Edo Technology Ltd ("Edo") & Anor v Campaign To Smash Edo & Ors

Under section 1(3)(a) of the Protection from Harassment Act 1997, the relevant purpose is subjective, not objectively reasonable. The intended crime must nevertheless be specific, with an identifiable victim and danger, and immediate or imminent. Long-term campaigning to influence conduct falls outside the defence. Section 1(3)(c) is different: reasonableness is judged objectively by the tribunal. The court must balance freedom of expression, including legitimate protest, against the rights of those affected. Alternative methods are not a further requirement under section 1(3)(a), although they may be a factor under section 1(3)(c).

The claimants sought injunctive relief under the Protection from Harassment Act 1997 against a protest campaign directed at an arms manufacturer and its employees. The company participated only as a claimant without seeking relief in its own right. An interim injunction had been granted and a ten-day trial was imminent.

Five preliminary questions concerned justiciability, alleged offences under the International Criminal Court Act 2001, the connection between the defendants’ conduct and alleged crime prevention, and the scope of sections 1(3)(a) and 1(3)(c). The central issues were whether the crime-prevention defence was subjective or objective, whether the crime had to be specific and imminent, and how reasonableness interacted with protest and freedom of expression.

1. Preliminary outcome. The pleaded facts did not enable the defendants to rely on the third head of defence under section 1(3)(a) of the Protection from Harassment Act 1997. The first and second heads of defence remained for trial. Preliminary issues (b) and (c), concerning sections 51 and 52 of the International Criminal Court Act 2001, therefore did not arise for determination.
2. Section 1(3)(c). The defence requires a fully objective assessment of whether the conduct was reasonable. The court must balance freedom of expression, including legitimate protest, against the rights of persons affected. R v Colohan [2001] EWCA (Crim) 1251 supported the objective approach. Percy v Director of Public Prosecutions [2001] EWHC Admin 1125 supplied a relevant proportionality analysis. Conduct which goes beyond legitimate protest and creates a disproportionate interference with freedom of expression cannot be treated as unlawful harassment without addressing that balance.
3. Section 1(3)(a). The purpose of preventing crime is judged subjectively. The provision is an alternative to section 1(3)(c), so it does not impose an additional objective reasonableness test. No actual offence need be committed, and the intended offence need not be committed by the person subjected to the conduct, provided there is a sufficiently established connection between the conduct and the crime said to be prevented.
4. Limits of crime prevention. The intended crime must be specific, in that a particular victim or victims and a particular danger can be identified, and it must be immediate or imminent. Long-term prevention through campaigning is insufficient. No separate requirement to prove the absence of alternative methods is imposed by section 1(3)(a), although alternative methods may be relevant to section 1(3)(c).
5. Other issues. Following R v Jones [2004] 3 WLR 1362, there was no crime of aggression in domestic law for the purposes of section 1(3)(a). The general royal-prerogative question consequently did not arise. The court made no findings on the facts, or on the reasonableness of any defendant’s conduct. Consequential orders were left for the parties to consider.