Martin Hibbert & Anor v Richard D Hall

A course of conduct may amount to harassment even where it consists substantially of journalistic publication on a matter of public interest. The court must assess the conduct as a whole and objectively, applying the statutory threshold of oppressive and unacceptable conduct of sufficient gravity to sustain criminal liability. Freedom of expression is highly significant, but does not protect a negligent or reckless abuse of media freedom, particularly where vulnerable individuals are targeted, surveilled or subjected to repeated unfounded allegations. The defendant bears the burden of establishing a statutory defence, including that the conduct was reasonable or pursued predominantly to prevent or detect crime. Truth is not itself a defence to harassment, although the truth or falsity of allegations may materially affect the Convention-rights balance and reasonableness assessment.

The claimants, Martin Hibbert and his severely brain-injured daughter Eve, sued an investigative journalist over repeated publications alleging that the Manchester Arena attack was fabricated, that victims were crisis actors, and that the claimants had not been injured in the attack. The conduct also included locating Eve’s home, speaking to neighbours and covertly recording footage of her leaving the property.

The claimants relied principally on the statutory tort of harassment under the Protection from Harassment Act 1997, and also pleaded breaches of data-protection legislation. The central issues were whether the defendant had pursued a course of conduct amounting to harassment, whether he knew or ought to have known that it did so, whether either statutory defence applied, and whether the data-protection claim was adequately pleaded.

1. Harassment. The claimants established a course of conduct under the Protection from Harassment Act 1997. The publications addressed a common theme, were issued persistently over time, and the 2019 visit was integral because it was undertaken to obtain material for later publications.
2. The course of conduct was objectively oppressive and unacceptable. The court assessed it as a whole, taking account of the claimants’ vulnerability, the repeated allegations that they were dishonest, the intrusive investigation of Eve, the covert filming and the continuing publication of the allegations. The conduct crossed the criminal-liability threshold.
3. Articles 8 and 10 were engaged. Article 9 was not engaged because the defendant’s position was an opinion based on available information rather than a protected philosophical belief. The court applied the intense-focus and proportionality approach in Re S (A Child) and Bank Mellat. Journalism, including citizen journalism, receives substantial protection, but the defendant’s conduct was a negligent and reckless abuse of media freedom.
4. The defendant ought to have known that his conduct would alarm and distress the claimants. A reasonable person with the same information would have appreciated the consequences of tracking down and filming a vulnerable young person and repeatedly discrediting victims of a traumatic event.
5. The crime-prevention defence failed. The defendant did not show that preventing or detecting offences under s.35 of the Inquiries Act 2005 was the dominant purpose of the course of conduct. The reasonable-course-of-conduct defence also failed. The publications were false, gravely defamatory, unbalanced and based on no sensible critical analysis, while the home visit and covert filming were wholly unreasonable.
6. The harassment claim therefore succeeded. The claimants proved anxiety and distress caused by the defendant’s conduct.
7. Data protection. The court accepted that names, images, medical information and opinions about the claimants could constitute personal data, and that the defendant could be a controller. However, the pleaded data-protection case did not specify the particular data or processing relied upon with sufficient clarity under CPR 16.4(1)(a) and Practice Direction 53B. The court deferred final determination and invited further submissions on pleading and remedies.

The judgment records earlier first-instance and permission decisions in the same proceedings:

• High Court, Master Davison — summary judgment for the claimants on four factual issues: the attack occurred, the claimants were present, they were severely injured, and their injuries were caused by the explosion: [2024] EWHC 227 (KB).
• High Court, Mrs Justice Steyn — permission to appeal Master Davison’s order refused on 15 April 2024.
• High Court, Julian Knowles J — renewed permission application refused: [2024] EWHC 1665 (KB).