Smithkline Beecham Plc & Ors v Avery & Ors (Representing Stop Huntingdon Cruelty ("Shac")

In this action the GlaxoSmithKline group of pharmaceutical companies seek an injunction to restrain unlawful conduct by way of trespass and harassment by animal rights activists done with the aim of preventing the use of animals in medical research. The undisputed facts show clearly the need for such an order, and in the opening written submissions on behalf of the second defendant it is said ‘It is not part of Mr Webb’s case that no injunctive relief at all should be granted in this case. … It is fully acknowledged that an order is inevitable.’ A similar acceptance appeared in those on behalf of the third defendant. The issues are as to against whom the order should be made; who, pursuant to CPR 19.6, should represent those against whom it is made; and as to the terms of any order. There is also an issue as to whether the corporate claimants can claim an order under the Protection from Harassment Act 1997 to protect their employees and others.

The proceedings were begun on 4 April 2007 when an interim order was made without notice by Beatson J. That order was continued with some modification on 27 April 2007 by Teare J.: [2007] EWHC 948 (QB). The action proceeded, and after various delays caused in large part by the criminal proceedings against various leading activists the trial began before me on 3 June 2009. The relief sought is a final order largely in the same form as that obtained in April 2007.

The claimants are eleven companies in the GlaxoSmithKline Group of pharmaceutical companies together with Mr William Trundley who sues on behalf of ‘the Protected Persons’. The Protected Persons are defined as the directors, employees, agents, subcontractors and suppliers of all members of the GSK Group together with the families, servants and agents of such persons and lawful visitors to the places of business or homes of the claimants or Protected Persons already listed.

There are three defendants. The first defendant, Mr Greg Avery, was sued as representing, with the third defendant, Dr Max Gastone, ‘all persons acting as members, participants or supporters or in the name of the unincorporated association known as Stop Huntingdon Animal Cruelty (“SHAC”)’. Dr Gastone was added as a defendant to represent SHAC following the arrest and remand in custody of Mr Avery in May 2007. The second defendant is Mr Robin Webb who was sued as representing ‘all persons acting as members, participants or supporters or in the name of the unincorporated association known as the Animal Liberation Front (“ALF”).’ The order sought would restrain the defendants from trespass and from harassment. Like the interim order it would limit protests to prevent harassment by, among other means, defining demonstration areas and exclusion zones.

I will set out the position of the three persons named as representative defendants in more detail in due course, but it is helpful to summarise it early on. Mr Avery played a part when the proceedings were in their early stages, but played no part at the trial. Mr Webb was represented at the trial by Miss Stephanie Harrison, and also by Mr Michael Turner QC whose role was limited to the cross-examination of Mr Trundley and Superintendant Pearl. Mr Webb’s position was that there was no case for an injunction against him as an individual, and that he could not and should not be a representative defendant for the ALF. Dr Gastone was represented at the trial by Mr Rajeev Thacker. His position was broadly similar to that of Mr Webb but with some difference. The evidence called on behalf of the claimants as to the campaign against them was not disputed.

Huntingdon Life Sciences Limited, ‘HLS’, is a company which uses animals in the course of medical research. SHAC was set up in 1999 for the purpose of forcing it to close. In 2003 HLS obtained an interim order against SHAC and others to prevent the harassment of its employees and other protected persons defined in the order. Permanent orders were made on 19 March 2007 by Holland J. following a trial.

Early in the campaign against HLS the campaign was widened to include companies and persons who were connected with HLS financially such as customers, suppliers and shareholders. GlaxoSmithKline were named. In addition to carrying out its own research using animals, GSK contracts with HLS for HLS to carry out such research.

The first incidents against GSK occurred in 2000. In general the campaign took two forms. One was the holding of protests or demonstrations at GSK’s premises of varying legality. The other was cynically called ‘home visits’ to GSK employees. A schedule of incidents between March 2005 and March 2007 was put in evidence. Over 80 incidents are recorded. The majority are attributed to SHAC. Nine are attributed to ALF.

The company secretary of GSK was singled out for attention. On 29 August 2000 there was a demonstration outside his house (he was away) and leaflets were left, some being glued to the house. The next month leaflets and banners were left around the boundary of his home, stuck to the walls, bearing the words ‘Puppy Killer’. Between September 2000 and June 2001 unsolicited items were delivered once or twice a week. He and his wife were aware of the possibility that they might be explosive, but they were not. He had the nuisance of returning the goods which had been ordered on credit ostensibly in his name. In the next two years he received at least two death threats. On 25 November 2005 the windows of his car were smashed by two men with concrete posts. On 19 January 2006 his house was spray-painted with graffiti: ‘paedo scum drop HLS or go bang’, ‘scum animal killer’, ‘GSK + HLS = ALF’, and ‘evil scum’. This incident was recorded on an American website called ‘Bite Back’, where it was attributed to the ALF. In January 2006 neighbours received letters accusing him of being a sex offender. Again the ALF took responsibility for this on the Bite Back site.

In May 2006 letters were written to GSK shareholders warning them to sell or their personal details would be put on an animal rights web site. The letter was quoted in an article in the Arkangel website. Arkangel is a magazine which publicises animal rights activities, in particular those of the ALF. As a result of this GSK obtained an injunction to prevent further communication with shareholders and the publication of shareholders’ details as threatened.

On 10 May 2006 the home of GSK’s chief financial officer was sprayed with graffiti. This was reported on Bite Back.

On 16 June 2006 SHAC conducted a ‘Meet the Murderers’ campaign at three GSK premises. At Crawley employees were told that campaigners had the numbers of their cars and would find out where they lived, and were prevented from driving by demonstrators standing in front of their cars (one climbed onto a car’s bonnet). At Weybridge on 26 February 2007 photographs were taken of employees’ cars.

On 14 March 2007 the home of a GSK research chemist was sprayed with graffiti including ‘scum’, ‘animal murderer’, and ‘ALF’. This was reported on the Bite Back website in an article which included: ‘We all know what happens to slimy filth like that … yeah, the ALF come round and sort you out.’ On 17 March 2007 another GSK employee had two cars damaged by paint stripper and graffiti including ‘ALF’. The tyres were slashed. This caused great distress to his young children. On 25 March another employee’s cars were attacked with paint stripper and the road and pavement sprayed with graffiti. This was reported on Bite Back. Also in March 2007 a wall in the village of Dinton near Aylesbury was sprayed with ‘Glaxo animal killer in your village’. A former GSK executive lived there. This was reported on Bite Back.

Witness statements describe the intimidating effect of aggressive demonstrations using megaphones to shout abuse at close quarters, the thrusting of placards at employees and the obstruction and photographing of vehicles.

It was as a result of the perceived escalation of incidents that these proceedings were commenced and the interim order sought on 4 April 2007. The campaign against GSK has continued but the order has been largely effective in preventing trespass, harassment and intimidation. I am satisfied that, if it were not for the interim order, the campaign would have continued to use the unlawful methods which it formerly used, and, if it were set aside, the strong probability is that they would be resumed.

A separate but allied campaign has been conducted against Oxford University to prevent the building and operation of a bio-medical research laboratory. The role played by SHAC in the campaigns against HLS and GSK may have been played by an entity named SPEAK, but many of the more objectionable actions have been carried out in the name of the ALF. The University issued proceedings on 3 September 2004 and obtained an interim order. The tenth defendant was named as the ALF. In a judgment delivered on 13 October 2006, [2006] EWHC 2490 (QB), Irwin J. held that the ALF should be represented by Mr Webb and that he should remain a defendant in his own right. The action was intended to be tried in advance of the present, but it remains stayed pending the outcome of particular criminal proceedings. A witness statement made in the Oxford proceedings by the University’s associate director of legal services, Frances Barnwell, was put in evidence in the present proceedings, in particular to establish facts concerning the ALF. In February this year Mel Broughton, a founder of SPEAK, was sentenced to 10 years imprisonment for setting fire bombs in Oxford.

On 1 May 2007, as part of a police operation against leading animal rights activists named ‘Operation Achilles’, a series of raids were made in England, Amsterdam and Belgium. 32 people linked to animal rights extremism were arrested. The outcome in England was the preferment of two indictments, one against ten defendants and one against a further either six or seven. The ten faced a charge of conspiracy to blackmail, namely ‘to blackmail representatives of companies and businesses and other persons whom they suspected of being associated with [HLS] by making unwarranted demands, namely to cease trading lawfully with HLS, with menaces and intent to cause loss to another’. On 30 July 2008 Greg Avery, Natasha Avery and Daniel Amos pleaded guilty. On 23 December 2008 four others were found guilty following trial. Sentences ranging from eleven to four years were passed. The trial involved an investigation of the activities of the leading persons associated with SHAC and who also acted from time to time in the name of the ALF. Citations were made to me from the closing speech on behalf of the prosecution, from the summing up of Butterfield J. and from his sentencing remarks. The second trial has not yet taken place.

It was submitted by Miss Stephanie Harrison on behalf of Mr Webb that the Animal Liberation Front, commonly called the ALF, is not of a nature that it can be made a defendant in an action as an entity in its own right. That was accepted by Mr Paul Girolami on behalf of the claimants. It was further submitted by Miss Harrison that even with a representative defendant the ALF cannot be used as an umbrella to cover those individuals whom the claimants would seek to injunct. Mr Girolami submitted that the words chosen quoted in paragraph 4 above made it appropriate for there to be a representation order. It is necessary for me to examine the nature of the ALF, to see what it is and is not, and to make appropriate findings, though I should record here that it is Mr Girolami’s case that even on the basis of Miss Harrison’s submissions as to the facts relating to the ALF he is entitled to succeed.

The Animal Liberation Front, the ALF, is dedicated to the furtherance of animal rights by direct action, which is a euphemism for illegal conduct. It is therefore necessarily secretive. On the other hand it needs publicity for its actions in order to further its cause because its major weapons are intimidation and fear. So public sources reveal a certain amount about it. It has been submitted to me that it is no more than a badge or calling card which is used by activists when they commit an illegal act. So when a home is sprayed with graffiti the action is claimed for the ALF. But, it is said, the ALF has no real existence other than as a concept. I am satisfied that it is more than that. The evidence in this trial establishes that it is a name adopted by a group of individuals who carry out illegal acts in purported furtherance of animal liberation. There are some who are at the centre and will from time to time take decisions as to actions to be taken and policy. Others will have an on-going involvement with those at the centre and in activities undertaken in the name of the ALF. Some will have a temporary involvement by carrying out an action undertaken in the name of the ALF. These are, of course, not distinct categories but shade into one another: they are used simply to provide a description of those who at any one time should be considered members of the ALF. There is naturally no formal membership nor any published membership criteria. Nor is there any formal constitution or structure.

The evidence which leads me to the conclusions set out in the last paragraph is as follows:

Miss Harrison’s submission on behalf of Mr Webb was that the ALF was no more than a badge or calling card used by activists who wished to use it in connection with a criminal act. In support of that submission she relied on the evidence of Mr Pearl in cross-examination that he had formed the opinion that the name ALF was merely a calling card used by those seeking to divorce criminal acts from acts which might be attributed to SHAC (which had purported to be a lawful organisation). Superintendent Pearl had not been closely involved in Operation Achilles or the Winchester trial, but he is head of the police National Extremism Tactical Co-Ordination Unit, called ‘NETCU’. Mr Trundley had agreed in his cross-examination with that opinion of Superintendant Pearl. In the Winchester trial counsel for the prosecution referred to the ALF as a badge and a flag of convenience. It is not clear to me how far the nature of the ALF was an issue at the Winchester trial. It appears that those defendants who did not plead guilty were saying that they were simply members of SHAC, which was a lawful organisation carrying out lawful protests. The issue for the jury must have been whether they were involved in a conspiracy as set out in the indictment, and for that purpose it would not seem to matter what hat the defendants wore when agreeing and acting as they were found to have done. I have to decide the issues before me on the basis of the evidence which has been called at the present trial. I should take account of what Mr Pearl said based on the Winchester trial, and Mr Trundley’s agreement with him. It is correct that ‘the ALF’ is used as a calling card as it were because to do so attracts the publicity the name brings and the fear, which make the action the more effective. This is not, however, in any way inconsistent with the ALF being as I have described it. Further, an activist who is a member of SHAC may also properly be described as a member of the ALF.

I can deal more shortly with SHAC. It is accepted in the defences of Mr Avery and Dr Gastone that SHAC is an unincorporated association. Although the opening written submissions on behalf of Dr Gastone suggested a retreat from that, paragraph 32 of the closing submissions confirmed it. In Mr Avery’s defence it is denied SHAC has members; it is admitted that he has been a spokesperson for SHAC and has convictions relating to the SHAC campaign; it is denied that he is an appropriate representative defendant because the overwhelming majority of SHAC campaigners protest peacefully and within the law. It is asserted that SHAC’s campaign has been lawful; that SHAC condemns unlawful protest; that SHAC has no links with the ALF; and that SHAC’s spokespersons have condemned unlawful activity on many occasions. Dr Gastone’s defence is in the same terms. But his defence was not conducted on that basis. In the opening written submissions served on his behalf it was accepted that the claimants had produced sufficient evidence to justify injunctions against persons properly appearing as defendants, though not against him. At the start of his oral closing Mr Rajeev Thacker accepted on Dr Gastone’s behalf that appropriate claimants were entitled to judgment against SHAC if it was appropriately represented, and he asserted that there was no point in adding Dr Gastone as a second representative because SHAC could be represented in the action by Mr Avery.

In his unchallenged evidence Mr Trundley stated that SHAC had a website, contact details, a bank account for donations, and the use of properties, computers printing facilities and funds from street collections. Various SHAC documents refer to members. It was set up by Greg Avery, Natasha Avery and Heather Nicholson. They were responsible for the contents of its newsletters, and putting on its website information as to the names and locations of companies and persons to be targeted. I accept that it does not have a membership in a formal sense. The strong probability is that all those taking part in or contributing to its campaign are to be considered members. It is recorded in a judgment of Grigson J. in the Oxford case, [2004] EWHC 2543, in which he extended the interim injunction until trial, that a joint declaration had been made by the three founders of SHAC that three other defendants had never been members of SHAC. That strongly suggests that there are others who are treated as members of SHAC.

Lastly, it is as well to repeat that the ALF was founded long before SHAC, and that, in contrast with the general animal liberation objects of the ALF, SHAC’s campaign is primarily against HLS and secondarily against all those who can be said to support HLS’s continuation in business in some way. It follows that, although some of those who take action against GSK as members of the ALF will be members of SHAC, others will not be.

Mr Avery was joined as a representative defendant for SHAC at the start of the action. He was represented before Teare J. by Dr Gastone. He served a witness statement of 8 pages. It began by saying that he should not be the representative for SHAC, and that SHAC should be represented by Dr Gastone as in other actions. He said he had no objection to being an individual defendant. He submitted that the claimants had wrongly conflated the action of SHAC and the ALF and that the allegations should be made against the ALF. Following an order by Holroyde J. on 6 May 2009 that Mr Avery should state whether he was proposing to attend the trial, the claimants solicitors received a letter dated 12 May 2009 from Mr Simon Dally saying that Mr Avery did not wish to attend the trial and would not be represented. Mr Dally had previously corresponded on Mr Avery’s behalf.

Mr Avery was one of the founders of SHAC. His public stance has been that SHAC is not responsible for violence and does not condone it. His involvement in the forefront of the SHAC campaign is described in paragraph 99 of Mr Trundley’s witness statement. In passing sentence in January 2009 Butterfield J. stated:

“You are lifelong, veteran, fanatical animal rights activists, as your previous convictions and your participation in this conspiracy demonstrate. I have little, if any, confidence in the assertions now made on your behalfs that you do not propose to continue in this activity. Unless restrained in some way, I consider there is a high probability that you will, and that in doing so you will again cause the really serious psychological harm that you have already inflicted on so many.”

It was submitted to me on behalf of the claimants, and I accept, that the evidence in the Winchester trial makes it impossible to contend that SHAC is an entity whose operations stay within the law. That is consistent with the closing position taken on behalf of Dr Gastone.

Mr Webb was joined as a representative defendant for the ALF at the start of the action. He did not appear before Teare J. and was not represented before him. He was represented before me as I have stated, and he gave evidence. His case is that the claimants have not established a case against him for an order against him as an individual; that the ALF is not an entity against which an order can be obtained; and that he should not in any event be ordered to represent the ALF. He supports the submissions as to the terms of the order made on behalf of Dr Gastone.

Mr Webb is now aged 64. He has been a vegan for many years. He has made it his task to further the cause of beneficial treatment for animals, or what is often called animal liberation. Much of that effort has centred on his post as press officer for the ALF, which he took up in 1991, as I have mentioned. He has been careful as press officer to stay on the right side of the law, and has taken legal advice for that purpose on at least two occasions. He has never been convicted of a criminal offence in connection with animal rights or otherwise. It is apparent from all the evidence which I heard concerning him including his own evidence that he has been very anxious to avoid that. In my view there are two reasons. He does not want to follow the fate of his predecessors into prison, particularly as he has grown older. Second, it is in the interest of the ALF that its press officer should be seen as unconnected with its criminal activities. Since 2004 he has not spoken at any demonstration, rally or public meeting. But he used to do that. As press officer he would also receive anonymous information as to actions claimed on behalf of the ALF and he would arrange publicity for those actions. He no longer receives such information, probably because of the growth of the internet as a publicity weapon. He does, however, receive approaches from journalists concerning ALF actions and he provides comment. He also provides assistance to researchers and others who are interested in the animal rights movement.

Mr Webb’s expressed attitude to the illegal conduct of the ALF when he comments on an incident is neither to condone it nor to condemn it. When asked if he condemns it he will say why it is that activists feel obliged to commit acts of arson, violence and send letter bombs, as it may be. This ambivalence reflects his position as the appointed spokesperson to the press for the ALF. To go to the point, Mr Webb has agreed to act and acts as press officer for a criminal organisation. He does so because it will assist the aims of the ALF and thereby, in his view, animal rights. He assists by providing publicity. The only conclusion to be drawn is that beneath his public stance he approves the aims of the ALF. For he would not otherwise act as its press officer.

Mr Webb’s true position is demonstrated by further material which was put in evidence on behalf of the claimants. There was a film of Mr Webb at a demonstration in 1997 shouting abuse at workers, which made clear his hatred of anyone he considers abuses animals in research. I refer next to two addresses which he gave in the United States. The first was at a SHAC rally in November 2002 in New Jersey. It is clear from this that he was approving of and encouraging violence. His suggestion that his remarks were made as a joke is not credible. Second, at a ‘Conference on Organised Resistance’ in January 2003 he described to his audience how to make an incendiary device. It was clear that he approved of the use of such devices as part of animal liberation. I have watched recordings of these speeches. Mr Webb’s attempts in his evidence to explain what he had said were dishonest. In an interview given in the United States in 2003 reported under the title ‘Staying on target and going the distance’ Mr Webb made it plain that he supported the use of arson to further animal rights.

Lastly, there is a Despatches television programme made in approximately 1998. This programme was made from material gathered by an undercover journalist who infiltrated the animal rights movement and became acquainted with Mr Webb. He secretly filmed his meetings with Mr Webb. The material was heavily edited to make the programme, and the narrative is provided by a third person. The original material, that is the complete recordings of the various meetings, is not in evidence. So it is necessary to be very cautious with the material in the programme. Mr Webb said that following the broadcast the police took all the material, and no prosecution resulted. Mr Webb said that he met with the reporter, Mr Hall, because he thought Mr Hall was wired with a recording device and he wanted to find out what he was up to. That was a lie. He gave Mr Hall instructions for incendiary devices on two occasions, the first time getting Mr Hall to write the instruction and to do so leaving no impression on any underlying page, the second time passing him the instruction while wearing gloves, which, contrary to what Mr Webb stated in evidence, he had plainly put on for the purpose. He also discussed with Mr Hall how any donation provided by Mr Hall might be used, saying that if the money was to be used illegally it would need to be laundered.

This evidence all relates to some years ago. It is important that Mr Webb has chosen to lie about it rather than to say that he has since changed his position and no longer considers that such illegal conduct is acceptable. He also continues in his position as press officer.

I should also refer to an article in the Oxford Student of 25 October 2007, which purported to quote from interviews with Mel Broughton, the founder of SPEAK, and Mr Webb. The interviews were given in anticipation of the opening of the Oxford laboratory. Mr Webb is quoted as saying what the activists would do, for example ‘Our type of home visit involves red paint, breaking windows and criminal damage’. Mr Webb said he would not have used such language, and would have only given information as to ALF methods in the abstract based on the past. I have compared the notes taken by the reporter with the article and it is possible as Mr Webb suggests that what he had said was altered to make it more sensational. I cannot be sure either way. But whatever precisely he said, he was using the opportunity to provide publicity for the methods of the ALF, which is his function as its press officer.

The transcript for a Channel 4 News item for 2 February 2006 records Mr Webb as saying: ‘I don’t believe individual students are going to be targeted but certainly student accommodation provided and funded by the university and student organisations who are promoting and supporting this project would be seen as legitimate targets.’ This is not simply Mr Webb saying what the ALF has done in the past: it is very close to a statement that student accommodation would be targeted. It was said in the context of a campaign in which arson was prominent. It was designed to cause alarm.

In the Oxford case begun in 2005 Mr Webb was not initially a defendant. The ALF was named as a defendant. Following the decision of Gross J. in EDO MBM Technology Limited v Campaign to Smash EDO and Others [2005] EWHC 837 (QB) it was appreciated by the University that a representative for the ALF was required. Mr Webb was then joined. He applied to be dismissed from the action. Omitting some procedural history, it fell to Irwin J. to decide whether the ALF was a body that could be represented under CPR 19.6 and whether Mr Webb should be ordered to be its representative. He answered both questions affirmatively. The nature of the ALF was also considered by Irwin J. in his judgment. The judgment was delivered at an interim stage and without the hearing of oral evidence, in particular without cross-examination. Irwin J. stated that nothing in it was intended to preclude any challenge or argument at trial. Further, the evidence put before him was different to that before me.

By a letter dated 19 May 2009 the claimants’ solicitors asked whether Mr Webb opposed the grant of a permanent injunction against him personally or whether he would give undertakings in lieu, and whether he opposed being made a representative. His solicitors answered on 20 May that he did oppose the grant of an injunction against him personally but in the spirit of compromise he would give undertakings provided that the representative claim was dropped.

Dr Max Gastone’s birth name was Donal O’Driscoll. He has used the name Max Gastone for some 10 to 12 years and has made a statutory declaration in respect of his change of name. He has a doctorate in theoretical physics from the University of Swansea.

The evidence against Dr Gastone is contained in paragraph 101 of the witness statement of Mr Trundley. It is there asserted that he is an active member of SHAC. It states that he has been involved in the campaign against HLS and the claimants referring to: (i) his appearance before Teare J. on 27 April 2007, when he appeared for Mr Avery – who was then the sole representative defendant for SHAC; (ii) his appearance for SHAC on further applications, and his inspection of documents at the claimants’ solicitors’ London offices – which I accept was done to save the expense of it being done by his solicitors who are in Leeds; (iii) his representation of SHAC as a defendant in the HLS case; (iv) his authorship of an article “Operation Achilles” in the Earth First Journal of June 2007, where he describes himself as legal representative of SHAC; and (v) his belief that Dr Gastone has previously participated in protests against GSK sites and was convicted of a public order offence committed during a protest outside a GSK site at Ware on 16 June 2006. I accept that the offence involved Dr Gastone’s failure to comply with a police direction. Other judgments show that this is not the only offence of which Dr Gastone has been convicted in connection with animal rights, but these other convictions were not put in evidence before me. I refer to paragraph 13 of the judgment of Grigson J. in the University of Oxford v Broughton [2004] EWHC 2543 (QB) and to paragraph 32 of the judgment of Owen J. in Hall v Newchurch Guinea Pigs [2005] EWHC 372 (QB). Owen J. was satisfied that the claimants in that case had shown that they needed protection from him. Mr Trundley also stated that, for good reason, he considered that Dr Gastone was the likely author of an article ‘SHAC Attack! Targeting Companies Animal Rights Style’ in Do or Die Magazine, which urges the making of ‘home visits’, and the entering of offices to speak to staff. Mr Trundley gave oral evidence about this and I would be satisfied on the basis of his evidence that the very strong likelihood is that Dr Gastone wrote the article. As I will say later, given that Dr Gastone chose not to give evidence himself, I conclude that I can be sure of it.

A letter similar to that written to Mr Webb’s solicitors on 19 May 2009 was also written to Dr Gastone’s solicitors. They did not reply.

The Protection from Harassment Act 1997 was amended by the Serious Organised Crime and Police Act 2005 as from 1 July 2005. The scheme of the Act prior to amendment had been construed to provide protection from harassment for individuals only. I refer to DPP v Dziurzynski [2002] EWHC 1380 at paragraph 33, and Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34, [2007] 1 AC 224 at paragraph 19. It was submitted on behalf of the corporate claimants that the amendments permitted them to seek an order under the Act. This was denied on behalf of Mr Webb and Dr Gastone.

The scheme of the Act in relation to England prior to the amendment was that section 1(1) provided that a person must not pursue a course of conduct amounting to harassment of another, and which he knew or ought to have known would do so. By section 2(1) pursuing a course of conduct in breach of section 1(1) was made a criminal offence. Section 3(1) provided that a breach or apprehended breach of section 1(1) might be the subject of a civil claim by the victim. Section 3(2) referred to damages. By section 3(3), where an injunction had been granted and the ‘plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction’, he might ‘apply for the issue of a warrant for the arrest of the defendant’. Section 3(6) made breach of an injunction a criminal offence. Section 7(1) provided that reference to harassing a person include alarming the person or causing the person distress. Harassment is not otherwise defined.

The amendments to the Act are as follows. A new section 1(1A) provides that a person must not pursue a course of conduct which involves the harassment of two or more people, which he knows or ought to know would do so, and:

“(c)

by which he intends to persuade any person (whether or not one of those mentioned above) –

(i)

not to do something that he is entitled or required to do, or

(ii)

to do something that he is not under any obligation to do.”

Section 2 was amended to make breach of section 1(1A) an offence. A new section 3A was inserted to enable any victim of an actual or apprehended breach of section 1(1A) by any person, or any person falling with section 1(1A)(c), to apply for an injunction restraining that person from harassing ‘any person or persons mentioned or described in the injunction’. Importantly, a new section 7(5) was added as follows:

“(5)

References to a person, in the context of the harassment of a person, are references to a person who is an individual.”

A new section 7(3A) provides that, if a person’s conduct is aided, abetted, counselled or procured by another, that conduct shall additionally be taken to be the conduct of the other.

By section 5 and schedule 1 of the Interpretation Act 1978, in a statute, unless a contrary intention appears, “Person” includes a body of persons corporate or unincorporated.’ That is the context in which section 7(5) is to be understood. Section 7(5) is necessary because otherwise there is the possibility that the sections of the Act including the new section 1(1A) could be read as covering companies who are harassed. Section 7(5) makes it clear that this not so. By making that clear it also makes clear that it is only the victims of harassment who are so limited. So ‘person’ in section 1(1A)(c) is not limited to individuals and may be a body corporate. Thus a company may apply for an injunction pursuant to section 3A where the company falls within section 1(A)(c). The White Paper which preceded the Act made this intention very clear, but, there being no ambiguity, there is no need to refer to it. It was suggested that this construction gave rise to difficulties with sections 5 and 5A. I do not think that this is so. I conclude that the corporate claimants are entitled here to claim relief under section 1(1A) of the Act.

CPR 19.6 was inserted into the Civil Procedure Rules by amendment in 2000. It replaced in simpler terms the provisions of RSC Order 15 rule 12 which had been preserved when the CPR were introduced. It is headed ‘Representative Parties with same interest’. It provides:

The Protected Persons are defined as:

In paragraph 88 of his witness statement Mr Trundley sets out why the definition needs to be as wide as it is. This was not challenged. He has contacted all GSK’s employees by e-mail asking that anyone who did not wish to be represented should contact him. Only one person, Dr James Roger, has said he does not wish to be represented, and Dr Roger will be excepted. It would be impossible for Mr Trundley to seek the consent of the majority of other persons within the definition, and he has not sought any wider consent. Consent is not required: John v Rees [1969] 2 All E R 274 at 284, Emerald Supplies Ltd v British Airways plc [2009] EWHC 741 (Ch), paragraph 24, among other cases.

I am satisfied that the Protected Persons have a common interest in preventing acts of harassment by animal rights activists acting in the names of SHAC or the ALF, and that Mr Trundley is an appropriate person to represent them Miss Harrison suggested a difficulty in that a Protected Person have might been injured or otherwise have suffered loss as a result of harassment and that he would have lost his right to a claim for damages as a result of being party to the order. The majority of claims for personal injury are now barred by limitation, but not those for damage to property. No such claims have been intimated. An injunction has been in place for over two years. It is a technical objection rather than a real problem.

An order was made in a similar situation by Gross J. in Edo MBM Technology v Campaign to Smash Edo [2005] EWHC 837 (QB) which was in similar though less wide terms: I refer to paragraphs 5 and 36 of his judgment.

It is not sought to make the ALF a defendant for the good reason that the ALF has no legal personality and only entities having legal personality can be parties to an action. That is so whether or not the ALF can properly be described as ‘an unincorporated association’. I have previously set out the order that was sought. It is that Mr Webb should represent ‘all persons acting as members, participants or supporters or in the name of the unincorporated association known as the Animal Liberation Front’. Mr Girolami’s case on the claimants’ behalf was that it did not matter whether or not the ALF was an unincorporated association: the essence was the reference to those acting in the name of the ALF. Miss Harrison suggested that this was not open to him on the pleading. I resolved the problem by granting permission to amend to insert the words ‘whether or not an unincorporated association and whatever its nature may be’ at the end of the first sentence of paragraph 6 of the Particulars of Claim.

CPR 19.6 does not refer to unincorporated associations. It refers to persons having the same interest in a claim. Further, the description ‘unincorporated association’ has been used in different ways in different situations. There is a section on it in Chitty on Contracts at paragraph 9-064 and following in volume 1 of the thirtieth edition: but it is left undefined. In the case of the Conservative Office v Burrell [1982] 1 WLR 522 the tax regime for the Conservative Party depended on whether it was an ‘unincorporated association’ and so was to be treated as a company as provided by section 526(5) of the Income & Corporation Taxes Act 1970. Lawton LJ stated at page 525:

“I infer that by “unincorporated association” in this context Parliament meant two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and upon what terms and which can be joined or left at will. The bond of union between the members of an unincorporated association has to be contractual.”

Another example involving facts some way from the present is Roche v Sherrington [1982] 1 WLR 599, where the Roman Catholic organisation, Opus Dei, was described as an unincorporated association.

In Michaels (Furriers) Limited v Askew, Court of Appeal 23 June 1983, Times Law Report 25 June 1983, the entity under consideration was Animal Aid. Dunn LJ stated that Animal Aid was ‘an unincorporated association campaigning against cruelty to animals.’ He said that the court had no knowledge of its membership, constitution or finances. He stated:

“Care must be taken to ensure that Order 15 rule 12 is not abused. But where a number of unidentified persons are causing injury and damage by unlawful acts of one kind or another, and there is an arguable case that they belong to a single organisation or class which encourages action of the type complained of, and their actions can be linked to that organisation, then the rule enables the court to do justice in the particular case.”

Purchas LJ stated that the first question to be answered was whether there was evidence that Animal Aid was ‘an identifiable if informal organisation of people having the same interest in the proceedings, namely an interest in furthering the campaign against the fur trade and/or by defending proceedings designed to inhibit the furtherance of that campaign.’ He concluded that there was a real prospect of the claimants establishing this.

The above passage from the judgment of Dunn LJ was cited by Stuart-Smith LJ in Monsanto Plc v Tilly, Court of Appeal, 25 November 1999. That case was concerned with protest against GM crops and an entity named GenetiX Snowball or GXS. Stuart Smith described it as an unincorporated association. He stated:

“40.

Although it is not correct to say that there are members of GXS as such, the judge was right in my view to regard it as an unincorporated association. Monsanto rely on the following features of GXS as an organisation: It is directed and managed by a co-ordinating group; it has and publicises a postal address, telephone line, facsimile number and e-mail address; it has received [and presumably dealt with] over a thousand enquiries to its office; it has a ‘comprehensive’ web site and a web site administrator; it has a bank account and seeks donations; it has published a 100 page handbook, priced at £3.50 and distributed 600 copies; it publishes a newsletter; it has published a video film, priced at £3.50 which has been ‘well received’; it has a Press/Media Liaison; it has held over 40 public meetings; it trains people to take direct action as part of its campaign; it has undertaken a number of direct actions, the direct action has involved over 70 people; it has branches or local groups which meet regularly in Brighton, London, the South East, and branches in Scotland, Bristol and Cambridge; it acts as a co-ordinating office for proposed uprooting action by its campaigners.

41.

Mr Gordon submits that it is essential in a representative action that all the parties have the same interest and in this case, he says, that all the members do not. I have not followed his argument on this point. There is no question of vicarious liability on the part of the respondents for acts of others who may come hereafter and uproot Monsanto’s crops. Moreover, the injunction only applies to conduct which falls within its terms; some other and different conduct involving interference with Monsanto’s rights are not covered. What is important here is that it is a central tenet of GXS that action be taken by uprooting Monsanto’s (and others’) GM crops. It is that activity which is crucial to the campaign.”

It was held appropriate to make a representation order.

Questions as to representation orders in the context of protestors also arose in Heathrow Airport Ltd v Garman [2007] EWHC 1957 (QB). Swift J. asked two questions: did the group have the characteristics of an unincorporated association; and could the proposed representatives be taken fairly to represent the members? With due respect to my fellow judge, I have concluded that asking whether the defendant proposed to be represented is an unincorporated association is not the most helpful approach.

The most recent case cited to me which rule 19.6 has been considered was that of the Chancellor in Emerald Supplies Ltd v British Airways PLC [2009] EWHC 741 (Ch). The claimants were importers of cut flowers. They contended that BA had been party to agreements with other airlines to fix prices and share the market in air freight services for flowers. The claimants sought an order that they be representatives of all other purchasers of such services at inflated prices. The application was refused on two grounds. The first was that it would be impossible to say whether any represented claimant was a claimant until the action had succeeded. The second was that the claim was for damages, and whether any particular claimant could establish damage was peculiar to his individual circumstances. I refer to paragraphs 35 and 36 of the judgment. The case deals with a situation very different to the present one. The judgment reviews the development of case law from Duke of Bedford v Ellis [1901] AC 1. The cases cited establish that in particular situations there will, or may be, bars to a representation order as in Emerald Supplies itself. I do not think that I need review them here.

Lastly, I refer to a case which at first sight does not deserve citation because it is a decision which was made on an appeal from the judge’s refusal on an ex parte order. However, what was said does, I think, point the way. The claim was in respect of the passing off of pirate tapes. In EMI Records v Kudhail [1985] FSR 36 at 37 Sir John Donaldson MR stated:

“The evidence also discloses that there is a link between all those who are dealing in these cassettes in the sense that they have a common interest in preventing anybody finding out where the cassettes come from and each must know some of the other members of the group otherwise they would not be able to obtain the cassettes. The secrecy of the organisation has been such that the plaintiffs have been quite unable to find out the source of the goods or, indeed, anything about the group. But prima facie there is here a group, and prima facie there is a sufficient common interest between the members of the group at least to justify the grant of ex parte relief. It will of course be open to any member of the group to come forward and ask for the order to be modified if he can provide evidence which would justify that course.”

The last sentence arises from the order having been made ex parte. But there is an equivalent, or partial equivalent here in rule 19.6(4)(b).

The concept of defendants having the same interest in a claim may appear awkward. But what it means in circumstances such as the present is that they have the same interest in resisting and being free of the injunction so they may continue their conduct unrestrained. As the term ‘unincorporated association’ is uncertain in its meaning and is not mentioned in rule 19.6, I do not think that it really advances the issue to ask whether the defendant proposed to be represented may be described as an unincorporated association. In my view, it is better to ask whether there is a sufficient sharing of interest between the parties intended to be represented to bring the case within the rule, and to make a representation order appropriate.

Those who act in the name of SHAC and of those who act in the name of the ALF do have a common interest in being able to continue their campaigns by acts of trespass and harassment among others. It accords with the decisions in the Furriers and Monsanto cases to hold that there should be a representation order against the ALF in present case. I am satisfied that it is appropriate to make one, subject to the identification of a person to be named as the representative. A representation order is not resisted in the case of SHAC : the point is as to Dr Gastone as the representative.

Mr Girolami accepted that the claimants must establish that there should be an injunction against Mr Webb as an individual before joinder as a representative could be considered. The case for Mr Webb pressed by Miss Harrison was that there was no evidence that sufficiently showed that an injunction against him would be appropriate.

Miss Harrison submitted that applying the reasoning of the House of Lords in relation to anti-social behaviour orders in R v McCann and Manchester Crown Court [2002] UKHL 39, [2003] 1 AC 787, the facts necessary to establish an order against Mr Webb must be proven to the criminal standard rather than on the balance of probabilities. Mr Girolami cited the decision of Tugendhat J. in Hipgrave v Jones [2004] EWHC 2901 distinguishing that and other cases and holding the facts relied upon to support the making of an order under section 3 of the Act need only be proved on the balance of probabilities. Miss Harrison submitted that Hipgrave was wrongly decided. Tugendhat J. pointed to the fact that ASBOs are sought by a public authority, whereas any remedy under the Act is a private remedy sought by a person, whether individual or company. He pointed out that, if all that was sought under section 3 was damages, the arguments for applying the criminal standard fell away because no criminal conviction for subsequent breach of an order can follow: it would be odd if a different standard applied depending on the remedy sought. He also observed that there might be cases where no harassment had yet taken place but harassment was apprehended. He reviewed the aspect of human rights. He concluded that this did not of itself require the application of the criminal standard, and that must surely be right.

Having concluded that the civil standard was applicable Tugendhat J. considered what that standard required, citing Re H [1996] AC 563 at 586 where Lord Nicholls stated that, the more serious an allegation was, the less likely it was to have occurred and therefore the stronger the evidence which was required: ‘built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.’ This was in the context of non-accidental injury to children. The burden of proof in that context was revisited by the House in re B [2008] UKHL 35. It was there held that the standard of proof was but the simple balance of probabilities, irrespective of the seriousness of the allegations or of the consequences, and the inherent probabilities were simply to be taken into account, where relevant, in deciding where the truth lay.

The context of the House of Lords’ decision in re B is entirely different from that of the House in McCann, and the reasoning is appropriately different. Shortly stated, the issue for me is whether the application by analogy of the reasoning in McCann to the Protection from Harassment Act 1997 requires the conclusion that the underlying facts must be proved to the criminal standard. I do not think that it does. I consider that Tugendhat J. reached the right conclusion as to that for the reasons that he gave. His reliance on re H has now to be read in the light of re B.

A second issue arises as to proof in relation to the likelihood of future tortious conduct. The law as to this is reviewed in the 7^th edition of Spry’s Principles of Equitable Remedies at page 46:

“Therefore the criterion by which the degree of probability of future injury must be established is not fixed or invariable but rather depends on the various other relevant circumstances of the case. Hence the greater the prejudice or inconvenience that may be caused by the apprehended injury, if it occurs, the more readily will the court intervene despite uncertainties and deficiencies of proof; and it has been said by Russell L.J. that the “degree of probability of future injury is not an absolute standard: what is to be aimed at is justice between the parties, having regard to all the relevant circumstances”. The court will take account of all relevant matters and will make such orders as appear most just in view of the various interests of the parties and of third persons.”

I accept this as an accurate statement of the law.

The case in support of an injunction against Mr Webb does not suggest that he is himself likely to carry out acts of trespass and harassment or that he has himself done so for some time. (His conduct at the demonstration in 1997 to which I have referred involved harassment. He states that he last spoke at a demonstration in 2004.) The case is that there is a clear likelihood that he will counsel, aid or abet acts of trespass and harassment against the claimants (which include the Protected Persons) in the future, thus bringing him within section 7(3A) of the Act.

I have set out my findings as to Mr Webb’s past conduct. I am satisfied of those matters to the criminal standard, that is to say, I am sure, save in respect of the report of what he had said in the Oxford Student, as to which I have already expressed my reservation. I am satisfied that he is not the man that he purported in the witness box to be, but is someone who will provide active support and encouragement for the illegal activities of the ALF behind the scenes. That is what he has done in the past. He has not said that he has changed and regrets what he did. Instead he has lied to try and explain it away. Further he remains the press officer for the ALF, an organisation whose aims are stated to involve illegal conduct. By remaining press officer he shows his continuing approval of the ALF and its means of operation. I am satisfied that there is a substantial risk that he will aid, abet, counsel or procure illegal conduct against the claimants in the future. Given the nature of the conduct threatened it is clearly just and appropriate that he should be restrained from that conduct. I find that grounds for an injunction against Mr Webb personally are made out.

It was submitted by Miss Harrison that the order might inhibit Mr Webb’s right to freedom of expression, contrary to Article 10. A proportionate restriction for the prevention of crime is permissible. I do not consider that the proposed order would restrict Mr Webb’s freedom of expression other than as it ought to be restricted, namely by preventing him from encouraging others to commit criminal acts.

Is Mr Webb an appropriate person to be a representative defendant for the ALF? As the press officer of the ALF, the person who has explained its actions and spoken for the ALF for many years, there can be no doubt that he is eminently suitable.

Contrary to the initial expectation Dr Gastone did not give evidence although he attended most of the trial. No reason was given for his not giving evidence. It was plainly a tactical decision that he might lose more from being cross-examined than he would gain if he gave evidence. I have to ignore his witness statement.

Mr Thacker submitted on Dr Gastone’s behalf that the claimants had not established a case for an injunction against him, and that in any event he should not be a representative defendant for SHAC, it being sufficient that Mr Avery should represent SHAC.

I am satisfied so that I am sure that Dr Gastone is a central figure in SHAC, which is now clearly shown by the Winchester trial to be an organisation concerned with the carrying out of illegal acts. Dr Gastone has not said and could not in reality say that this has come as a surprise to him. He is somebody who has appeared on SHAC protests where harassment is standard. Taking into account his failure to give evidence I can be sure that he was the author of the article ‘SHAC Attack! Targeting Companies Animal Rights Style’. It is plain from that that he is a man who favours criminal conduct as a means to the animal rights end, and encourages others to adopt it. The case for an injunction is made out both on the basis that he is otherwise likely to carry out acts sought to be injuncted and on the basis that he is likely to aid, abet, counsel or procure others to do so.

It was sought to join Dr Gastone because the claimants’ advisers foresaw possible problems if SHAC were to be solely represented by Mr Avery from prison. In a witness statement resisting his joinder Dr Gastone submitted that he should not be a representative for SHAC because he held no position in SHAC. I have mentioned that he was the representative defendant for SHAC in the case brought by HLS against SHAC. He did not object then. In my judgment it is appropriate that SHAC should be represented by someone in addition to Mr Avery as Mr Avery is serving a substantial prison sentence. It is appropriate by reason of what Dr Gastone has done for SHAC in the past in connection with legal proceedings that it should be him.

Following his conviction there can be no doubt as to Mr Avery’s past conduct. I have referred to what Butterfield J. said when passing sentence. I have no doubt that it is appropriate that Mr Avery should himself be subject to an injunction when he is released from prison. He is the subject of an anti-social behaviour order, but the two do not overlap. Nor can there be any doubt given his central position in SHAC that it is appropriate that he should be a representative defendant.

A large number of amendments to the order proposed on behalf of the claimants were suggested by Mr Thacker on the basis of a draft prepared by counsel who had preceded him in the case. They largely fell into three categories: unnecessary drafting changes such as calling ‘Demonstration Areas’ ‘Designated Protest Areas’; changes of substance which sought to narrow the scope of the order; changes which were unclear in their purpose but in my view blurred the effect of the order. I was taken through them by Mr Thacker, and then by Mr Girolami. There is no point among them which is of such importance to merit individual discussion in the judgment. It is enough to say that I was not persuaded that any of the proposed changes should be made. I record that I have been asked to expand on this paragraph. I consider that the categories I have listed are a sufficient indication in the circumstances of why I have ruled against the proposed changes.