| INJUNCTION — Harassment — Defence — Private individual flying banners and instigating secret surveillance concerning another individual — Balance between freedom of expression and right to physical and psychological integrity — Whether course of conduct amounting to harassment — Whether defence that surveillance pursed to detect crime — Protection from Harassment Act 1997, ss 1(1)(3), 7 — Human Rights Act 1998, Sch1, Pt1, arts 8, 10
Howlett v Holding [2006] EWHC 41 (QB)
QBD: Eady J: 25 January 2006
The exercise by an individual of their right to freedom of expression under art 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the instigation of secret surveillance of another were capable of constituting a course of conduct amounting to harassment. The defence to a claim of harassment in s 1(3) of the Protection from Harassment Act 1997 that the action was pursued for the purpose of preventing or detecting crime, was framed with law enforcement agencies in mind.
Eady J so held when giving reasons for granting the claimant, Jenifer Howlet, an injunction on 14 December 2005, forbidding the defendant, Terry Holding, from flying aircraft with banners referring to Mrs Howlett and from putting Mrs Howlett under any form of surveillance. Mrs Howlett had sought injunctive relief after Mr Holding had pursued a campaign against her to make her life “hell” after she had spoken out in May 2000 in her capacity as councillor on the subject of a planning application pending at that time by Mr Holding’s company. The campaign by Mr Holding involved flying banners from his aircraft referring to Mrs Howlett in abusive and derogatory terms, dropping leaflets from time to time and placing her under secret surveillance in an attempt to prove that she was committing benefit fraud.
EADY J said that the evidence before him disclosed a clear and persistent campaign of harassment of Mrs Howlett within the meaning of ss 1(1) and 7 of the Protection from Harassment Act 1997. Mr Holding asserted his right to freedom of expression under art 10 would be infringed were an injunction to be granted against him. In some circumstances, however, the exercise of one’s right of free speech could fall within the concept of harassment, provided the other necessary ingredients were present: Thomas v New Group Newspapers Ltd [2001] EWCA Civ 1233; The Times, 25 July 2001. Furthermore Mr Holding’s art 10 right did not have automatic precedence over Mrs Howlett’s art 8 right to her physical and psychological integrity: In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593; Von Hannover v Germany (2004) 40 EHRR 1. The anguish that Mrs Howlett had to suffer at Mr Holding’s hands was out of all proportion to the value to be attached to the exercise of his right of free speech by the methods he had chosen. Mrs Howlett was therefore entitled to the protection of an injunction in respect of the flying of banners from the aircraft. As far as secret surveillance was concerned, leaving Mrs Howlett in the situation where she might be placed under surveillance at any time, causing her anxiety and uncertainty, was a course of conduct amounting to harassment under s 1(1) of the 1997 Act. This was so even where the actual act of surveillance might not itself alarm her since it would be secret. This was because the distress was caused by the knowledge that surveillance could take place at any moment. Finally read in the light of art 8 and Hansard the defences to an accusation of harassment in s 1(3) of the 1997 Act existed for the benefit of the law enforcement agencies. Even if a private citizen were entitled to avail himself of them he would have to show that there was, objectively judged, some rational basis for the surveillance. There was no such justification for Mr Holdings actions. An injunction was therefore also granted preventing any further surveillance taking place.
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