(1)Novartis Pharmaceuticals Uk Ltd (2) Andrew Roy Grantham v (1) Stop Huntingdon Aminal Cruelty (SHAC) by its representative Max Gastone (2) Greg Avery (3) Natasha Avery (4) Heather James  EWHC 2716 (QBD)
Sweeney J 30 October 2009
An injunction against animal rights protesters could not be altered to increase the restriction on their protest without a disproportionate interference with the protesters’ rights under Articles 10 and 11 of the Convention.
Click below for summary and comment by Rosalind English or here to read the full judgment
The respondents were animal rights activists whose stated aim was to close down an establishment which conducted clinical testing on live animals. The applicants, who were a pharmaceutical company and its head of security, were secondary targets of the respondents’ campaign. The applicants had been granted an interim injunction which restrained the respondents and other protestors from pursuing a course of conduct which amounted to harassment of protected persons contrary to the Protection from Harassment Act 1997. The injunction went on to identify premises around which it created exclusion zones in which, subject to strictly limited exceptions, demonstrations were prohibited. The exceptions permitted one annual assembly at the applicants’ principal site provided that the appropriate notice was given to the police and that there was strict compliance with any conditions laid down by the police. The annual assembly at the applicants’ principal site was due to take place on October 31, 2009. The applicants, who were on notice of the assembly, sought amendments to the injunction so as to provide, inter alia, that (i) for the avoidance of doubt, no assemblies or processions whatsoever should take place other than those permitted under the injunction provided that the requisite notice had been given to the police and there was strict compliance with police conditions; (ii) at the assembly or procession on October 31, in order to prevent the applicants’ employees from being harassed or caused anxiety, alarm or distress, the protestors had not to wear or carry balaclavas, face coverings, masks or blood spattered clothing or costumes; not to carry or exhibit banners, posters or placards alleging that the applicants’ employees murder, torture, abuse or otherwise unlawfully kill animals. The applicants contended that those amendments were necessary since the respondents, who they alleged had close links with animal rights terrorist groups, were persons without respect for the law who acted not in pursuit of any political or public interest cause, as envisaged by Article 10 of the Convention, but in a concerted quasi-terrorist manner to seek to bring down the applicants and harass their employees further. The respondents did not object to the first minor amendment sought by the applicants confirming the giving of notice to the police and compliance with police conditions. In respect of the further amendments, the applicants submitted that, given that only about 40 of respondents’ employees would be working at the site during the time of the assembly, that the police would be at the assembly in large numbers in order to ensure compliance with the law, including the present terms of the injunction, and that their rights of freedom of expression and freedom of assembly were enshrined in Articles 10 and11 of the Convention, the applicants’ proposed amended terms were not proportional, and the balancing of rights on both sides came down clearly in favour of rejecting the application.
Application granted in part.
Although the public had a general 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, (Connolly v DPP (2007) EWHC 237 (Admin), (2008) 1 WLR 276), both at common law and under the Human Rights Act 1998 and the Convention, freedom of speech or expression, and freedom of assembly and association, also constituted rights jealously safeguarded by English law (Redmond-Bate v DPP (1999) 163 JP 789 QBD). Any restrictions on the rights of freedom of expression or freedom of assembly or both had to be (i) convincingly established; (ii) justified by compelling reasons; (iii) subject to careful scrutiny; (iv) proportionate and no more than necessary. There were, however, cases where it was proper to impose restrictions on those fundamental rights: respect for the freedom of the aggressor should never lead the court to deny necessary protection to the victim (Burris v Azadani (1995) 1 WLR 1372 CA (Civ Div) ). Whilst the applicants’ employees had significant Article 8 rights, it was necessary for the rights of all to be balanced appropriately. In the circumstances, as there was no objection to the minor amendment sought concerning the giving of notice to the police and compliance with police conditions, that amendment would be allowed. However, the balance of convenience was resoundingly against the suggested requirement that protestors had not to wear blood spattered clothing or costumes as it was likely to be practically unenforceable and was, in any event, not proportionate. In respect of the requested prohibition on balaclavas, face coverings and masks, the decision was not so clear cut. Ghoulish masks had the potential to cause anxiety, alarm and distress and could be used to seek to disguise the identity of anyone intent on harassing conduct. The implementation of such a blanket prohibition at such a late stage was, however, likely to cause considerable practical problems for the police, risk the raising of tensions, and interfere with the rights of those who wished to wear inoffensive masks. The balance therefore came down against allowing the amendment in relation to masks also. Further, as no objection had been taken to the respondents’ use of a megaphone or to the shouting of the words sought to be prohibited on banners, and there was no difference of substance between vocal delivery and banners, the proposed amendment in relation to banners had also to be rejected.
COMMENT (November 2009)
The rights to freedom of assembly and free speech, both under the common law and the Convention, are based on the fundamental principle of liberalism that, while any particular choice can be pursued at the individual’s pleasure, it cannot be pursued to the point at which it interferes with or prescribes or proscribes the choices of other individuals. This is another way of formulating John Stuart Mill’s “The Harm Principle” in On Liberty.
It is a truism that the antics of extremists at the outermost fringes of the animal rights movement have offended this principle and have thus dealt a body blow to the animal welfare movement as a whole. The public relations machine is currently geared against any cause that might suggest that human interests should not always prevail against those of non-human species. Cases on animal rights protests reflect this contemporary attitude: see Huntingdon Life Sciences Group Plc v Stop Huntingdon Animal Cruelty (SHAC) (2007) EWHC 522 (QB); Oxford University v Broughton and Others  EWHC 75 (QB); AG’s Reference (NO.113 OF 2007) sub nom R v Deborah Morrison,  EWCA Crim 22. Why else are the courts so inclined to protect institutions like the applicants in this case from harassment by protesters but declined to protect, for example, the Atomic Weapons Establishment at Aldermaston against trespass (Tabernacle v Secretary of State for Defence)  EWCA Civ 23)? The only difference is the reputation of the protesters themselves.
Therefore it is refreshing to see that the odds are not entire stacked against law-abiding and moderate protesters such as SHAC and that the court was prepared to prevent the applicants from effectively shutting down the protest by conceding that the manner of the protest – clothes and masks etc – was essentially harmless.