Waxman, R (on the application of) v Crown Prosecution Service

The right of access to the courts is fundamental but not absolute. A restraining order may validly restrict the commencement and service of proceedings where proceedings are brought in bad faith for the purpose of harassment, vexation, anxiety or annoyance. It need not prohibit all proceedings merely because it prohibits none. The court must distinguish a bona fide claim, even if weak, from proceedings brought for an improper purpose. Restrictions on Convention rights are lawful where they pursue the protection of others and are proportionate. Article 8 may also require the state to take effective measures to protect a vulnerable person’s psychological integrity from persistent harassment. That positive obligation may be breached by failure to pursue a viable prosecution, even without a complete breakdown in the administration of justice.

The claimant sought judicial review of the Crown Prosecution Service’s decision not to pursue two charges alleging that Mr Fogel had breached a restraining order made under the Protection from Harassment Act 1997. The charges concerned the issue and service of civil proceedings against the claimant and the retrieval and storage of material used to support those proceedings.

The CPS considered that the order could not restrict access to the civil courts and that material referring to Mr Fogel as well as the claimant could not fall within the prohibition. The claimant contended that the decision was based on an incorrect construction of the order and breached the state’s positive obligation under Article 8 of the ECHR. The central issues were whether the order could encompass abusive proceedings and related information, and whether the CPS’s failure to proceed unlawfully interfered with the claimant’s rights.

1. The claim succeeded. The CPS had wrongly concluded that the prosecution was bound to fail. The court granted declaratory relief and awarded the claimant £3,500 damages under section 8 of the Human Rights Act 1998.
2. Access to the courts comprises distinct rights: the right to issue proceedings and the right to have their merits judicially considered and determined. The latter has long been subject to summary control of abuse of process. Civil restraint orders under CPR 3.11 and section 42 of the Senior Courts Act 1981 are compatible with common-law and Convention rights. The same principle permits a suitably worded restraining order under the Protection from Harassment Act 1997 to restrict abusive litigation.
3. The order was wide enough to cover proceedings served on the claimant. It should not be construed as prohibiting all proceedings or none. Bona fide proceedings, even if weak, may be permissible. Proceedings brought wholly without merit and for the sole or primary purpose of causing vexation, anxiety or annoyance may constitute harassment and breach the order. Whether harassment was established would remain a question for the tribunal of fact.
4. Article 6 does not confer an absolute right of access to the courts. Preventing persistent harassment is a legitimate social objective capable of justifying a proportionate restriction. The possible availability of an application to vary an absolute order would also tend to prevent disproportionate interference, although that issue did not require decision.
5. The prohibition on retrieving and storing information relating to the claimant and her family was not implicitly displaced merely because the information also referred to Mr Fogel. In the circumstances, the restriction was reasonable and necessary to protect the claimant and proportionate under Articles 8 and 10.
6. Article 8 imposed a positive obligation to take proper measures to protect the claimant’s psychological integrity from further harassment. Following the approach in Hajduova v Slovakia, breach did not require the complete failure of state protection found in Jankovic v Croatia and A v Croatia. The CPS’s failure to pursue the prosecution breached that obligation.

First-instance judicial review decision. No earlier judicial decision in the same proceedings is stated in the judgment.