unlawful activities are intended to encouraging supports of the campaign to act unlawfully, and are likely to have such an effect. That conclusion is reinforced by the absence of any disclaimer by SHAC of such unlawful activities.

Furthermore two of the named defendants, Natasha Avery and Heather James, have made statements to the press on behalf of SHAC which amount to approval or encouragement of unlawful activities in furtherance of the campaign against HLS. On 5 March 2003 Natasha Avery was reported in the Press and Journal (Aberdeen) as saying inter alia -

“The message is simple: anyone dealing with Huntington Life Sciences will have to face the consequences of that alliance.

If you are involved in animal cruelty, don't think you can go home at night and get away with it. We will tell your neighbours exactly what you are involved in.

We support any form of action against anyone working in with Huntington Life Sciences.”

Similarly she was reported in Scotland on Sunday, 9 March 200, as saying -

“Our message to any company has always been very simple...if you deal with Huntington you deal with SHAC and we will target whoever we want to achieve our aim of closing the place down. No company will stand in our way, be it insurer, bank, accountant or whatever. And passing laws against us is laughable because we will always find a way around them. In any case going to prison is a small price to pay if it means closing HLS down.”

Later in the same article she was reported as saying -

“We support any direct action taken with the specific aim of closing down HLS as long as there is no harm done to human or animal life.”

On 14 April 2003 and following a successful application by HLS for an injunction based on allegations of unlawful harassment (see paragraph above), Heather James was reported in the Cambridge Evening News as saying -

“We take the injunction as a huge compliment to the campaign. It proves we are being extremely effective. We will not stop, we will not go away and we will not give up. It makes us more determined than ever.”

The SHAC newsletter number 23 published in February 2003 contained the following passage -

“The message this sounds out is loud and clear SHAC is everywhere - we have shown yet again that security is no match for the determination of activists hell bent on exposing the truth, but we can and will go to any lengths to bring about the end of HLS and those who deal with them, and that no one is safe from this campaign if they are connected to HLS.”

The degree of influence or control over animal rights activists by SHAC is demonstrated not only by the information that it disseminates as to the targets, both corporate and individual, but also by the evidence as to its role in discussions or negotiations with the companies the subject of the campaign. By way of example on 30 September 2003 there was an announcement on its web site to the effect that the Sunlight Service Group, a laundry company, had terminated its contract with HLS as a result of pressure from SHAC activists, and stating that -

“Sunlight have been given an undertaking that true to our word, unlike them, a request will be sent out asking activists to stop targeting them with immediate effect.”

The evidence also reveals an arguable case that the two named but unrepresented defendants, Joseph Dawson and Penny Cooper are involved with SHAC.

Finally it is reasonably to be inferred from the material published by SHAC that ALF and ARM are associated with SHAC and share both its objectives and its approach to their attainment, and that the supporters of both have been involved in the pursuit of the campaign to close HLS by unlawful harassment.

Having carefully considered the evidence adduced in support of the applications I am satisfied that the balance of justice and convenience weighs heavily in favour of granting interlocutory injunctive relief to the non-corporate Claimants. Furthermore I am satisfied that it is appropriate for such relief to include exclusion zones. In arriving at that conclusion I bear in mind the rights to freedom of speech and of assembly and association. But I am satisfied that the imposition of such zones is necessary for the proper protection of the named Claimants and the employees of the Claimant companies from unlawful harassment.

Accordingly I propose to grant injunctive relief in broadly the form sought, but will hear further submissions as to the form of the orders, in particular in relation to the ambit of the exclusion zones.