from Harassment Act 1997 and Trade Union immunity.
Written by Dr Peter Jepson
Published in Federation News - Spring 1998.
Writing in 1986(e1), Lord Wedderburn referred
to harassment in a picketing situation as being a 'vague tort' hitherto unknown.
He argued that it can be traced to a direct line of descent from 'molestation'
and 'coercion' as defined under s.3 of the Combination Laws Repeal Amendment Act
1825. Certainly 'harassment', as Wedderburn observes, has been associated with
public order situations - first formerly raising its head in the White Paper on
Public Order Crimes of 1985(e2).
In many ways 'harassment' is one of the vogue
words of the 1990's. With sexual and racial harassment just two examples that
have media hype and often appear in employment law cases. However, harassment is
also beginning to appear in 'unfair' dismissal cases. In one case, registered
with the Industrial Tribunals, a local authority employer is claiming that the
sending of an average of one letter per week by an employee to her managers
(instead of using personal contact over the telephone etc) amounts to harassment
and therefore misconduct. In a sense, this is the problem of harassment - it is
difficult to define. If sending non-threatening business letters to a manager
may amount to harassment - then so could picketing at a workplace - especially
if it is a regular occurrence(e3).
Not only is harassment difficult to define, the
required solutions may also vary. In a public order situation, or one involving
possible threatening behaviour, the use of the criminal law may be appropriate.
In another situation, especially where love or compassion motivates a stalker,
the solution may require a civil injunction. To this end, the law dealing with
harassment needs to be flexible and able to be adapt to different situations.
This has, indeed, been the government's approach to harassment. This essay seeks
to examine the application of the Protection from Harassment Act 1997. I do this
by considering its use in general law and public order situations - going on to
argue that the legislation could be applied in relation to picketing. With this
in mind, I make a case for trade union exemption from the tort of harassment for
acts done in furtherance or contemplation of a trade dispute.
The Protection from Harassment Act 1997 is
potentially quite a radical piece of legislation - with some of its measures
likely to be of considerable value in dealing with what is often described as
stalking, sexual or racial harassment. The Act provides for both a civil and
criminal remedy in relation to conduct that amounts to harassment. The only
definition of harassment within the Act is that it is conduct that includes
speech and must have occurred on at least two occasions.
Lawson-Cruttenden and Addison(e4) argue, on the
basis of the case of Burris v Azadani(e5), that 'legitimate interests' is
the key to the statutory tort of harassment. They correctly cite Sir Thomas
Bingham MR conclusion that the courts should balance the respective interests of
the relevant parties. For example, by initially granting an ex parte
interlocutory injunction to restrain the harassment and molestation of a
divorcee (and her two children) the district judge was putting the interests of
the plaintiff before those of the defendant. He did this by, inter alia,
imposing a 250-yard exclusion zone around the home of the plaintiff. The courts
enforced this in very clear terms with, ultimately, Azadani being sentenced to a
term of imprisonment for breaching the order. Indeed, one of the elements of
harassment in Azadani was the defendant's conduct of riding a bicycle past the
home of the plaintiff - in breach of an exclusion order(e6). This clearly
highlights a conflict of interest. One is the freedom of Azadani to ride a
bicycle down a road - the other is the right of Mrs Burris not to feel harassed
by his conduct. Indeed, Sir Thomas Bingham MR, in Azadani at the Court of
Appeal, made clear that:
"His [the defendants] liberty must be
respected up to the point at which his conduct infringes, or threatens to
infringe, the rights of the plaintiff".
However, in arguing for a 'legitimate
interests' balance Lawson-Cruttenden and Addison are in danger of adding to the
confusion that derives from a quixotic combination of civil and criminal laws
under the Harassment Act. To illustrate further, Lawson-Cruttenden and Addison
refer(e7) to someone sending roses every day to a persons place of work -
indicating that as a gesture of love it is not threatening, abusive or
insulting, but it could still cause harassment, alarm or distress. What is not
clear is whether this sending of roses would amount to civil and/or criminal
harassment. There may well be no clear answer to this question - with Lodge v
DPP(e8) determining that criminal harassment is to be determined by the
magistrates' on the basis of the facts, only to be interfered with by the High
Court if the decision is totally perverse.
The Protection from Harassment Act 1997
notably fails to distinguish, in terms of proof requirement, between civil and
criminal laws. For example, Sections 1 and 2 lay down the criminal elements of
the Act with a guilty person facing up to six months imprisonment - this clearly
would need to be proven beyond reasonable doubt. However, section 3 provides for
a civil remedy where clearly the balance will be of probability. What is
especially worrying about the Protection from Harassment Act 1997 is that
under s3(3) it is proposed that an injunction can be obtained - on the balance
of probability - for an incident that amounts to harassment. This clearly would
be established along the 'legitimate interests' principles laid down in Azadani.
Should the 'defendant', without reasonable excuse, do anything that is
prohibited by the injunction the plaintiff may apply for the issue of a warrant
for the arrest of the defendant. Ultimately, if guilt is established beyond
reasonable doubt, the defendant could face a term of imprisonment of up to five
On the 9th July 1997 Moses J granted
a civil injunction under this Act. The case involved animal rights protestors
and Hill Grove Family Farm Limited. It seems that the animal rights people were
concerned about the treatment of living animals on the farm. They had been
organising protests, pickets etc, and even using the Internet to co-ordinate
their campaign and urge supporters to protest.
The proprietors of the farm applied to the
court to limit the protest. However, in doing so they named 3 defendants and 8
animal rights organisations - including The British Anti-Vivisection
Association. What is more, the injunction was granted ex parte without the
defendants being able to argue their case. The order restrained the defendants
from assaulting, molesting, harassing, threatening, pestering or otherwise
interfering with the plaintiffs ... either directly or indirectly. It also
prevented them from communicating with the plaintiffs in writing or orally
except via a solicitor. The order also prohibited trespassing on land, including
public footpaths, and from coming or remaining on the public roads specified on
an attached map. What is more the order prevented the defendants from "advertising
any demonstrations or protesting activities aimed at Hill Grove Farm ... and
from conducting any such demonstrations or protesting activities whether within
the land referred to ... or at all". Further, any person who is acting
in concert with any of the organisations, or who is holding himself out to be an
animal rights protestor, shall be bound by the terms of the order.
The order also gave liberty to the plaintiffs
to serve a copy of the order by publication on the Internet, with good service
on either the first, second or third defendant constituting good service against
the 8 organisations?
In effect, this means that a national
organisation like the British Anti-Vivisection Association can readily be bound
by an injunction, obtained in chambers, served upon just one UK citizen (who
may, or may not, be a member of their organisation). What is more should
individuals associated with that national organisation protest at all -
presumably anywhere - it is feasible that (under s3(3)) of the Protection
from Harassment Act 1997) the plaintiffs could apply to the courts for a
warrant for the arrest of a 'liable' defendant. Should the case be proven - i.e.
of without reasonable excuse doing anything prohibited by the injunction - the
defendant could face up to five years imprisonment.
Clearly a potential problem may lie in
determining who is a defendant. Obviously the three-named individuals are
defendants - so are the eight organisations. But you cannot send to jail an
organisation - so who in the organisation are the defendants? The order does
specify that those who hold themselves out to be animal rights activists shall
be bound by the terms of the order. Presumably they are not defendants - as such
they may have a reasonable argument that they should not face imprisonment for
disobeying the order.
The case of London Borough of Merton v
Edmonds & Tyndall(e10) may be of guidance here. In this case
Tyndall (Leader of the British National Party) and Edmonds (South London
Regional Organiser) were found guilty, in the magistrates court, of displaying a
poster on Vestey Hall the home of the Merton Ethnic Minority Centre. Tyndall and
Edmonds failed in a defence that they had no knowledge and had not consented to
the advertisement poster. They failed because Merton Council had provided them
with the knowledge that the poster was displayed. If, after being given this
knowledge, they do nothing to remove the poster then it continues to be
displayed with their consent - with the case decided on the facts.
If we apply these principles to the British
Anti-Vivisection Association it would seem that the organisation's officers
could well become defendants. It also follows that any action authorised by the
Association could result in members of the Management Committee being personally
liable for any breach of an injunction. Should they do anything that is
prohibited by the order - without reasonable excuse - the plaintiffs could apply
for a warrant for their arrest(e11). Logically a reasonable excuse would be that
they as individuals had no knowledge of the order by virtue of it having been
served on only one other UK citizen. However, should the facts establish
otherwise - i.e. beyond reasonable doubt - they could face a term of
The Protection from Harassment Act 1997
is new legislation and its use has not yet been fully explored. However, it is
submitted that not only may it be applied to situations involving animal rights
protestors and militant racists, but also trade unionists and picketing. For an
illustration of the judicial approach to harassment in a trade union and
picketing situation we can consider that of Justice Scott in the case of Thomas
v NUM(e12). This case concerned some 50-70 striking miners attending daily
at colliery gates to offer support to picketing. Justice Scott considered that
the striking miners had 'no right, whether by picketing, demonstrating or
otherwise to unreasonably harass the working miners going to or leaving their
place of work'. Despite these observations, probably due to the lack of an
existing precedent, Justice Scott declined to provide a final view on the tort
However, such a lack of precedent in industrial
dispute case law should not be taken to mean that the courts would not be
prepared to reach such a conclusion. Given the recent development of the tort of
harassment it seems only a matter of time before the issue raises its head in an
important industrial dispute. Should harassment be established from the
facts of a particular industrial dispute - it seems probable that trade union
exemptions from certain tort actions, under s.219 of the Trade Union and
Labour Relation (Consolidation) Act 1992, would not apply to the statutory
tort of harassment. This conclusion is logically correct because the tort of
harassment is a recently developed tort(e13) that only came into full
recognition following the 1995 case of Azadani. The courts have not, as yet, had
the opportunity of dealing with this tort in any s.219 situation - but on policy
grounds it would require a brave Judge to grant Trade Union immunity for
harassment. Should this prove to be the case it would open up tremendous
political problems with the possibility, following the granting of an injunction
for picketing that amounts to harassment, of Trade Union leaders being sent to
prison because the Union has acted at variance with an injunction arising out of
a trade dispute.
Not only may this create martyrs out of Trade
Union leaders - it could escalate industrial conflict between trade unions and
the government. It seems logical that the government should act now - before
such conflict develops. They could do this by making Trade Unions exempt from
civil action for harassment under the 1997 Act. This can be justified because it
can be seen to be consistent with the long-standing immunity for acts done in
contemplation or furtherance of a trades dispute first granted in the Trade
Disputes Act 1906. Such action would not provide immunity in relation to any
criminal acts of harassment and neither should it. What is more, this immunity
can be justified on two additional grounds. The first being that the Protection
from Harassment Act 1997 was designed to deal with 'stalkers' and not trade
unions involved in a legitimate trade dispute. A second additional justification
comes from a desire to provide for the right to freedom of expression. This
being entirely consistent with the governments implied support for 'freedom of
expression' under Article 10 of the European Convention of Human Rights.
(1) The Worker and the Law - Penguin Books -
third edition 1986 - pages 547-551.
(2) Review of Public Order Law (Cmnd
9510,1985) Chap 5.
(3) Whereas a single serious act may
constitute sexual harassment before an Industrial Tribunal.
(4) Blackstone's Guide to the Protection from
Harassment Act 1997.
(5)  4 All ER 802 CA.
(6) The defendant was sent to prison for four
weeks - two weeks for each occasion of cycling within the exclusion zone.
(7) Page 14 of Blackstone's Guide.
(8) The Times 26th October 1988.
(9) S.3(9) Protection from Harassment Act 1997
provides for up to 6 months imprisonment and or a fine on summary conviction.
With up to 5 years or fine on conviction on indictment.
(10) The case involved four court
(Magistrates, Crown and Appeal Court) hearings. Finally resolved in case
CP/1722/92 Divisional Court 28th June 93.
(11) On the basis of the terms of the
injunction this would apply even if they were 200 miles away from the Farm.
(12)  IRLR 136.
(13) To illustrate that the tort of harassment
is a new tort, I refer to the comments of Sir Peter Gibson, in Khorasandjian v
Bush  3 All ER p683 CA, where he stated 'there is no tort of harassment'.
See also Lawson-Cruttendon and Addison - Blackstone's Guide to the Protection
from Harassment Act 1997 - at page 3 for an elaboration on this point.