Howlett v Holding

Harassment may include conduct that engages freedom of expression where the conduct is unreasonable and oppressive and causes a continuing impact on another person’s privacy or psychological well-being. Articles 8 and 10 require an intense and fact-sensitive balancing exercise; neither right has automatic precedence. Surveillance may form part of a course of conduct even where the victim is unaware of each individual act, if the continuing knowledge or likelihood of surveillance causes anxiety or distress. The statutory defences in section 1(3) of the Protection from Harassment Act 1997 must be construed consistently with necessity and proportionality. A private citizen cannot rely on the crime-prevention defence merely because surveillance might reveal unlawful conduct. The reasonableness defence requires careful scrutiny and an objective rational basis.

The claimant sought protection under the Protection from Harassment Act 1997 against a continuing campaign by the defendant. The campaign included abusive banners flown over the claimant’s area, leafleting, and surveillance. The defendant argued that an injunction would infringe his Article 10 right to freedom of expression and relied on the statutory defences concerning crime prevention and reasonable conduct. He also contended that the complaint was properly one in libel and that surveillance could be justified by the possibility of future litigation. The central issues were whether the conduct amounted to harassment, whether the statutory defences applied, and how the competing Convention rights should be balanced.

1. Injunction granted. The defendant’s aerial harassment and surveillance were part of a persistent course of conduct which caused anxiety, distress and apprehension. The conduct was restrained under the Protection from Harassment Act 1997.
2. Articles 8 and 10 were both engaged. Following Re S (FC) (A Child) [2005] 1 AC 593, neither right had automatic precedence. The court had to conduct an intense, fact-sensitive balancing exercise and give close attention to proportionality. The claimant’s privacy and psychological integrity outweighed the limited value of continuing the defendant’s chosen methods of communication.
3. The claim was not converted into a libel claim. The principles in Bonnard v Perryman [1891] 2 Ch 269 and Crest Homes v Ascott [1980] FSR 396 concerned restraint of publication in libel proceedings, whereas this was a harassment claim under CPR Part 8. The defendant’s conduct could therefore be restrained notwithstanding his asserted wish to communicate allegations.
4. Surveillance could constitute harassment even where the claimant did not know of each individual act. Section 7(2) stated that harassment included alarming a person or causing distress, but did not exhaustively define harassment. The relevant distress could arise from awareness that surveillance was occurring or might occur at any time. Treating unobserved surveillance as irrelevant would be artificial.
5. The section 1(3)(a) defence did not assist a private citizen who conducted surveillance merely in the hope of exposing wrongdoing. At minimum, an objectively rational basis for the surveillance was required. The court agreed with KD v Chief Constable of Hampshire [2005] EWHC 2550 (QB) that an objective test applied. Section 1(3)(c) likewise required careful scrutiny of reasonableness, construed alongside necessity and proportionality. No rational basis existed here, and the conduct was not reasonable.
6. The surveillance was also materially different from proportionate surveillance undertaken to test evidence in ongoing litigation, as considered in Jones v University of Warwick [2003] 1 WLR 954. The defendant was using surveillance as an instrument of attack rather than to protect a legitimate litigation interest.