Harassment and Interference with Contracts
The right to protest may only be exercised peacefully. If you commit, or threaten to commit, acts of violence, or you put other people in fear of violence then you are likely to be guilty of a range of offences, some of which carry very serious penalties. However, recent legislation has created a number of offences that can be committed by protesters even where they do not engage in, or threaten violence. Liberty is concerned that these laws may have a very restrictive effect on the right to protest and on the right to free expression.
Harassment
The Protection from Harassment Act 1997 (PHA) was introduced initially to deal with ‘stalkers’. However, it has been used extensively against protesters
Section 1 PHA
Under section 1 it is an offence for a person to pursue a course of conduct which harasses, and which the person knows or ought to know amounts to harassment. Harassment is not defined, but includes conduct which causes ‘alarm and distress’. Conduct can include words written or spoken. A course of conduct is defined as conduct on two or more occasions.
A crowd of people protesting against a company or public official is likely to cause ‘alarm and distress’, and if this is done more then once than it will be a course of conduct. However, conduct will not be harassment under section 1 if the person who pursued it shows that in the circumstances the conduct was reasonable. This allows protestors to invoke their Convention rights under article 11 (freedom of assembly) and article 10 (freedom of expression) and argue that the exercise of the right to protest as part of an otherwise lawful demonstration should be considered reasonable, even if it may cause someone alarm or distress.
Section 1A PHA
The Serious Organised Crime and Prevention Act 2005 (SOCPA) introduced section1A PHA. This extends the definition of harassment to include conduct on one occasion only, provided that it involves the harassment of two or more persons and is done with the intention of persuading them to do something that they are entitled not to do or not to do something which they are entitled to do. This means that it is easier now for companies and other organisations to use the PHA to protect themselves from protesters, as a single act of protest that targets one company may involve the harassment of several employees, and so breach this section.
However, the defence of reasonableness also applies in this section, so again you can argue that the exercise of the right to protest is reasonable and therefore not harassment.
Injunctions
In addition to the criminal offence, the PHA allow those who apprehend that they may be victims of harassment to apply to the court for an injunction prohibiting that harassment. An injunction is a civil remedy, but the breach of the injunction is a criminal offence. Companies have been known to apply for very broad injunctions to effectively prevent any sort of protest against them. In that case, the protesters should contest the injunction application in court – the courts should not grant injunctions that disproportionately interfere with your right to protest.
As an example of how you can successfully challenge companies that seek to use the law to silence protesters, in a recent case an arms manufacturer (EDO) sought an injunction against a group of anti-war protesters (SmashEDO), restricting the protests to 2 ½ hours per week, away from the factory gates, with no more than 10 protesters who were not allowed to make any noise. The protesters challenged this, and the court granted a much less restrictive injunction. In the end, even this was removed and the protests continue to this day.
Harassment of a person at home
There are special provisions to protect individual’s from harassment in their own home. Section 42 of the Criminal Justice and Police Act 2001(CJPA) provides that a constable can give direction to a person outside a dwelling who is there for the purposes of ‘making representations’ and whose presence is causing or is likely to cause harassment, alarm or distress. If a person knowingly contravenes such a direction he will be committing a criminal offence.
In addition, SOCPA introduced a new Section 42A to the CJPA, which makes it is an offence to harass a person in his home. There is no requirement that the police have given any prior directions. The offence is committed if:
1. A person is outside or in the vicinity of the ‘dwelling’ of any individual;
2. The person is there for the purpose of representing to anyone that he should not do something he is entitled or required to do, or that he should do something that he is not under any obligation to do;
3. The person intends his presence to amount to harassment or to cause alarm or distress or knows or ought to know that his presence is likely to have these consequences;
4. The person’s presence does amount to harassment or causes alarm or distress or is likely to have these consequences.
Whether a person ‘ought to know’ that his presence is likely to be harassment, cause alarm or distress is an objective test (i.e. would a reasonable person with the same information think that his presence was likely to have this effect?)
Liberty agrees that individuals should be entitled to greater protection from possible harassment when in their homes. However, the new law does give cause for concern in the extent to which it can restrict the right to protest. This is because:
Protection of activities of certain organisations
SOCPA introduced two new offences that are intended to protect certain classes of organisation from the actions of campaigners and protesters. At the moment the classes of organisation that are protected are ‘animal research organisations’, but this can be extended by the Secretary of State.
Interfering with the contractual relationships of an animal research organisation
There are two main components to this offence:
This section makes it an offence for:
1. Person (A), to threaten person (B) with a crime or a tort,
2. The threat was made for the purpose of persuading person (B) not to do something he is entitled to do or to do something he is entitled not to do,
3. Person (A) made the threat because (B) has a connection with an animal research organisation.
These provisions do not apply if the tort is done in contemplation or furtherance of a ‘trade dispute’ as defined in the Trade Union and Labour Relations Consolidation Act 1992, or if the tort is that of inducing a breach of contract. This seems to protect those involved in trade union disputes or those calling for consumer boycotts from being criminalised by these provisions.
However, these provisions do give rise to significant concerns and have the potential to severely restrict the right to protest. This is because:
Harassment
The Protection from Harassment Act 1997 (PHA) was introduced initially to deal with ‘stalkers’. However, it has been used extensively against protesters
Section 1 PHA
Under section 1 it is an offence for a person to pursue a course of conduct which harasses, and which the person knows or ought to know amounts to harassment. Harassment is not defined, but includes conduct which causes ‘alarm and distress’. Conduct can include words written or spoken. A course of conduct is defined as conduct on two or more occasions.
A crowd of people protesting against a company or public official is likely to cause ‘alarm and distress’, and if this is done more then once than it will be a course of conduct. However, conduct will not be harassment under section 1 if the person who pursued it shows that in the circumstances the conduct was reasonable. This allows protestors to invoke their Convention rights under article 11 (freedom of assembly) and article 10 (freedom of expression) and argue that the exercise of the right to protest as part of an otherwise lawful demonstration should be considered reasonable, even if it may cause someone alarm or distress.
Section 1A PHA
The Serious Organised Crime and Prevention Act 2005 (SOCPA) introduced section1A PHA. This extends the definition of harassment to include conduct on one occasion only, provided that it involves the harassment of two or more persons and is done with the intention of persuading them to do something that they are entitled not to do or not to do something which they are entitled to do. This means that it is easier now for companies and other organisations to use the PHA to protect themselves from protesters, as a single act of protest that targets one company may involve the harassment of several employees, and so breach this section.
However, the defence of reasonableness also applies in this section, so again you can argue that the exercise of the right to protest is reasonable and therefore not harassment.
Injunctions
In addition to the criminal offence, the PHA allow those who apprehend that they may be victims of harassment to apply to the court for an injunction prohibiting that harassment. An injunction is a civil remedy, but the breach of the injunction is a criminal offence. Companies have been known to apply for very broad injunctions to effectively prevent any sort of protest against them. In that case, the protesters should contest the injunction application in court – the courts should not grant injunctions that disproportionately interfere with your right to protest.
As an example of how you can successfully challenge companies that seek to use the law to silence protesters, in a recent case an arms manufacturer (EDO) sought an injunction against a group of anti-war protesters (SmashEDO), restricting the protests to 2 ½ hours per week, away from the factory gates, with no more than 10 protesters who were not allowed to make any noise. The protesters challenged this, and the court granted a much less restrictive injunction. In the end, even this was removed and the protests continue to this day.
Harassment of a person at home
There are special provisions to protect individual’s from harassment in their own home. Section 42 of the Criminal Justice and Police Act 2001(CJPA) provides that a constable can give direction to a person outside a dwelling who is there for the purposes of ‘making representations’ and whose presence is causing or is likely to cause harassment, alarm or distress. If a person knowingly contravenes such a direction he will be committing a criminal offence.
In addition, SOCPA introduced a new Section 42A to the CJPA, which makes it is an offence to harass a person in his home. There is no requirement that the police have given any prior directions. The offence is committed if:
1. A person is outside or in the vicinity of the ‘dwelling’ of any individual;
2. The person is there for the purpose of representing to anyone that he should not do something he is entitled or required to do, or that he should do something that he is not under any obligation to do;
3. The person intends his presence to amount to harassment or to cause alarm or distress or knows or ought to know that his presence is likely to have these consequences;
4. The person’s presence does amount to harassment or causes alarm or distress or is likely to have these consequences.
Whether a person ‘ought to know’ that his presence is likely to be harassment, cause alarm or distress is an objective test (i.e. would a reasonable person with the same information think that his presence was likely to have this effect?)
Liberty agrees that individuals should be entitled to greater protection from possible harassment when in their homes. However, the new law does give cause for concern in the extent to which it can restrict the right to protest. This is because:
- Harassment is very loosely defined and the police have said that very mild behaviour (such as six women standing by the road with a banner) was causing harassment,
- • Unlike the offences under the PHA, there is no defence of ‘reasonableness’. This means that if someone is prosecuted under this rule, they will not be able to rely on their Convention rights to argue that it was reasonable for them to exercise their right to assembly in the way that they did.
- • There is no definition of vicinity. In one case, the police claimed that a small assembly standing over 500 metres away from a dwelling, where the residents were not able to see or hear the assembly, was ‘in the vicinity of that dwelling’. In another, the police claimed that an assembly outside the gates of a factory was ‘in the vicinity of a dwelling’ because some employees of that factory lived ‘near the factory’.
Protection of activities of certain organisations
SOCPA introduced two new offences that are intended to protect certain classes of organisation from the actions of campaigners and protesters. At the moment the classes of organisation that are protected are ‘animal research organisations’, but this can be extended by the Secretary of State.
Interfering with the contractual relationships of an animal research organisation
There are two main components to this offence:
- A person must do (or threaten to do ) a ‘relevant act’ causing loss or damage.
- A ‘relevant act’ is either a criminal offence or a tort (a civil wrong such as trespass, defamation or nuisance),
- The act must be carried out with the intention of harming an ‘animal research organisation’.
- To ‘harm’ means to cause such an organisation loss or damage of any kind, or to prevent or hinder it from carrying on any of its activities. There is no definition or monetary threshold applied to the term ‘loss or damage’.
- The act or threat must be intended to cause or be likely to cause the person to fail to perform a contractual obligation, to withdraw from a contract, or to decide not to enter into a contract.
This section makes it an offence for:
1. Person (A), to threaten person (B) with a crime or a tort,
2. The threat was made for the purpose of persuading person (B) not to do something he is entitled to do or to do something he is entitled not to do,
3. Person (A) made the threat because (B) has a connection with an animal research organisation.
These provisions do not apply if the tort is done in contemplation or furtherance of a ‘trade dispute’ as defined in the Trade Union and Labour Relations Consolidation Act 1992, or if the tort is that of inducing a breach of contract. This seems to protect those involved in trade union disputes or those calling for consumer boycotts from being criminalised by these provisions.
However, these provisions do give rise to significant concerns and have the potential to severely restrict the right to protest. This is because:
- They criminalise torts. Torts are normally civil wrongs and what is and is not a tort is much less clearly defined then what is a crime – for instance, it is not easy to assess whether a statement is defamatory or not. This means that it will be much harder for protesters to gauge in advance what conduct will or will not be a criminal offence.
- They single out a particular class of ‘victim’ as deserving special protection, and therefore single out a particular class of protester as deserving particular penalties. This has the effect of politicizing the criminal justice system.
- They allow the Secretary of State to extend the class of protected organisations, and so create new criminal offences, without Parliamentary debate.
