The Chancellor, Masters and Scholars of the University of Oxford (The University of Oxford) and Others v Mel Broughton and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE,LORD JUSTICE WALL |
| Judgment Date | 15 August 2006 |
| Neutral Citation | [2006] EWCA Civ 1305 |
| Date | 15 August 2006 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B5/2006/1351 |
[2006] EWCA Civ 1305
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE HOLLAND)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Keene
Lord Justice Wall
Mr Justice Wilson
B5/2006/1351
MR C FLINT QC, MR T LAWSON-CRUTTENDEN AND MR B KENNELLY (instructed by Messrs Lawson-Cruttenden & co) appeared on behalf of the Appellants
MISS STEPHANIE HARRISON (instructed by Moss & Co) appeared on behalf of the 9th Defendant
MR BROUGHTON appeared in person
( Approved by the Court)
This appeal arises out of events surrounding the construction of a research laboratory by Oxford University ("the University") in South Parks Road, Oxford. When built, the laboratory may, it seems, be used in part for experimentation on living animals. Such experimentation is intended to conform with the statutory regulation applicable to it and would be a lawful activity. Likewise, the construction of a laboratory itself is a lawful activity. Nonetheless, the proposed experimentation, and hence the construction process, have given rise to vigorous opposition amongst those who consider it immoral to experiment on living creatures. That is of course a view which they are fully entitled to hold.
Some of those who oppose the works seek to protest and to make their views known in a lawful fashion, exercising their undoubted right to freedom of expression whereby they are entitled to seek to persuade others of the rightness of their views. Other opponents have not abided by the law but have resorted to intimidation, criminal damage and other unlawful acts. Some flavour of these unlawful activities can be found from paragraphs 27 and 28 of the judgment of Grigson J in these proceedings, dated 10 November 2004.
On 19 July 2004 a number of contractors involved in the construction project determined their contracts and for a time work on the project ceased. This seemed to echo what had happened in Cambridge, where a campaign to stop the construction of the research laboratory had been successful. In these circumstances, the University and others involved in the project began proceedings against a number of defendants in September 2004. Some of those defendants were individuals and others were unincorporated associations.
For present purposes the history of the proceedings can be summarised very briefly.
The claimants, now the appellants, sought and obtained interlocutory relief, first without notice and then, on 10 November 2004, following an inter partes hearing before Grigson J. His order continued the injunction and banned protest activities within an exclusion zone, save at an identified location on Thursday afternoons, and prohibited the photographing of protected persons, so-called, broadly speaking those engaged on the construction project. However Grigson J accepted a personal undertaking by the first defendant, Mr Broughton, in similar terms to the injunction which in consequence was not imposed on him.
The injunction was varied by Calvert-Smith J after a without notice hearing on 6 March 2006. Amongst other things, the variations included Mr Broughton amongst those bound by the injunction. There was then an inter partes hearing before Holland J on 10 and 11 April 2006. He set aside the order of 6 March 2006 in so far as it subjected Mr Broughton to the injunction because it had been made in his absence. The judge noted that the undertaking given to Grigson J continued. Beyond that, Holland J made an interim order pending a carrying out by him of a view of the area involved. His interim order generally continued the injunction, but also banned the use of noise amplification equipment, save for the use of a megaphone between 1.00 and 2.00 pm on Thursdays. Mr Broughton gave an undertaking to like effect.
The matter then came back before Holland J after a view of the site. In a careful and generally detailed reserved judgment dated 26 May 2006, he increased the size of the exclusion zone and also prohibited all noise amplification devices within a wider area, save when used in connection with a lawful, peaceful procession or assembly not more than once a month. The detailed terms of his order of 26 May 2006 are a matter of record and it is unnecessary to set them out in this judgment, except to emphasise that the order remained an interlocutory one effective until trial or further order.
This appeal is not concerned with most of the matters upon which Holland J pronounced. The University and other claimants appeal with the permission of Scott Baker LJ against two somewhat limited aspects of the judge's decision of 26 May. The first concerns the position of Mr Broughton who, as I have said, is the first defendant. The judge said (paragraph 33 of his judgment) that "with some hesitation" he was content to accept an undertaking from Mr Broughton so long as it reflected the terms of the order being made against the other defendants. Such a course had been opposed by the claimants, the present appellants. They had not opposed the acceptance of an undertaking by another individual defendant, Mr Cogswell, but they did oppose it in Mr Broughton's case and they now appeal again the judge's decision in that respect.
The other point which arises in this appeal concerns the judge's decision to strike out the statement of case as against the 12th defendant, Greg Avery. The judge did so under CPR 3.4.2(b) , that is to say, on the basis that it would be "likely to obstruct the just disposal of the proceedings" (see paragraph 13 of the judgment) .
Again the judge said that he acceded to the application to strike out "with more hesitation" than he did in respect of two other defendants. The appellants now contest that part of his decision also.
The context for considering both these matters must include the appellant's claim in the proceedings against these two respondents, Mr Broughton and Mr Avery. In their amended form, the particulars of claim seek injunctions and damages under the Protection from Harassment Act 1997 ("the 1997 Act") and for conspiracy and nuisance. The 1997 Act provides by section 1(1) that:
"A person must not pursue a course of conduct -
(a) which amounts to harassment of another, and
(b) which he knows or ought to know
amounts to harassment of the other."
Section 1(1) A then provides:
"A person must not pursue a course of conduct -
(a) which involves harassment of two or more persons, and
(b) which he knows or ought to know involves harassment of those persons, and
(c) by which he intends to persuade any person (whether or not one of those mentioned above) —
(i) not to do something that he is entitled or required to do, or
(ii) to do something that he is not under any obligation to do."
Section 2(1) makes such a course of conduct a criminal offence, subject to certain statutory defences to be found in section 1(3) . However, a breach of section 1 may also be made the subject of civil proceedings by any person who is or may be the victim. Furthermore, and of relevance for present purposes, other provisions in section 3 deal with the situation where an injunction has been granted to restrain a person from conduct amounting to harassment. Thus, sections 3(3) and 3(5) give the court the power to issue a warrant for the arrest of such a person if there are reasonable grounds for believing that he has broken an injunction. Section 3(6) is particularly significant. It makes it a criminal offence to break such an injunction without reasonable excuse.
The 1997 Act provides that where a person is convicted of a section 3(6) offence, he cannot then be punished for contempt of court for the same conduct; the converse position is also covered (see section 3(7) and (8)) . However a number of points would seem to flow from these provisions. First, it is to be deduced that Parliament in 1997 took the view that in cases falling within those provisions a further remedy was required in addition to the already existing one of proceedings for contempt of court when an injunction had been broken. Secondly, the criminal offence under section 3(6) only arises where an injunction is broken without reasonable excuse. No such offence occurs when an undertaking to the court given in civil proceedings under the 1997 Act is broken. Thirdly, a police constable has a power of arrest without warrant where a person is about to commit, or is in the act of committing, an offence (see section 24(1) of the Police and Criminal Evidence Act 1984 as amended by the Serious Organised Crime and Police Act 2005).
So far as the issue in respect of Mr Broughton is concerned, the appellants contend that the judge wrongly exercised his discretion in refusing to grant an injunction and in accepting Mr Broughton's undertaking. Mr Flint QC, who appears for the appellants, draws attention to the judge's own comments in his judgments about Mr Broughton's conduct which, it is said, shows that Mr Broughton had not abided by the undertaking which he had given to Grigson J. In his judgment of 11 April 2006, Holland J referred to a DVD exhibited by the appellants, being a compilation of material filmed of protests against the Oxford project. The judge accepted that this material showed Mr Broughton delivering what he called a "fiery address" on 14 January 2006 in terms
"inviting conduct of a campaign in a manner neither legal, nor peaceful, and nor in accordance with established civil and criminal law." (paragraph 10)
That wording chosen by the judge was clearly...
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