Hewson v Commissioner of Police of the Metropolis

A Prevention of Harassment Letter is a warning, not a finding that harassment has occurred or a formal caution. Its issue engages Article 8, including reputation where the dispute has a public dimension, and may also interfere with Article 10. The interference pursues the legitimate aim of preventing crime or disorder, but must be proportionate in the circumstances. Proportionality includes consideration of the process followed, the terms and nature of the letter, and the allegation’s circumstances. Fairness does not ordinarily require the police to interview the proposed recipient before issuing the letter, although an interview may be good practice. A contemplated investigative interview does not create a legitimate expectation that it will occur before a warning is issued.

The claimant, a barrister and writer, sought judicial review of a Prevention of Harassment Letter issued by the defendant police force after complaints about her social-media communications with another barrister. She argued that the letter unlawfully interfered with her rights under Articles 8 and 10, was procedurally unfair and disproportionate, breached a legitimate expectation that she would be interviewed, and was irrational.

The police had initially contemplated a voluntary interview, but issued the letter after further communications were reported. The central issues were whether an interview was required before issuing the letter, whether the interference with Convention rights was proportionate, and whether any procedural promise had been made.

1. Nature and effect of the letter. The Prevention of Harassment Letter was not authorised by statute, but reflected the ingredients of harassment under the Protection from Harassment Act 1997. It was a warning intended to prevent repetition and to inform the recipient that conduct apparently regarded as reasonable might be causing harassment. It was not a formal determination, caution, charge or finding that harassment had occurred.
2. Article 8. Issuing the letter, together with collecting and retaining related police information, interfered with Article 8 rights. The claimant’s reputation was relevant because the dispute and social-media communications had a public dimension. The interference pursued the legitimate aim of preventing crime or disorder.
3. Proportionality. The assessment was fact-sensitive. Relevant matters included the process leading to the letter, its nature and terms, and the circumstances of the allegation. Fairness and proportionality did not require an interview in every case. It might be good practice to seek the recipient’s comments, but the absence of an interview did not itself make the issue unlawful. Here, the claimant knew that police were investigating the complaint, yet further communications continued. Issuing the warning without awaiting further investigation was proportionate.
4. Article 10 and common law. Article 10 was qualified and did not protect harassment. The same proportionality reasoning applied. The common law did not require a prior interview. No promise had been made that an interview would precede any Prevention of Harassment Letter, so there was no legitimate expectation. The decision was not irrational.
5. The claim for judicial review was dismissed.