Novartis Pharmaceuticals UK Ltd & Ors v Stop Huntingdon Animal Cruelty ('SHAC') & Ors

A civil injunction under the Protection from Harassment Act 1997 is prospective. It may restrain conduct falling short of the completed criminal offence where there is a proper evidentiary basis for an actual or apprehended breach. The availability of police powers does not, by itself, make a civil injunction inappropriate.

In public-protest cases, harassment is a fact-sensitive question of degree. Restrictions on Articles 10 and 11 rights require compelling justification, careful scrutiny and proportionality. An application to amend an interim injunction must satisfy the same substantive test as an application for an interim injunction and, where freedom of expression is engaged, the court must be satisfied that the restriction would probably be granted at trial.

The claimants sought, under CPR 3.1(7), CPR Part 25 and section 3 of the Protection from Harassment Act 1997, to amend an interim injunction regulating protest activity directed at the claimants and their employees. Summary judgment for final injunctive relief had already been ordered by consent, but the final terms remained to be determined.

The application concerned a forthcoming annual assembly and sought restrictions on masks, blood-splattered clothing, banners and clothing bearing allegations against the claimants, together with a prohibition on fireworks or pyrotechnics. The central issues were whether the proposed restrictions were justified by the evidence of past harassment and unlawful activity, and whether they proportionately balanced the protestors’ Articles 10 and 11 rights against the employees’ Article 8 rights.

1. Application partly allowed. The court allowed the minor amendment to paragraph 7.9.3 of the injunction and rejected all the other proposed amendments.
2. Harassment under the Protection from Harassment Act 1997 is not confined to conduct placing a victim in fear of violence, or to conduct which alarms or causes distress. Applying the statutory concepts of a course of conduct, knowledge and harassment, the court stressed that public-protest cases require careful factual assessment and difficult questions of degree. Section 3 applies to an actual or apprehended breach, but the apprehension must have a proper evidentiary basis.
3. A civil injunction and the criminal law perform different functions. The criminal law acts retrospectively, whereas an injunction is prospective and may prevent conduct which, if continued, would amount to the full offence. The court may therefore restrain conduct short of the completed offence and may protect a class of persons. The existence of police powers is relevant to the width of the order, but an argument that an injunction should be granted or amended only where the police cannot control the protest was too simplistic.
4. The test for amending an interim injunction is, in principle, the same as for granting one. Because the proposed restrictions engaged freedom of expression and section 12(3) of the Human Rights Act 1998, the court had to be satisfied that the restrictions would probably be granted at trial. The assessment required careful scrutiny of the apprehended future conduct and proportionality.
5. In the balancing exercise, the court considered the evidence of past unlawful activity and harassment, the essentially peaceful nature of the previous assembly, the available police powers and policy, the claimants’ Article 8 interests, the limited time before the event, practical enforceability and the risk that last-minute restrictions would increase tensions. A prohibition on blood-splattered clothing, masks, banners or clothing bearing the impugned allegations was disproportionate or impractical at the interlocutory stage. The fireworks amendment was unnecessary because existing police powers already provided effective protection.
6. The refusal of the principal amendments did not authorise harassment, criminal conduct or breach of the continuing injunction, and did not predict the terms of the final order, which required fuller evidence and more mature consideration.