Novartis Pharmaceuticals UK Ltd & Ors v Stop Huntingdon Animal Cruelty ('SHAC') & Ors

The Claimants apply pursuant to CPR 3.1(7), CPR Part 25 and Section 3 of the Protection against Harassment Act 1997 (‘the 1997 Act’), to amend the terms of an interim injunction (referred to hereafter as ‘the injunction’) granted by Blake J on 29 January 2008, and continued by me on 21 October 2009, when by consent I ordered Summary Judgment on the claim for final injunctive relief, and adjourned determination of the final terms of the order until not before 9 February 2010.

The First Claimant is a pharmaceutical company and represents (pursuant to CPR 19.6) all members of the Novartis Group of companies who retain employees. The Second Claimant is the Head of Security of the First Claimant, and represents (again pursuant to CPR 19.6) the employees of the Novartis Group of companies, and also the Protected Persons (as defined in the injunction).

The Defendants are animal rights activists who consider that they have a connection with Huntingdon Life Sciences (‘HLS’), which conducts clinical testing on live animals. As I have already indicated, the Defendants’ stated aim is to close down HLS. The Claimants are secondary targets of this campaign. The First Defendant Stop Huntingdon Animal Cruelty (‘SHAC’), its members and all protestors conducting activities against the Claimants are represented (again pursuant to CPR 19.6) by Dr Max Gastone. The Second, Third and Fourth Defendants are prominent founding members of SHAC. All three are currently serving long sentences of imprisonment imposed by Butterfield J in the Crown Court at Winchester in January 2009 for an offence of conspiracy to blackmail arising out of their activities in connection with the SHAC campaign against HLS and other secondary targets – including the Claimants. In his sentencing remarks, Butterfield J described the Second, Third and Fourth Defendants as “life long, veteran, fanatical animal rights activists”. He made Anti-social Behaviour Orders against all three, until further notice, protecting the Claimants and others. The Second, Third and Fourth Defendants have been served with the action, but have given no indication of any desire to take any part in these proceedings.

The injunction restrains protestors (as defined in the injunction) from pursuing a course of conduct which amounts to harassment of protected persons (as also defined in the injunction) contrary to the 1997 Act. In particular the injunction forbids assaulting, molesting, harassing, threatening, or otherwise interfering with, the protected persons; photographing or videoing them or their vehicles; making any threatening communication of any type, or publishing in any way any material serving to identify a protected person. The injunction also prohibits compelling any protected person not to do something that he is entitled or required to do, or to do something that he is not under any obligation to do. The injunction goes on to identify premises around which it creates exclusion zones in which, subject to strictly limited exceptions, picketing, demonstrating or loitering are prohibited. The exceptions are that at the First Claimant’s business sites, including its principal site in Horsham in Sussex, demonstrations, protesting or other animal rights related activity are permitted to take place once a week with strict limitations as to notice, numbers, timing, precise location, and the use of amplified sound. Finally, the injunction provides, again on strict terms, that not more than once a month a lawful and peaceful procession on the public highway may enter any or all of the exclusion zones, and that once a year at the Horsham site there may be an assembly, (as defined in the Public Order Act 1986 [‘the 1986 Act’], or otherwise), provided that appropriate notice is given to the Police, and that there is strict compliance with any conditions laid down by the Police under section 14 of the 1986 Act.

The Claimants are on notice that the annual assembly at the Horsham site is to take place tomorrow on Saturday 31 October 2009, which is, of course, Halloween, and equally obviously only shortly before bonfire night.

In view of their concerns about the forthcoming assembly the Claimants contend that the injunction should be amended in accordance with their latest draft, as follows:-

“7.9.3

for the avoidance of doubt no assemblies or processions whatsoever shall take place as defined by the Public Order Act 1986 or otherwise, other than those assemblies that may be permitted under the terms of sub-paragraph 7.8 above PROVIDED THAT one assembly may take place once every calendar year at the Horsham site only PROVIDED THAT the Protestors shall have first notified the police not less than 6 working days beforehand AND there be strict compliance with any conditions laid down by the police under s.14 of the Public Order Act 1986;…

7.10

At any public order assembly or procession which may take place on 31 October 2009 and in order to prevent the Claimants’ employees from being harassed or caused anxiety, alarm and/or distress; the protestors must not:-

7.10.1

Wear or carry balaclavas, face coverings, masks (whether skull, death, ‘Scream’, Halloween or otherwise) and/or blood splattered clothing or costumes;

7.10.2

Carry, unfurl and/or exhibit banners, signs, posters and/or placards and/or wear clothing which alleges that the Claimants and/or its employees murder, torture, abuse and/or otherwise unlawfully kill animals;

7.10.3

At any time carry or ignite fireworks or carry or operate pyrotechnics.

On behalf of the Claimants, Mr Lawson-Cruttenden submits, in summary, that in the course of various cases before the Courts, both civil and criminal, over the last decade or so, and in particular since January of this year, it has been established that the Defendants have close links with one or more animal rights terrorist groups, with whom they act in a concerted fashion, to seek to bring pressure on HLS and its employees, and also on companies, associated whether directly or indirectly, with HLS and on the employees of such companies, with the avowed intention of closing down HLS. The Claimants assert that, typically, the concerted action involves the terrorist element carrying out direct, and generally covert, unlawful action against HLS, associated companies, and their employees, preceded, and or followed up by, overt harassment of the employees by the Defendants. In the result, the Claimants submit that the Defendants are persons without respect for the law who act, not in pursuit of any political or public interest cause, with the particular Article 10 sensitivities that that involves, but rather who are acting in a concerted quasi terrorist manner to seek to bring down the Claimant companies who are doing no more than what the law in this country requires of them in relation to animal testing, which is conducted in a strictly controlled environment, and means that the Claimants’ conduct of such testing is unquestionably lawful.

In particular, the Claimants rely on actions against their employees worldwide over the last 9 years of the campaign against them, both before and after Blake J’s order in January 2008; on events shortly before and at the first permitted annual assembly at Horsham which took place on 26 April 2008; and on actions against their employees worldwide, including in this country, since April 2008. The Claimants further submit that against that background, it is clear that the choice of Halloween for the annual assembly at Horsham, and the proximity to bonfire night are no coincidence, but rather a clear portend of the Defendants’ intention to use the occasion to commit crimes and/or torts in order to harass the First Claimants’ employees yet further in various different ways, not specifically covered in the injunction to date, namely by wearing balaclavas, face coverings, masks (whether skull, death, scream, Halloween or otherwise) and/or blood splattered clothing or costumes, or exhibiting banners, signs, posters and/or placards, and/or wearing clothing, which have slogans on them which allege that the Claimants and/or its employees murder, torture, abuse and/or otherwise unlawfully kill animals, but which would contravene the 1997 Act. The Claimants further assert, that notwithstanding the presence of the Police in numbers at the forthcoming assembly, and the breadth of powers available to the Police to deal with any criminal activity and/or breach of the injunction as currently drawn, the conduct of the Police hitherto causes the Claimants to believe that the Police will not protect its employees from further harassment, the Police being more interested in getting through the assembly and procession with the least possible raising of the public order temperature, unless the injunction is amended in the ways now contended for, which Mr Lawson-Cruttenden asserts would involve only very limited inroads into the First Defendants’ Article 10 and 11 rights.

The First Defendant, by its representative Dr Gastone who has presented his arguments with commendable clarity and moderation, submits, in summary, that:-

I should add that, in part because he is unwell, and in part because of the expense involved, Dr Gastone was not able to travel down from the North of England yesterday, although he was present and made his submissions the day before. In the event, although I sat, briefly, yesterday afternoon, all relevant submissions yesterday on both sides were made by e-mail.

Against that background, I now propose to deal with matters under the following headings:-

This action was begun, indirectly, by the Chiron Corporation Limited and associated companies (‘the Chiron Group’) against the same Defendants in early 2004. First and second interim injunctions were granted respectively by Hallett J (as she then was) and Royce J in February and March 2004 – see the judgment of Royce J [2004] EWHC 493 (QB). In June 2004 the action was stayed to await the outcome of an action brought by HLS itself. In April 2006 the Novartis Group acquired the Chiron Group, in a takeover. An action was then begun by the Novartis Group against the Defendants, and on 24 January 2007 Underhill J granted an interim injunction – see [2007] EWHC 592 (QB). In November 2007 both the Chiron Group and Novartis actions were ordered to come on for trial only after the completion of an action brought by Oxford University – which has yet, in fact, to be completed. In January 2008 Blake J subsumed the Chiron Group action and its interim injunction into the Novartis action and, as I have indicated, granted the injunction – see [2008] EWHC 410 (QB).

There have been a number of actions, brought by HLS and other companies, seeking to restrain the activities of the Defendants and others. An action brought by HLS itself was tried by Holland J in 2007 – see his judgment at [2007] EWHC 522 (QB). An injunction was granted against both SHAC and other protestors (as then defined in that injunction).

In BayerCropScience Limited v SHACand others (the same Defendants as in this action), Treacy J granted an interim injunction on 23 April 2008 – see [2008] EWHC 1069 (QB). Treacy J concluded, amongst other things, that:-

In passing sentence on the Second, Third and Fourth Defendants, and others, in January 2009 at the Winchester Crown Court, Butterfield J said, amongst other things, as follows:-

“..Each of you is passionately opposed to the use of animals in research laboratories. I accept that for each of you the principal motivation for your blackmail was not financial or other personal gain, but stemmed from your genuinely held concerns about cruelty to animals. You have every right to hold those views, every right to express them and every right to protest against the law that requires medicines to be tested on animals.

Freedom of expression and the right to lawful protest are important rights. But so is the right to conduct vital biomedical research in ways not really permitted but required by our law, and so is the right of business to carry on lawful trading with companies carrying out that research.

You, Greg and Natasha Avery and Heather Nicholson, decided that lawful protest, reasoned argument and the use of political pressure was not going to achieve your clear ambition to close down Huntingdon Life Sciences. And so you embarked on a campaign of terror, persecuting and harassing the employees of any company whom you even suspected of having links with Huntingdon Life Sciences so that, you hoped, they would cease trading with the laboratory thereby ultimately bringing down Huntingdon Life Sciences.

You cloaked your activities with what, in my judgment, was a hypocritical sham pretence that SHAC, the organisation you three set up, was a vehicle for legitimate lawful protest in an area of public concern. It was nothing of the sort. It was a vehicle used to terrorise ordinary, decent traders carrying on perfectly lawful businesses.

You developed a highly organised, well researched and meticulously executed plan of attack. You used deception to find out which companies were actually connected with Huntingdon Life Sciences as its clients, its suppliers or contractors working for them. Once you discovered or even suspected that a company or business was connected with the laboratory, the company would be contacted, the work of HLS explained to them and they would be invited to stop trading with the laboratory.

If they agreed, and many did for fear of what might happen if they did not capitulate, that was that. If not, the name, address and other contact details of the company were published on the SHAC website.

In addition, you ascertained the home addresses and other personal details of senior employees of the companies. How you achieved that has not been for the most part revealed by the evidence, but your intelligence, the fruits of the research carried out by you or on your behalf, gave you information about ex-directory telephone numbers, the names of the wives and even the children of some of the employees, the days on which their bins were emptied and the extent of any security measures in place at their homes.

The consequence of publication of the company details on the website was that the company and its employees became the target of criminal activity. You used all the tactics and more. Tactics described in detail in the urban terrorists’ handbook, the so called ABIX 4 document.

You, or those working under your direction and control, embarked upon a ruthless, sustained campaign designed to strike such fear into the minds of the employees that the companies would ultimately capitulate in the face of your intimidation.

The criminal activity included making false allegations of paedophilia, which were circulated to neighbours of the employee, and sending hoax bombs to the business premises or home addresses of an employee; hoax bombs which were extremely realistic and which resulted in the bomb squad having to attend to deal with the packages.

The activity also included the sending of sanitary towels allegedly contaminated with the AIDS virus, demonstrations and damage at the homes of members of staff, threats or actual criminal damage to property, threat of physical assault, threatening and abusive telephone calls, emails and letters, repeated silent calls often in the middle of the night, delivery of unwanted material from mail order companies and the co-ordinated sending of emails or telephone calls so as to block the company’s systems.

Then there were the demonstrations outside company premises and disruptive trespasses into company premises. Video footage of those demonstrations were taken by demonstrators and I have seen a number of them. There is little if any attempt to explain the cause SHAC promoted. The demonstrations were designed quite simply to create a climate of fear at the company.

There were often violent and abusive words shouted through megaphones at staff. The video cameras were pointed at staff and at the registration numbers of their parked cars in order to suggest that their homes would be identified for future violence there. There were threats to get the staff, to target them personally, even to kill them; many of the staff being women who were plainly very frightened at what was happening.

..The effect of this relentless, sustained, merciless and ruthless persecution was as serious as it was inevitable. There was evidence before the jury of the targeting of employees of no less than 40 separate companies over a six year period.

Many of the employees of those companies were deeply affected by what you organised. When a hoax bomb is sent to a company and the premises are evacuated and the bomb squad attends, it is not just the senior management who are affected, it is all the staff. There was evidence that in at least one company counselling had to be arranged for some of the staff, so disturbed were they by what had happened.

The climate of fear…would permeate a whole organisation just as you intended: when are they coming back; what will it be next time? And so much worse for the individuals who were targeted at home.

…I accordingly propose make an Anti-social Behaviour Order essentially in the terms sought by the Crown. In making that order, and determining the terms and length of it, I have had regard to the submissions made, first that such an order is inappropriate, it is not necessary to protect persons from further acts likely to cause harassment or distress, particularly when on release each of you will be subject to licence conditions; and further, when the effect of the custodial sentences on your attitudes and behaviour cannot be known.

I reject that submission for reasons that I have already sufficiently expressed.

Second, objection is taken to the inclusion of paragraph 1 on the grounds that the prohibition will prevent those of you affected by it from engaging in lawful campaigning and protest and as such is not proportionate and is in breach of your human rights under Article 10 and 11. Further it is said that paragraph 1 is insufficiently clear in its terms and would not enable a breach of the order to be readily identified.

I reject these submissions. In my judgment, your conduct during demonstrations outside victim company premises and your incitement, organisation and encouragement of criminal activity at every opportunity, including on the SHAC website, makes it abundantly clear that such an order is essential.

The meaning of paragraph 1 is obvious and plain. By your conduct you forfeit your Article 10 and 11 rights in this discrete and specific area f protest. They remain intact, of course, in relation to any other area of protest.”

In SmithKline Beecham PLC and others v Greg Avery, Webb and Gastone (as representative with Avery of all persons acting as members participants or supporters in the name of SHAC) there was a trial before Jack J earlier this year. He gave judgment granting an injunction on 26 June 2009 – see [2009] EWHC 1488 (QB). Jack J set out the evidence in that case of the campaign against SmithKline by both SHAC and the ALF. Jack J accepted, and Dr Gastone effectively conceded, that the evidence in the Winchester Trial made it impossible to contend that SHAC is an entity whose operations stay within the law. Jack J further concluded that Dr Gastone was still an active member of SHAC, indeed that he was a central figure in it, who favoured criminal conduct as a means to the animal rights end and encouraged others to adopt it. In particular, Jack J found that Dr Gastone was the author of an article entitled ‘SHAC attack’ published in a magazine called Do or Die magazine, which urged, amongst other things, visits to the homes of employees of target companies. Jack J refused leave to appeal in that case. Dr Gastone has told me that he is seeking to obtain Legal Aid in order to mount an application to the Court of Appeal, but that thus far no application has, in fact, been made.

On 23 July 2009, Hamblen J granted summary judgment to the Claimants in the BayerCropScience case, to which I have already referred. In so doing, Hamblen J relied upon the following:-

It was against that background, that Dr Gastone realistically conceded the principle of Summary Judgment before me in this case too.

In addition to the judicial findings to which I have already made reference, the evidence before me as to the background prior to April 2008 includes the following:-

As to the events before and at the march on 26 April 2008, the evidence includes the following:-

As to the events since 26 April 2008, the evidence includes the following:-

It was those recent attacks, and publicity about them in a report on the Bite Back website on 14 October 2009, together with a ‘call to arms’ on that site and on the directaction.info website, combined with the announcement on the First Defendant’s website of the intended demonstration on 31 October (including the use of skeleton masks, zombie suits and blood splattered lab coats) which caused the Claimants to lodge this application on 14 October.

Whilst there is no evidence before me as to how many employees will be present at the First Claimant’s premises on Saturday, Mr Lawson-Cruttenden asserts that there will about 40, and that other employees are likely to be going about their lives in the centre of Horsham during the course of the day.

At the Court’s request, after the conclusion of the hearing on 28 October 2009, the then latest version of the proposed amendments was e-mailed to the Sussex Police, and they were again invited to make any comments they wished in order to assist the Court.

A helpful reply was received on 29 October from Superintendent Davies, who was the Gold Commander in April 2008, and is designated to be so again on Saturday. Superintendent Davies makes clear that, given the shortness of time involved, the views that he expresses are necessarily and entirely his own alone.

He raises what are, in my judgment, sensible concerns as to the practicalities of enforcing a number of the amendments sought, in particular those in relation to banners and clothing, and points out that the Chief Officer has not pre-authorised any conditions under sections 12 and 14 of the Public Order Act 1986. He states that only a small portion of those attending last year wore masks, and that they were the individuals who were involved in the incident at the Police barrier outside the First Claimant’s premises. He indicates that pre-authorisation for the seizing of masks has been discounted this year, but that it could be authorised on the day, if circumstances demanded it. He indicates, unsurprisingly, however that the practical implementation of such action on the day would need to be very carefully applied, and would require significant police resources at the early stages of the assembly, which has the potential to raise tension, and thus (I would add) the risk of disorder. He also points out that the Police have statutory powers in relation to fireworks, and that he would expect those powers to be invoked should fireworks be used.

Finally, Superintendent Davies produces a document entitled ‘Statement of Policing Style and Intervention Policy’, which he drafted. The content of this document sets out the balancing of various peoples’ rights which the Police Operation seeks to respect, and although Article 8 is not referred to in terms, the document recognises that:-

“..The business of Novartis is lawful and the company and its employees, agents and partners have the right to conduct that business free from intimidation, harassment and free from unnecessary and unjustifiable disruption.”

Thus, although a subsequent e-mail from PC Day (on behalf of Superintendent Davies, who by then was unavailable), indicated that Article 8 would not normally be a consideration in their Policing Style as it does not form part of the plan, it is clear from the extract quoted above that, in fact, Article 8 type considerations in relation to the Claimants are clearly taken into account.

It must also be noted that later in the document, the following policy is set out:-

“There is presumption that all offences, however minor, if witnessed by or brought to the attention of a police officer, will be dealt with should the officer be in a position to do so given the circumstances. The way in which this behaviour will be dealt with is at the discretion of the officer involved and can range from verbal warning to arrest, but there should be no tolerance of criminal offending. There will be a presumption of arrest for any offence that has a personal and individual victim.”

Article 8 of the ECHR provides as follows:-

“8(i) Everyone has the right to respect for his private and family life, his home and his correspondence.

(ii)

There shall be no interference by a public authority with exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

As Dyson LJ explained in Connolly v DPP [2007] EWHC 237 (Admin), generally speaking members of the public have the right to be protected from material intended to cause them distress or anxiety whether in the privacy of their own homes or in the workplace. It all depends on the circumstances. The more offensive the material the greater the likelihood that such persons have the right to be protected from receiving it. Much is likely to turn on the position of the recipient.

Section 1(1) and (2), and section 7 of the 1997 Act provide as follows:-

“1.

Prohibition of Harassment

i)

A person must not pursue a course of conduct (a) which amounts to harassment of another; and (b) which he knows or ought to know amounts to harassment of the other.

ii)

For the purposes of this section the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

7.

Interpretation of this group of sections

i)

This section applies for the interpretation of sections 1-5

ii)

Reference to harassing a person includes alarming the person or causing the person distress.

iii)

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

iv)

Conduct includes speech.”

Section 3 of the 1997 Act provides:-

“Civil Remedy

i)

An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question

ii)

On such a claim damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from that harassment

iii)

Where (a) in such proceedings the High Court or a County Court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment; and (b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction the plaintiff may apply for the issue of a warrant for the arrest of the defendant.

iv)

An application under sub-section 3 may be made (a) where the injunction is granted by the High Court to a judge of that court; and (b) where the injunction was granted by a County Court to a judge or District Judge of that or any other County Court”

Article 10 of the ECHR provides that:-

“10(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

(2)

The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 11 of the ECHR provides that:-

“11(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

(2)

No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

Both at common law, and now under the Human Rights Act 1998 and the Convention, freedom of speech or expression, and freedom of assembly and association, constitute rights jealously safeguarded by English law. As Sedley LJ put it in Redmund-Bate v DPP 7 BHRC 375 at pp 382-3:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the Convention has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy…”

As the wider authorities make clear, any restrictions on the rights of freedom of expression, and/or of freedom of assembly and association, must be: (i) convincingly established; (ii) justified by compelling reasons; (iii) subject to careful scrutiny; (iv) proportionate and no more than necessary.

There are, however, cases, as Articles 10 and 11 themselves contemplate, where it is proper to impose restrictions on these fundamental rights. As Sir Thomas Bingham MR (as he then was) put it in Burris v Azahani [1995] 1 WLR 1372 at page 1380:-

“Respect for the freedom of the aggressor should never lead the court to deny necessary protection to the victim.”

Further, as Grigson J observed in The University of Oxford and others v Broughton and Others [2004] EWHC 2543 at paragraph 80:

“The right of freedom of expression is not to be exercised in a vacuum created by the assumption that only the views of the animal rights movement are correct. Those who believe that experimentation on live animals is both morally and scientifically justified also have the right of freedom of expression. Further such people and those who, in the broadest sense, work for them have the right to respect for their private and family life, their homes and correspondence under Article 8.”

There can be little doubt that at least the primary intention of the 1997 Act was to deal with the phenomenon of ‘stalking’. However, as will be clear from what I have already said, there have now been a number of instances where injunctions have been granted under the 1997 Act restraining harassment in ‘animal rights’ and other cases. Whilst there is understandable concern that an Act passed to combat stalking should not be used to clamp down on rights of protest and expression, it is also true that there comes a point when protest and expression may cross the line into harassment. That said, considerable care is required in applying the 1997 Act to situations of public protest. The drawing of lines in this regard involves intensive factual enquiry, and difficult questions of degree. ‘Harassment’ is however not confined to acts which place the victim in fear of violence, or only to conduct which alarms or causes distress, albeit that normally it must be unlikely that conduct which does not amount to that will be restrained by interim injunction. Equally, the fact that individuals or associations now express their objectives in more guarded terms than hitherto cannot confer an immunity from injunction under the Act, if it is established that their conduct or the apprehension of their conduct otherwise warrants it. Section 3(1) of the 1997 Act bites on ‘actual or apprehended’ breach of section 1, and there must, of course, be a proper evidentiary basis for the apprehension.

The relationship between the availability of the criminal law and the use of a civil injunction under the 1997 Act have a part to play in any consideration by the court. However any argument that an injunction should only be granted or amended if, and insofar as, the police were unable to control any protest using the available means of the criminal law, is too simplistic. As Grigson J put it in The University of Oxford case (above) at paragraph 39:

“..This submission is flawed as it confuses the terms of a civil injunction with the ingredients of a criminal offence..The purpose of this injunction is to prevent harassment as defined by the Act taking place. To that end, the restraint is designed to prevent acts which may, if continued, constitute the full offence. It would be pointless otherwise. If the Claimants had to wait for the full offence to be committed, they could rely upon the criminal law, but the criminal law acts retrospectively. A civil injunction is prospective. Necessarily, an injunction is designed to catch acts which are less than the full offence. Consequently, the courts have the power to grant injunctions in wide terms to prevent the harassment of a class of persons, for example, the employees of contractors or sub-contractors, so that they may go about their lawful business.”

That said, a consideration of the available means of the criminal law may provide assistance in shaping the appropriate width of any injunction granted. The statutory powers of the police to control public processions and assemblies were the subject of penetrating analysis by Lord Bingham in Regina (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 at paragraphs 18-26 and 46, which I adopt. In particular, he refers to section 60AA of the Criminal Justice and Public Order Act 1994, as amended, which provides that when an appropriate authorisation is given, a constable in uniform may require any person to remove any item which the constable reasonably believes that that person is wearing wholly or mainly to conceal his identity, and may seize any item which the constable reasonably believes any person intends to wear wholly or mainly for that purpose.

In addition, sections 145 and 146 of the Serious Organised Crime and Police Act 2005 now make it criminal offences to interfere with contractual relationships so as to harm animal research organisation, and to intimidate persons connected with animal research organisation.

As to the relevant test for the amendment of an interim injunction, this must, in principle, be the same as for an interim injunction itself. As the amendments sought have an obvious impact on the right to freedom of expression thereby engaging section 12(3) of the Human Rights Act 1998 and Cream Holdings Ltd v Banerjee [2005] 1 AC 253, an amendment should not be granted unless the court is satisfied that it would probably be granted at trial. The key issue is that of the apprehension of risk of future action, which involves an exercise of judgment and evaluation. As with any prior restraint on freedom of expression, it requires the most careful scrutiny.

As Lord Bingham put it, when considering statutory interference with Article 10 rights in R v Shaylor [2003] I AC 247 at paragraph 23:

“It is plain from the language of Article 10(2) and the European Court has repeatedly held, that any national restriction on freedom of expression can be consistent with Article 10(2) only if it is prescribed by law, is directed towards one or more of the objectives specified in the Article, and is shown by the state concerned to be necessary in a democratic society, ‘Necessary’ has been strongly interpreted: it is not synonymous ‘indispensable’, neither has it the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’: Handyside v United Kingdom (1976) 1 EHRR 737, 754, para 48. One must consider whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authority to justify it are relevant and sufficient under Article 10(2):SundayTimes v United Kingdom (1979) 2 EHRR 245, 277-278, para 62.”

Finally, by section 37(1) of the Supreme Court Act 1981 I may only grant an amendment if satisfied that it is just and convenient to do so.

Mr Lawson-Cruttenden has been unable to find any case in which a Court has ordered the types of limitation that he invites me to order now.

In such a sensitive field as this, that causes me to adopt a cautious approach to his application, albeit that this is very much a fact based exercise. That caution is increased, albeit that Summary Judgment has been granted, because we are still at the interlocutory stage in this case - a stage at which it is generally no part of the Court’s function to try to resolve conflicts of evidence in statements, nor to resolve matters calling for detailed argument and mature consideration.

In my view, the evidence before me establishes that

In performing the necessary balancing exercises, I have also taken into account all the various legal principles to which I have made reference above and the following general matters:-

Against that background, I turn to the amendments sought as follows:-

The remaining suggested amendments are thus irrelevant, and it follows that, as I have indicated above, I allow only the amendment to paragraph 7.9.3, and reject all the remaining proposed amendments. Two things must however be made clear:-