‘Injunctivitis’
| Author | Gordon Mills |
| DOI | 10.1177/1461355715582996 |
| Published date | 01 June 2015 |
| Date | 01 June 2015 |
| Subject Matter | Articles |
Article
International Journal of
Police Science & Management
‘Injunctivitis’: A blurring of the policing
2015, Vol. 17(2) 128–133
ª The Author(s) 2015
of protest or a vision of the way ahead?
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DOI: 10.1177/1461355715582996
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Gordon Mills
Retired Police Officer, UK
Abstract
This article considers the current use of injunctions obtained under the ‘Protection from Harassment Act 1997’ in the
21st century and their use by private organizations to control protest, predominantly animal rights and environmental
issues, in the UK. The continuing and evolving use of such injunctions has led some political commentators to
comment that ‘the High Court injunction has become the weapon of choice to slap down protests’ (Lewis P and
Evans R (2009) High court injunctions – the weapon of choice to slap down protests. The Guardian, 27 October).
Supporters of injunctions have claimed that they add clarity to what protestors are allowed to do, or more
importantly not allowed to do, in protest situations. Moreover, the existence and terms of an injunction have the
potential to have a major impact on the policing of protests. There is evidence that Section 3 of the Protection from
Harassment Act 1997 has been instrumental in controlling the excesses of protest and reducing the levels of
intimidation, alarm and distress once witnessed in this country, however, some now stress that its continued broad
application is anti-democratic – that the concept of ‘mixing’ the civil and criminal law is seen by some academics as a
dangerous development in controlling an individual’s freedom of assembly and expression as enshrined within the
European Convention of Human Rights.
Keywords
Animal rights extremism, environmentalism, protest, injunction, intimidation, harassment, fear, policing
Submitted 30 Jan 2015, accepted 14 Mar 2015
Evolvement of this tool and the
defendant, who is the subject of a claim in civil proceed-
restrictions it imposes
ings, from pursuing any unlawful conduct, which amounts
to harassment. Harassment under the Act is defined as
The law
‘alarming’ or ‘distressing’ an individual, but there is not
The Protection from Harassment Act 1997 (‘the 1997 Act’)
a satisfactory definition in law of these terms and their
was originally introduced to tackle the problem of ‘stalk-
meaning is open to broad interpretation.
ing’. It was intended to protect individuals, mainly women,
Section 1(1) of the 1997 Act is a provision that prohibits
close-knit family and social groups from harassment by
harassment, it provides that a person must not pursue a
‘stalkers’. However the range of behaviours that it sought
course of conduct that: (a) amounts to harassment of
to control expanded considerably at the beginning of the
another, and (b) he or she knows or ought to know amounts
21st century and harassment now extends considerably
to harassment of that other person.
beyond stalking. The Home Office has stated that the range
In strengthening the original legislation, the government
of behaviour that is capable of constituting an offence is
later introduced s. 125(2) of the Serious Organised Crime
now potentially very wide (Home Office, 2005). Essen-
tially, this is because the Act provides a civil remedy in
Corresponding author:
respect of harassment. This enables both the High Court
Gordon Mills, Retired Police Officer.
and the County Court to grant an injunction to restrain the
Email: gordon.mills@ntlworld.com
Mills
129
and Police Act 2005 (SOCA) which widened the definition
the plaintiff may apply for the issue of a warrant for the arrest
of harassment to include harassment of two or more people,
of the defendant.
from the same company, for example, with the intention of
persuading them to do or not to do something they are enti-
It can be concluded therefore that the procedure contem-
tled to do or not to do. Notably s. 125 also extended the
plated by Parliament involves three steps. First, an applica-
ability of people to bring harassment injunctions. Origi-
tion for an injunction against a person who is engaging in,
nally, under s. 3 of the 1997 Act, only the victim of the har-
or who it is feared will engage in, harassment. Second, the
assment could bring an action to the court for an injunction.
granting of an injunction – that is an order by the High
This was extended to include someone who the defendant
Court or County Court prohibiting the person from doing
has intended to persuade to do or not to do something. The-
something or requiring the person to do something. Third,
oretically, despite the assurances of the explanatory notes
an application for the issue of a warrant for the arrest of the
accompanying the Act that this was not meant to encom-
person subject to the injunction where the plaintiff consid-
pass ‘lawful lobbying’, it remains a threat that those people
ers that the person has breached the injunction.
wishing to exercise their right to free expression by send-
A warrant of arrest may only be issued under s. 3(3) of
ing, for example, protest letters or emails to their targeted
the 1997 Act if: (a) the application is substantiated on oath,
organizations, are at a risk of being criminalized because
and (b) the judge has reasonable grounds for believing that
there is no adequate definition within the law of what har-
the defendant has done anything which he is prohibited
assment truly means. Are 50 emails as opposed to say 5
from doing by the injunction (Civil Procedure Rules
seen as disproportionate and therefore capable of causing
(1998) 65.14 and s. 3(5) of the 1997 Act). The proceedings
alarm or distress to the receiver? Clearly the content of such
following arrest are governed by the Criminal Procedure
correspondence will further dictate what category they
Rules 1998 65.30. In short, the arrested person must be
would come under.
brought before the judge who will then deal with the matter
The significant provision for the purposes of this article
then and there or at an adjourned hearing. If the judge finds
is s. 3(1) which allows a victim of harassment to seek an
that the injunction has been breached, he may deal with the
interim injunction in the High Court against named defen-
matter by committing the offender to prison for contempt of
dants(s) preventing them from continuing with the haras-
court.
sing conduct.
Significantly, the civil remedy of the 1997 Act is com-
Section 3 of the 1997 Act, which carries the side note
plemented by s. 3(6), which is an ‘offence creating provi-
‘Civil remedy’ provides that an actual or apprehended
sion’ in the following terms:
breach of s. 1(1) may be the subject of a claim in civil pro-
ceedings by the person who is or may be the victim of the
Where
course of conduct in question. On such a claim, damages
a.
the High Court or a county court grant an injunction for
may be awarded for anxiety caused by the harassment and
the purpose mentioned in section 3(3)(a) (viz, to restrain
any financial loss resulting from the harassment (s. 3(2)).
conduct which...
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