SELVANAYAGAM v. THE UNITED KINGDOM
Inadmissible
Georg Ress;Nicolas Bratza
The applicant, Ms Diane Selvanayagam, is a United Kingdom national, who was born in 1969 and lives in Newcastle-upon-Tyne. She is represented before the Court by Mr K. Kerrigan, a lawyer practising in Newcastle-upon-Tyne. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant has been involved in peaceful protests designed to draw attention to practices carried out at Corneyhaugh Mink Farm in Northumberland. On 10 September 1997 a High Court interim injunction was obtained against the applicant (and others) under section 3 of the Protection from Harassment Act 1997 (“the Act”) by the plaintiffs to a civil claim against her, the Harrison family, who lived at the farm. The injunction was granted without the applicant having notice of the application, in her absence and prior to the issue of civil proceedings. The Order restrained the applicant from pursuing a course of conduct which amounted to harassment of any of the plaintiffs including, in particular, communicating with them or coming onto their farm, the land immediately adjoining their farm or certain parts of a nearby public highway, whether for the purposes of protesting or otherwise. It provided: “(1) This Order prohibits you from doing the acts set out in this Order. You should read it carefully. You are advised to consult your solicitor as soon as possible. You have a right to ask the Court to vary or discharge this Order. (2) If you disobey this Order you may be found guilty of Contempt of Court and you may be sent to prison or fined and if fined your assets may be seized.” It continued further as follows: “VARIATION OR DISCHARGE OF THIS ORDER The Defendant may apply to the Court at any time to vary or discharge this Order but if he wishes to do so he must first inform the Plaintiffs’ Solicitors in writing at least 24 hours beforehand.” Thereafter the applicant states that she, acting in person, served a timely defence and a notice of application to have the injunction varied or discharged on both the High Court and the plaintiffs’ solicitors. She expected that the court would list the matter thereafter. No such listing and/or hearing had taken place prior to the applicant’s arrest for the criminal offence of harassment in March 1998. The applicant states that subsequent enquiries have revealed that the High Court did not have a copy of the application to vary or discharge the injunction on its file and that it appears that the document was lost either in the post or at the High Court office. The magistrate in her criminal proceedings (see below) found as a fact that the applicant had served a timely defence on both the plaintiffs’ solicitors and on the court and had requested the removal of the injunction, but that she was still awaiting a reply and an opportunity to challenge the injunction at the time of her criminal trial. In March 1998 the applicant was arrested and charged (along with two others) with a criminal offence under section 2 of the Act. The information laid alleged as follows: “Diane Selvanayagam, jointly with others between 20th July 1997 and 17th March 1998 at Corneyhaugh Mink Farm, Kirkley Hall, Northumberland pursued a course of conduct which amounted to harassment of Peter John Harrison, contrary to section 2 of the Protection from Harassment Act 1997.” The applicant was tried by a stipendiary magistrate. Evidence was heard for eight days between 29 July and 25 September 1998. On 13 October 1998, the magistrate acquitted the applicant, holding that, while her course of conduct amounted to harassment and she knew or ought to have known that it did so, it was reasonable in the circumstances. Pursuant to section 1(3)(c) of the Act, it was a defence for the defendant to show that in the particular circumstances the pursuit of the course of conduct was reasonable. In considering whether to regard the applicant’s behaviour as reasonable, the magistrate balanced the “highly valued and protected” right to protest against the effect of the protests on the occupants of the farm. He continued: “...there has been in the evidence no suggestion of violence and not more than the smallest hint of possible damage and abusive language. Even in the case of the last two I am far from certain about the value of the evidence. What I have heard and been impressed by is that all of them [the Defendants], and Miss Selvanayagam in particular, have gone out of their way to avoid such behaviour and have indeed counselled others against it. What all this amounts to is that I am satisfied that the purpose of the protest and the way in which these three pursued it was reasonable and I therefore dismiss all the charges against them.” The Director of Public Prosecutions appealed by way of case stated to the Divisional Court of the Queen’s Bench Division. The Divisional Court was required to answer the following question: “Whether as a matter of law the course of conduct pursued by the defendant Selvanayagam could have been deemed to be reasonable having regard to the fact that the course of conduct was in breach of the terms of the High Court injunction served on the defendant Selvanayagam on 10 September 1997.” The Divisional Court answered the above question in the negative (R v. Director of Public Prosecutions, ex parte Moseley and others, 9 June 1999, case no. CO/664/99 [“ex parte Moseley”]). It considered that on the basis that the conduct in question did amount to harassment and was in breach of the injunction, it was not open to the applicant on the facts as found to establish that she had a defence of reasonableness within section 1(3)(c) of the Act. Mr Justice Collins stated that: “...The injunction, if granted, must be obeyed, and unless and until it is set aside, it binds the party in question. It cannot be right for an individual to say to him or herself, that he or she will ignore the terms of the injunction because he or she believes that the conduct in question is reasonable. The course that must be adopted is to apply to set the injunction aside. The judge will then decide whether the conduct is reasonable, or should be prevented. He will carry out the balancing exercise. But, as it seems to me, it is incumbent upon a magistrate, faced with an injunction, to accept that it means that the defendant is unable to discharge the burden placed upon him by the Act of establishing that the conduct was reasonable. For my part, I find it quite impossible to accept that it can be reasonable to pursue a course of conduct in breach of an injunction which is designed to stop such conduct.” In a concurring judgment, Lord Justice Roch stated: “It is, in my opinion, to be presumed that the injunction, although ex parte and interim, has been obtained properly, and it is to be obeyed until it expires, or is set aside or varied by the High Court. A person who is aware that he or she is subject to an injunction, made by the High Court, and who can apply to set it aside or to vary it, cannot be conducting him or herself reasonably if he or she deliberately and without reasonable excuse breaks the terms of the injunction. Miss Selvanayagam was in breach of the injunction in two respects. She was upon the road outside the farm ... and she on occasions trespassed on the Harrisons’ land. The particular circumstances, against which the reasonableness of that course of conduct had to be measured, included the existence of the High Court order. There was no justification put forward by Miss Selvanayagam either before the stipendiary magistrate or before this Court, for her disobeying the order of the High Court ... What is certain, in my judgment, is that conduct which flouts a High Court order cannot be reasonable unless there exists a wholly exceptional excuse for doing so, such as the instance put forward by Mr. Starmer during argument, that it is necessary to go into a prohibited area to rescue someone who is in imminent danger. Any other view could lead to inconsistent conclusions being reached by the magistrates’ court and the High Court; a most undesirable result.” While not necessary for the determination of the point in issue, during the course of his judgment, Mr Justice Collins also referred to the additional defence that the applicant had run under section 1(3)(a) of the Act (that she had pursued her course of conduct for the purpose of preventing or detecting crime) and observed that: “... I find it difficult to see how a protest of this sort, carried on over a lengthy period of time, could be said to have been pursued for the purpose of detecting or preventing crime. It is no crime to run a mink farm and as the magistrate found, there was never any evidence of breaches of any regulations covering the manner in which the minks had to be kept.” The Divisional Court directed the magistrates’ court to proceed in the light of its judgment. The applicant thereafter applied to the Divisional Court for leave to present a petition of appeal to the House of Lords and for certification of the following point of law as one of general public importance: “Whether conduct which is in breach of an injunction imposed in civil proceedings is capable of being reasonable under section 1(3)(c) of the Protection from Harassment Act 1997.” On 19 July 1999, the Divisional Court certified the point of law as being one of general public importance. However, it refused the applicant’s application for leave to present a petition of appeal to the House of Lords. On 6 October 1999, the applicant was granted legal aid to pursue a petition of appeal to the House of Lords. However, she was advised by both leading and junior counsel in conference on 21 October 1999, and in a subsequent written opinion by junior counsel on 5 November 1999, that her appeal had little prospect of success. Indeed, in that written opinion counsel stated that she was “quite certain that the House of Lords would not grant leave”. The applicant was then informed by her solicitors that her legal aid would be discharged, which occurred subsequently. The applicant thereafter instructed a new firm of solicitors on a pro bono basis to seek a further opinion from counsel regarding a potential appeal to the House of Lords. A further experienced barrister advised by telephone on 11 January 2000 that a petition to the House of Lords would be unlikely to be successful. She had, in fact, also previously received advice to the same effect on 10 June 1999 from the barrister who represented her in the Divisional Court. This avenue of appeal was therefore not pursued. On 2 September 1999, as a result of the judgment of the Divisional Court, the applicant was convicted by the stipendiary magistrate. She was sentenced to an absolute discharge and an indefinite restraining order under section 5 of the Act, which read as follows: “1) The Defendant is prohibited from assaulting, molesting, harassing, threatening, pestering or otherwise interfering with Mr. Peter John Harrison, his children or members of his family, Mrs. Alison Harrison, Mrs. Joan Gwendoline Harrison and Thomas Edward Harrison, by doing acts to cause them, their servants, agents, employees or customers harm whether directly or indirectly. 2) The Defendant is prohibited from making any communication to Mr. Peter John Harrison, his family, servants, agents, employees or customers whether in writing or orally, whether by telephone or otherwise. 3) The Defendant is prohibited from entering upon the land of Peter John Harrison at Corneyhaugh Mink Farm, Kirkley Hall, Northumberland, or travelling within half a mile thereof.” On 29 October 1999, the applicant applied to the Crown Court for leave to appeal, out of time, against the magistrate’s decision to convict and sentence her. This application was rejected by the Crown Court on 13 January 2000. On 12 April 2000, the applicant, acting in person, applied to the Divisional Court for permission to seek judicial review of the Crown Court’s decision. Permission was granted on 25 October 2000. At the full hearing on 26 February 2001, the Crown Court’s decision was quashed (R v. Newcastle Crown Court, ex parte Selvanayagam, 26 February 2001, case no. CO/1330/2000). Permission to appeal out of time was granted in relation to the applicant’s submissions concerning the defence which she had raised under section 1(3)(a) of the Act at the magistrates’ court trial, namely that she pursued her course of conduct for the purpose of preventing or detecting crime. She argued that it was her co-defendants who were primarily running the defence of reasonable conduct under section 1(3)(c) and that the magistrate effectively “rolled up” the defences that were being put forward under subsection (3) of section 1, without specifically differentiating between the evidence which was being put forward on behalf of her co-defendants and her own evidence. The Divisional Court held that although the Divisional Court in ex parte Moseley had ruled that her reasonableness defence under section 1(3)(c) of the Act had been determined against her by the existence of the injunction, it was still open to the applicant to argue before the Crown Court that her actions were lawful under section 1(3)(a) of the Act. Lord Justice Latham stated: “...the judge was wrong to conclude that the Divisional Court’s decision in any way precluded the applicant either as a matter of law from seeking to pursue her defence under section 1(3)(a), or in any way, insofar as he sought to do so, concluding that on the merits there was no basis upon which it could properly be said that there was material which could found such a defence. The applicant had put before him arguments which indicated that she had been seeking to obtain evidence or other material which would affect the regulatory or prosecuting authorities based upon her assertion that criminal activity was taking place at the mink farm. She may or may not, at the end of the day, on the facts be able to establish her case, because the burden of proof will be on her; and, in particular, she will have the difficulty, if she is to succeed, of having to establish that the purpose of her activities was for preventing or detecting crime...Those will be issues which are properly issues to be determined on the basis of proper conclusions on the facts after the hearing of evidence. It seems to me that nothing that was decided by the Divisional Court can impinge upon the applicant’s right to have those issues properly so resolved.” ([2001] EWHC ADMIN 152 at paragraph 15) Thereafter, the appeal in the Crown Court was listed for 2 July 2001. However, by letter of 25 June 2001 the applicant informed the Crown Court that she wished to abandon the appeal for medical reasons. Section 1 of the Act creates a general prohibition on harassment as defined in that section, subject to certain exceptions, stating in its material part: “(1) A person must not pursue a course of conduct – (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. ... (3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows – (a) that it was pursued for the purpose of preventing or detecting crime, [or] ... (c) that in the particular circumstances the pursuit of the course of conduct was reasonable.” Non-compliance with section 1 of the Act can give rise to criminal (section 2) and civil (section 3) liability. Section 2 of the Act states in its material part: “(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence.” Section 3 of the Act states in its material part: “(1) 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.” The availability of a civil remedy enables injunctions to be granted during the course of civil proceedings. A civil cause of action must exist before an injunction can be granted. The breach of any injunction can give rise to civil committal proceedings. At any such proceedings the court has the power to commit a person who is found to be in breach of the injunction to prison. Sections 3(3) to 3(9) of the Act make provision for the procedures that can be taken and the sanctions which can be imposed if a civil injunction is breached. Its provisions, while drafted at the time of the commencement of the Act on 16 June 1997, only took effect as from 1 September 1998. These provisions were therefore not in force at the time that the applicant was charged under section 2 of the Act. The provisions read, in relevant part: “(3) Where – (a) in [civil] 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. ... (5) The judge or district judge to whom an application under subsection (3) is made may only issue a warrant if - (a) the application is substantiated on oath, and (b) the judge or district judge has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction. (6) Where – (a) the High Court or a county court grants an injunction for the purpose mentioned in subsection (3)(a), and (b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction, he is guilty of an offence.” Section 5 of the Act enables a court sentencing a person who commits a criminal offence under section 2 to impose a restraining order upon that person. This is an order prohibiting the defendant from doing anything which is set out in the order. By virtue of section 5(4), the prosecutor, the defendant or any other person mentioned in the order may apply to the court which made it for it to be varied or discharged by a further order. Section 5(5) states: “If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.” By section 5(6), a person guilty of an offence under section 5(5) can be sentenced on conviction on indictment to imprisonment for a term of up to five years, or a fine, or both, or, on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both. The Divisional Court in this case, ex parte Moseley, held, as set out in the above facts, that the course of conduct pursued by the applicant could not be deemed to be reasonable having regard to the fact that it was in breach of the terms of a High Court order.