Katharine Elizabeth Kerner (on her own behalf and in a representative capacity for Jack Robert Michael Kerner, a child) v (1) WX (2) YZ (Persons Unknown responsible for pursuing and/or taking photographs of the Claimant and her son at their home on 22 January 2015)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 06 May 2015 |
| Neutral Citation | [2015] EWHC 1247 (QB) |
| Court | Queen's Bench Division |
| Date | 06 May 2015 |
| Docket Number | Case No: HQ15X00368 |
[2015] EWHC 1247 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: HQ15X00368
Tim Lawson-Cruttenden (instructed by Richard Slade and Associates) for the Claimant
The defendants did not appear and were not represented
Hearing date: 1 May 2015
On 22 January 2015 I granted the claimant's urgent application for an injunction to restrain two men, whose identities were unknown, from harassing the claimant and her 9 year-old son. The acts of harassment of which she complained arose from the conviction and sentence of the claimant's husband for sexual activity with a child by a person in a position of trust. He was a teacher, and the child concerned was a 16-year old student. On 14 January 2015 Mr Kerner received a suspended sentence of imprisonment. His case attracted considerable media attention at the time of conviction and, in particular, sentence. That attention extended to the claimant and the couple's son.
The two men, a photographer and an associate, had been involved in watching the claimant's home and taking photographs on 22 January, in the early morning and afterwards, in a way that I found was likely to be held at a trial to amount to harassment: [2015] EWHC 128 (QB). At that time the claimant's husband was not living at the family home.
The injunction I granted was against those two men, designated as "'WX' and 'YZ' (Persons Unknown responsible for pursuing and/or taking photographs of the Claimant and her son at their home on 22 January 2015)". The claimant and her son were described in the order as the "Protected Persons". The order prohibited the defendants from harassing the Protected Persons, and paragraph 3 contained some specific prohibitions on:
"3.1 photographing or videoing any Protected Person or any vehicle or premises or house belonging to or occupied by any Protected Person;
3.2 Knowingly loitering within the Exclusion Zone;
3.3 Knowingly pursuing a Protected Person"
The Exclusion Zone was defined to mean a 100 metre radius from the family home, in Kent, the address of which is specified in the order. The claimant gave undertakings to the court to use reasonable endeavours to trace the defendants. She had photographed them, and had the registration number of the car driven by one of the defendants.
On 29 January 2015, the return date of the original injunction, the claimant applied for the injunction to be continued until trial or further order. Neither defendant appeared. A second witness statement of the claimant explained that in compliance with her undertakings she had
i) given notice of the injunction to three newspaper groups; but none had responded; and
ii) contacted the DVLA in an attempt to trace the registered keeper of the car, the registration number of which she had taken; but she had not received that information and her evidence was that it could take 4 weeks to obtain it.
The claimant confirmed that she would serve proceedings if and when she identified a defendant.
I was satisfied that the need for the injunction had not expired, and that it should be continued. I therefore made an order that it continue until trial or further order. But it was by no means a certainty that the claimant would be able to identify either of the defendants. I required the claimant to undertake that if, despite the reasonable endeavours which she had undertaken to use, she had been unable to trace the defendants within three months after the date of my Order she would apply to a Judge for directions as to the further conduct of this action. The purpose was to ensure that the court retained control over the action and that the interim order did not by default become permanent: [2015] EWHC 178 (QB).
On 27 April 2015, in compliance with her undertaking, the claimant issued the application for directions which is now before me. In support of the application the claimant has made a third witness statement, dated 28 April. The directions sought are:
"1. An order that the DVLA release to the claimant's solicitors the identity and contact details of the registered keeper of the Ford Galaxy registration number [*REDACTED*] within 28 days of the order;
2. The Injunction dated 29 January 2015 in this matter to continue until trial or further order."
As the injunction of 29 January 2015 was expressed to continue until trial or further order it might be thought that paragraph 2 was unnecessary. However, it is right for the claimant to raise the issue, as her evidence shows that the facts have changed in a material respect, that might lead the court to reconsider. The claimant's husband has returned to live with his wife and son. As a result, he may incidentally benefit from protection which the injunction is designed to give to them. The prohibition in paragraph 3.1 would serve to prevent filming or photography of the husband when in the home, or in premises or a vehicle which is also occupied by his wife or his son. Paragraph 3.2 would protect him incidentally as would paragraph 3.3, if he was with his wife or son when they were being pursued.
I have considered whether it would be right for those incidental protections to be available to the husband, who is the convicted individual, and has not complained of harassment by these defendants or, so far as the court is concerned, anyone else. Any order of this kind must strike a proper balance between the rights of individuals to be protected from harassment which interferes with their right to enjoy a private and family life, and the rights of others, including the news media, to receive and impart information on matters of legitimate public concern.
I conclude that, provided this injunction remains justified in order to protect the claimant and her son, the fact that the husband also incidentally benefits is not a reason to vary or discharge the order. The injunction does not prohibit photography or videoing of the husband, at any time when he is not at home or not in the company of his wife or son. That is not to say, of course, that it would be legitimate to harass the husband. But it may be legitimate to take pictures or video of him, and nobody is asking the court to restrict such activity.
I therefore turn to consider whether the continuation of the existing injunction in favour of the claimant and her son is justified by the evidence. The claimant maintains in her third statement that such protection remains necessary. She was acting head teacher of Wyborne Primary School. Her evidence is that after her husband returned to the family home she informed her employer, and took the necessary steps to ensure that she could continue in her employment, while living with her husband. The point, of course, is his status as a convicted sex offender and thus a person barred from working with children. On 24 February 2015 the claimant obtained an Ofsted waiver allowing her to work at the school in any capacity, whilst living with her husband. However, there was press "campaign" against her personally she says, which she describes as "relentless". As a result of the pressure she is no longer working at the school.
Media interest in her life continues, she says. She refers to and exhibits a copy of an article published on 24 April 2015 in the News Shopper, online. This article reported suggestions that the claimant had been sacked from her position as acting headteacher of Wyborne Primary School after bringing her husband onto the premises. It referred to criticisms from parents. It featured two pictures of the claimant, one in which she was with her husband and the other a head and shoulders extract from that photograph. The claimant says that much of the article was false.
The claimant says that this...
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