Joint Committee On Human Rights Fifteenth Report

2 Serious Organised Crime and Police Bill

Date introduced to the House of Commons

Date introduced to the House of Lords

Current Bill Number

Previous Reports

24 November 2004

8 February 2005

House of Lords 24

4th and 8th

2.1 In our latest report on this Bill, setting out our conclusions about its human rights compatibility in light of the Government's response to our questions, we pointed out that we had not yet considered the new provisions in the Bill concerning protection of the activities of animal research organisations[36] which were introduced by the Government at Report Stage in the Commons.[37] We said that they might be the subject of a further report if we considered them to raise significant human rights issues.

2.2 We subsequently received representations from the British Union of Anti-Vivisectionists about the new provisions in the Bill, including evidence of how they would affect the forms of protest in which they engage.[38] This short report deals exclusively with these provisions of the Bill.

2.3 We are concerned about the compatibility of the new criminal offence contained in clause 142 both with the right to freedom of expression in Article 10 ECHR and with the requirement in Article 5 ECHR that arrest and detention must be lawful. Clause 142 creates the new criminal offence of interfering with contractual relationships so as to harm an animal research organisation. A person commits the new offence if, with the intention of harming an animal research organisation, he either commits a crime or a tortious act causing loss or damage (or threatens to do so) in such a way that the crime or tortious act is intended or likely to cause a second person (B) not to perform any contractual obligation owed by B to a third person (C), to terminate any contract B has with C, or not to enter into a contract with C.[39] "Harm" is defined to include preventing or hindering the carrying out by the animal research organisation of any of its activities.

2.4 The new offence clearly engages the right to freedom of expression in Article 10 ECHR and the right to liberty in Article 5. In our view two distinct compatibility issues arise. The first concerns the necessity for this measure. The Explanatory Notes cite "the systematic way in which animal rights extremists have used the conduct covered by both of the new offences with the calculated aim of disrupting organisations carrying out licensed animal research procedures".[40] We find that we do not have any way of evaluating this claim about the necessity for the measures. We note the extensive list of offences and police powers already available against intimidatory forms of protest published as an annex to Animal Welfare—Human Rights: protecting people from animal rights extremists published by the Home Office, the Attorney General and the DTI in July 2004. We are not so far persuaded that any of the specific examples of intimidation which have so far been relied on by the Government to justify the need for the new power is not already a criminal offence under existing provisions. We draw this matter to the attention of each House.

2.5 The second compatibility issue concerns the legal uncertainty of the new offence in clause 142. As the Explanatory Notes point out, the effect of the clause is to make a tortious act committed with the necessary intention, which causes loss or damage, a criminal offence.[41] The clause does not list the crimes and offences to which the clause relates, but refers expansively to all criminal offences and all torts causing loss or damage. This includes the economic torts of interfering with contractual relations and conspiracy which are notoriously uncertain in their scope. We recognise that the uncertainty surrounding the reach of these torts could already be seen as an impediment to freedom of expression, but, as the Explanatory Notes themselves accept, criminalising such torts has the effect of creating a more serious impediment to freedom of expression than the existing torts. It also bring Article 5 into play, with its rigorous requirement of "lawfulness".

2.6 In our view the legal uncertainty created by the definition of this offence is demonstrated by the chilling effect these provisions will have on activity such as seeking to persuade contractors not to contract with animal research organisations, and advocating boycotts of those contractors if they refuse. The Explanatory Notes state that there will be no interference with Article 10 rights, because of the requirement that the commission of a tort can only form the basis of the offence if the tort is one causing loss or damage to the person against whom it is directed.[42] They state that the effect of this requirement is that "the offence will not apply to any peaceful protest to the effect, for example, that a person should end a contractual relationship with an animal research organisation or to personal expression of opinion to that effect. Such protests and expressions of opinion are not capable of causing loss or damage to the person at whom they are addressed."

2.7 We are not persuaded that the offence does not have precisely the chilling effect which is disclaimed here. A campaign by a law-abiding organisation such as the BUAV to attempt to persuade an airline not to transport animals to animal research organisations, widely assumed to be a perfectly legitimate form of protest activity in the past, may well be within the scope of the economic torts. A campaign advocating a boycott of such an airline if it refused to do so is even more likely to be within the scope of those torts. In our view the offence therefore fails to satisfy the requirement of legal certainty as it is currently defined, and is likely to be disproportionate in its effect because of the chilling effect it will have on these non-intimidatory forms of protest. We draw this matter to the attention of each House.

36   Clauses 142-146 of the Bill Back

37   Eighth Report of Session 2004-05, Scrutiny: Fourth Progress Report, HL Paper 60, HC 388, para. 2.2 at footnote 36 Back

38   Appendix 1 Back

39   Clause 142(1)-(3) Back

40   EN para. 533 Back

41   EN para. 374 Back

42   EN para. 532 Back

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