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Joint Committee On Human Rights Fifteenth Report


Appendices


Appendix 1: Memorandum from the BUAV re: Serious Organised Crime and Police Bill

Serious Organised Crime and Police Bill (as it left the House of Commons on 8 February 2005) Criminalising of economic pressure

Legal analysis by the BUAV

A. Introduction

1. This briefing addresses the provisions in the Serious Organised Crime and Police Bill ('the bill') which criminalise in certain circumstances the exertion of economic pressure on individuals and companies linked in some way to animal research establishments. The new clauses are in Part V of the Bill (clauses 142-146). The new offences are introduced by clauses 142 and 143.

2. The bill also introduces other provisions aimed at curbing the activities of certain anti-vivisection protesters. We do not address those in this briefing.

3. We use the term 'intimidatory methods' to encompass the use or threat of violence and other forms of intimidatory or coercive behaviour used to achieve campaign objectives.

B. The BUAV

4. As our name suggests, the BUAV campaigns against animal experiments. Our mission statement reads:

'The BUAV opposes animal experiments. We believe animals are entitled to respect and compassion which animal experiments deny them.

The BUAV campaigns peacefully for effective, lasting change by challenging attitudes and actions towards animals worldwide'.

5. The BUAV is a wholly law-abiding organisation. We unequivocally deprecate the use of intimidation in furtherance of the anti-vivisection cause. By intimidation we mean the use or threat of violence, or other intimidatory methods of protest.

6. We are also unequivocally opposed to the violence to animals which vivisection represents.

C. Executive Summary

7. The new provisions are unnecessary. They confuse campaign tactics or objectives with campaign methods. The criminal law should not be concerned only with the latter. The mischief identified by the Government and others is the intimidatory methods used by a small minority of anti-vivisection campaigners. But the criminal law already outlaws such methods. There is no need to extend its reach to cover campaigning tactics which do not involve intimidatory methods. This is what the new provisions do.

8. The provisions represent a serious curtailment on free speech and protest. We believe they may well breach Article 10 of the European Convention on Human Rights ('the convention').

9. By including 'an act amounting to a criminal offence' within the definition of 'relevant act', the new provisions introduce a nonsensical tautology—it will be a criminal offence to commit a criminal offence. Worse, this will have the effect in some circumstances of increasing penalties by the back door.

10. The criminalising of tortious acts is unwarranted and will strike at the heart of campaigning which seeks to exert economic pressure (as much campaigning inevitably does).

11. There is uncertainty about the scope of some torts, and indeed about what constitutes a tort in the first place. The new provisions fail to give any relevant definitions. It is a fundamental principle of the criminal law, now underpinned by the convention, that the criminal law should be clear and accessible, so that citizens should know how to order their lives.

12. It is inherently unfair to create criminal offences for particular types of protesters (anti-vivisectionists). This may constitute unlawful discrimination under Article 14 of the convention.

13. Unacceptable though their activities are, everyone recognises that anti-vivisection protesters who use intimidatory methods represent a very small minority of anti-vivisection protesters generally.

14. There are already a whole array of tools at the disposal of the authorities and those involved in the animal research industry to give adequate protection from intimidatory methods. The new provisions, draconian as they are, are likely to send more protest underground and therefore have the opposite effect to that desired.

D. Summary of the new offences

15. The new offences are not altogether easy to follow. We therefore summarise our understanding of them:

(a) clause 142: interference with contractual relationships so as to harm animal research organisations

16. This creates an offence where A:

with the intention of harming an animal research organisation

either

(i) does a relevant act-i.e. either 'an act amounting to a criminal offence' or 'a tortious act causing B to suffer loss or damage of any description'

or

(ii) threatens that he or somebody else will do a relevant act; and

either A's intention or the likely effect of his act or threat is to cause B:

(I) not to perform any contractual obligation owed by B to C (irrespective of whether non-performance amounts to a breach of contract)

(ii) to terminate his contract with C

(iii) not to enter into a contract with C

17. A number of the terms are defined:

'harming an animal research organisation' means:

(i) causing it to suffer loss or damage or

(ii) preventing or hindering it from carrying out any of its activities

'animal research organisation' is defined in clause 145 to mean the owner, lessee or licensee of premises designated under the Animals (Scientific Procedures) Act 1986 ('the 1986 Act')

'contract' includes 'any other arrangement'.

Importantly, however, 'tortious act' is not defined (see below).

18. The ingredients of the offence are therefore: (i) the commission or threatening of a 'relevant act' (including a tortious act); (ii) with the intention (or likely effect) of causing B to rethink his actual or putative contractual relationship with C (presumably an animal research organisation); (iii) all with the overall intention of harming an animal research organisation.

19. Action wholly or mainly in contemplation or furtherance of trade disputes is not caught.

20. The maximum penalty is 5 years' imprisonment and/or an unlimited fine (clause 144). The Director of Public Prosecutions must consent to a prosecution.

(b) clause 143: intimidation of persons connected with animal research organisations

21. This creates an offence where A:

with the intention of causing B to abstain from doing something B is entitled to do (or to do something which B does not have to do)

(i) threatens B that A or someone else will do a relevant act (defined as above); and

(ii) does so wholly or mainly because of B's position

There then follows a long list of protected positions, including employees of animal research organisations, students at relevant establishments, people with a financial interest in an animal research organisation, customers or suppliers and even a 'spouse, civil partner, friend or relative of, or a person who is known personally to' most of the other categories

22. The ingredients of the offence are therefore: (i) a threat that someone will commit a relevant act (including a tortious act); (ii) with the intention that a person of a specified description will change his behaviour.

23. Trade disputes are again excluded.

24. The maximum penalty is again 5 years' imprisonment and/or an unlimited fine (clause 144). As with clause 142, the DPP must consent to a prosecution

(c) clause 146: extension of clauses 142 and 143

25. This enables the Home Secretary to extend clauses 142 and 143 to other areas, where there is a similar pattern of protest activities as with animal experiments.

E. Analysis: features common to clauses 142 and 143

(a) introduction

26. Clause 142 aims to protect relationships between animal research organisations and their customers and suppliers. It criminalises tortious acts which cause a customer/supplier loss or damage. It covers both acts and threats.

27. Clause 143 aims to protect a long list of people linked to animal research organisations (however tangentially) from being pressurised by the threat of criminal or tortious acts not to do something they are entitled to do or to do something they do not have to do. The list includes customers and suppliers, and there is therefore an overlap with clause 142. At present, clause 143 covers only threats, although Ms Flint indicated in the House of Commons that the Government would consider whether this should be extended to acts.[67] If it does, it is difficult to see what remaining role there would be for clause 142—there are extra hurdles to completion of the offence under that clause.

(b) 'relevant act' (clauses 142 and 143): criminal offence

28. In both clauses, 'relevant act'—the thing which is prohibited—includes 'an act amounting to a criminal offence'. This is nonsensical—the clauses are saying that it is an offence to commit a criminal offence, which is of course a tautology.[68]

29. However, there is an important practical effect. The clauses carry a maximum penalty of 5 years in prison, whereas the offence under other legislation which constitutes the 'relevant act' might well carry a less severe penalty (depending on the nature of the act in question). The effect, therefore, would be to increase a statutory maximum penalty by the back door in certain circumstances. This is clearly unacceptable.

(c) 'relevant act' (clauses 142 and 143): tortious act

i. what is a 'tort'?

30. A tort is a civil wrong. It does not normally constitute a criminal offence; rather it entitles the wronged party to sue the perpetrator for damages if he can show he has suffered loss.[69] Sometimes he can seek an injunction.

31. There are a great many torts in English law. The main ones are:

negligence, as where, for example, a driver causes an accident through his carelessness

trespass

defamation

nuisance (essentially this constitutes interference with enjoyment by an owner of his property)

wrongful interference with another person's goods

the so-called economic torts (see below).

32. However, what constitutes a tort, and how they should be classified, has long exercised academics. For example, Halsbury's Laws of England ('Halsbury's') includes breach of confidence as a tort, whereas most commentators do not.[70] If the Government persists with criminalising tortious act—which we do not believe it should—it is essential that the bill should define precisely what is meant by 'tortious act'. Otherwise, a fundamental principle of English criminal law - that people should know what is and is not permitted so that they can conduct themselves accordingly—will be breached.

33. In any event, it is clear that 'tortious act' covers a very wide range of activity. If Halsbury's is correct about breach of confidence, the implications would be particularly serious. Animal experiments are conducted under conditions of very considerable secrecy.[71] Usually the only way to find out what is done to laboratory animals, for what purpose and with what result is by conducting undercover investigations, such as the one carried out by the BUAV into primate neuroscience research at Cambridge University in 2001/2.[72] This necessarily involves breaches of confidence, unless the public interest requires the information to be disclosed.[73] Investigators may now conceivably risk five years in prison—and yet no one knows.

ii. economic torts

34. The economic torts are particularly relevant in the present context, because the clauses are aimed at campaigning designed to exert economic pressure. There are two main types for present purposes:[74]

inducing or procuring a party to a contract to break the contract: the defendant must know of the contract and intend that it should be breached. Importantly, however, he need not intend that one of the parties should suffer loss or damage as a result. Although simply advising someone to pull out of a contract probably does not suffice, hindering the performance of a contract does, even if that does not render the party concerned in breach. Justification may be a defence but the circumstances are ill-defined.

Clause 142(2)(a) and (b) are obviously relevant here.

conspiracy:[75] there are two types: (i) where two or more persons agree to commit an act which would be lawful if done by one person, the conspirators intend to cause damage to the intended victim and such damage is in fact caused; and (ii) where two or more persons agree to commit some other tort and damage is in fact caused to the victim.

It will readily be seen that type (i), in particular, will catch many campaigns against a target company. 'Damage' includes, in particular, economic damage.

35. The BUAV has for a number of years sought to persuade airlines not to transport primates destined for research laboratories, with considerable success. No one has ever suggested that this is anything other than a legitimate campaigning tactic. Depending on the precise circumstances, campaigning of this sort might in future constitute a serious criminal offence. So could consumer boycotts.

iii. defamation

36. Broadly-speaking, a defamatory statement is an untrue statement which causes damage to the reputation of the victim in the eyes of right-thinking people. Libel is a statement in permanent form (including broadcasts) and slander the spoken word in other contexts

37. Importantly in the present context, the maker of the statement need not intend to defame the victim.

38. Libel can be a criminal offence, if it is serious.[76] In the report stage debate, Ms Flint gave the example of protesters publishing a leaflet falsely accusing a animal laboratory supplier of being a paedophile.[77] That is clearly unacceptable. However, the important point is that this is already criminal libel. The effect of the new provision is, in some circumstances, to criminalise all forms of defamation—slander as well as libel—however minor and unintended. That has huge implications for free speech.

iv. trespass

39. Trespass occurs when a person enters the property of another person without consent.

40. Certain forms of trespass—principally, aggravated trespass—are already criminal offences. The effect of the new provisions will, in some circumstances, be to criminalise all forms of trespass, however unintended, provided the landowner is able to show some (perhaps minimal) loss or damage.

v. nuisance

41. Nuisance can cover a multitude of situations where the reasonable enjoyment by an owner of his property is interfered with. An obvious example in the present context is noisy demonstrations outside a company's premises.

vi. the criminalisation of tortious activity: general

42. Clauses 142 and 143 will therefore criminalise the commission of torts in certain circumstances. This is seriously problematical for a number of reasons:

(i) torts are designed to give a person redress against another when certain acts (or omission) by the latter cause him loss. As such the state does not get involved and does not need to.[78] It is a major step to move tortious activity into the public (i.e. criminal) arena and one which has generally been resisted. There is no warrant for doing so in the present circumstances. The vice which has been identified are intimidatory methods of protest. These are already illegal.

(ii) as already mentioned, there is academic disagreement about whether some unlawful activity is a tort (such as breach of confidence)—uncertainty is inimical to the criminal law;

(iii) also as already noted, there is uncertainty about the precise scope of some torts;

(iv) some torts—such as trespass and defamation—require no intention or even carelessness on the part of the wrongdoer. Although the new provisions require the defendant to have an intention—harming an animal research organisation under clause 142 and persuading another person to act or not to act as he chooses under clause 143—there is no requirement that the defendant must intend to commit a tortious act (even where that is the type of 'relevant act').

43. Even MPs broadly in favour of the new provisions expressed misgivings about their width via the use of tortious acts.[79] The Liberal Democrats put down amendments which would have meant that any 'loss or damage' had to be 'significant' but the Government was unwilling to adopt this approach.

(d) human rights implications

44. Clauses 142 and 143 undoubtedly curtail free speech. The Government would argue that it is necessary to do so to protect those associated with animal research from intimidatory methods. Paragraph (2) of Article 10 of the convention allows derogation from the right to freedom of expression where it is 'necessary in a democratic society' for (inter alia) 'the prevention of disorder or crime'.

45. However, the point is that intimidatory methods are already against the criminal law. The Protection from Harassment Act 1997 ('the 1997 Act') is often used to prosecute anti-vivisection campaigners.

46. In addition, one of the preconditions for reliance on an Article 10(2) derogation is that it is 'prescribed by law', which carries with it the requirement that the law is reasonably clear. The uncertainty around the new offences, and in particular the meaning of 'tortious act', means that the requirement is not met.

47. We deal below with the discriminatory aspect of the new provisions.

F. Clause 142: other concerns

48. There are a number of other concerns about clause 142:

(a) one of the identified 'steps' is for B not to enter into a contract with C: it is particularly objectionable that it should now in some circumstances be an offence to seek to persuade a person not to enter into a contract with another person, even though the means used are not otherwise illegal. Although this would not be caught by the tort of inducing a breach of contract—there has to be an existing contract for that tort to apply—it would be caught by the first type of conspiracy if the intention was to cause harm to an animal research organisation.

(b) 'harm' (to an animal research organisation) is defined in a very broad way and clearly includes economic harm. It should be borne in mind that any campaign against a particular company is liable to cause it economic harm—indeed, that is usually the point. In 1997 few years ago, Huntingdon Life Sciences ('HLS') unsuccessfully sought a permanent injunction against the BUAV.[80] One of the orders it sought would have prevented us doing any 'harm' to them. Since the only harm that can be done to a corporate entity is economic, this would in effect have prevented us from campaigning against them at all. Fortunately, Mr Justice Eady saw the dangers and recognised that HLS was attempting to:

'clamp down on the discussion of matters of public interest or upon the rights of political protest and public demonstration which was so much a part of our democratic tradition'.

He continued:

'It was necessary, clearly, to distinguish in the relief sought between that which might be necessary to prevent violence and unlawful harassment, and that which would inevitably stifle legitimate comment on matters of undoubted public interest. That [HLS] singularly failed to do. It is manifest from the wide-ranging terms of the injunction sought in the writ that [HLS], if they had obtained it, would be preventing any discussion or communication about the way they conducted their business at a very sensitive time'.

It is a matter of very great concern that the Government is now in effect doing the very thing which Mr Justice Eady warned against—failing to distinguish between violence and unlawful harassment, on the one hand, and legitimate protest, on the other.

(c) it is thought that B is intended to refer to customers and suppliers and C an animal research organisation. However, it is arguable that B could equally refer to an animal research organisation itself in a particular case. This is another uncertainty.

(d) as noted, 'contract' is defined as including 'any other arrangement': it is not clear what this means. There was no explanation during the debate at report. Once again, criminal offences need to be clear.

(e) the fact that it is sufficient, for an offence to be committed, for a relevant act by A to be 'intended or likely' to cause B to take any of the relevant steps necessarily means that he need not intend that B should does so.

G. Clause 143: other concerns

49. At present, the offence is limited to threats to commit a criminal offence or do a tortious act. As with new clause 10, a threat amounting to a criminal offence adds nothing to the existing law. It is not clear in practice precisely when a threat would constitute a tortious act.

50. As already noted, Ms Flint indicated in debate that they would consider whether the offence should be extended to acts as well as threats. If it is, some of the hurdles the prosecution would have to overcome under clause 142 would not have to be overcome (for example, the intention of harming an animal research organisation).

51. It should be perfectly acceptable in a democratic society to seek to persuade a person to do or not do something he has the right to do or not to do. That is the lifeblood of campaigning. Of course, intimidatory methods should not be used, but at the risk of repetition those are already against the law. Once again, the Government is confusing tactics with methods.

H. Clause 146

52. The Government will argue that the existence of this power to extend the new offences to other areas means that it would not be in breach of Article 14 of the convention. Article 14 says that, where one of the other rights in the convention is engaged (here, principally the rights to free expression (Article 10), impart beliefs (Article 9) and peaceful assembly and association (Article 11)), the law must not unfairly discriminate against particular groups.

53. However, the fact remains that the anti-vivisection campaigners are being singled out. There are two points here. First, many other groups resort to direct action of one sort or another (usually with economic targets)—for example, pro-hunters, Fathers4Justice, GM and other environmental groups and now Christian Voice. Secondly, as we have sought to explain, the new provisions will catch activity which has never been criminal. For those affected, it is particularly galling that this should be on a discriminatory basis.

54. In our view, Article 14, taken in particular with Article 10, would be engaged. To put it at its lowest, it is questionable whether the Government would be able to justify the discrimination inherent in the new provisions, even given the terms of clause 146.

I. The true scale of intimidatory anti-vivisection methods

55. Without in any way seeking to diminish the seriousness of the conduct of some people, or the effect of their action on victims, it is important to put the problem into proper perspective.

(a) governmental statements

56. On 20 May 2004, Caroline Flint MP, Parliamentary Under-Secretary of State at the Home Office said in a Parliamentary answer:[81]

'It is not possible from the information collected centrally by the Home Office to identify whether a victim of crime works in animal research. However, from regular discussions from the police and industry, we are aware that one individual who works in animal research was physically assaulted in 2001…'.

It is thought that the incident to which she was referring was the assault on Brian Cass, managing director at Huntingdon Life Sciences ('HLS'). That assault was wholly unacceptable, but the important point for present purposes is that it was an isolated incident.

57. Similarly, the Foreword by the Prime Minister and the Home Secretary 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 refers to those behind 'an illegal campaign of intimidation and violence and against individuals and firms' as 'a tiny minority of animal rights extremists'. The body of the report similarly refers to 'a tiny group of extremists [who] are using illegal and violent methods to try to stop animal experiments'.[82]

58. Paragraph 64 says:

'The new powers [given to police by recent legislation] are being used effectively by police forces. From January to April 2004 there have been 24 arrests for breaches of Section 14 of the Public Order Act 1986 and 11 arrests for the amended offence of aggravated trespass in buildings. In total, in the first 6 months of 2004 there were 140 animal rights activists either arrested or reported compared with only 34 over the same period in 2003. Recent months have seen the conviction of 21 activists for a range of offences including aggravated trespass, harassment, common assault, assault on police and criminal damage. Other cases are awaiting trial'.

These figures do not give the impression of large numbers of activists acting outside the law. Arrest is not, of course, the same thing as guilt; nor is being reported. If the new powers are being used effectively, why the need for new offences?

(b) statement by Jacqui Lait MP

59. In a House of Commons debate entitled Animal rights extremists which she initiated on 7 July 2004, Jacqui Lait, a Conservative MP, acknowledged that 'the vast majority of people who take a strong stand against the use of animals behave legally'. So they do.

(c) industry statements

60. Dr Mark Matfield, the then executive director of the pro-vivisection Research Defence Society ('RDS'), said three years ago:[83]

'Some scientists do not speak out on animal experimentation for fear of being targeted by extremists. The majority of the scientific community has always been hesitant about speaking to a public audience (and even more nervous about speaking to the media) about the use of animals in research. In part, this reflects a general lack of experience in communicating with these audiences.

However, the most prevalent reason for their hesitation is fear of being targeted by animal rights extremists. Understandable as this fear might be, it is misplaced. Very few researchers have become the focus of animal rights campaigns. Fewer still have ever been attacked. Leaving aside the one or two leading spokespeople who have, over the years, become the bete noir of the animal rights movement, it is difficult to think of any researchers who have spoken publicly about animal research and subsequently been targeted.

In June 2000, 110 leading UK scientists signed an open letter to the Minister for Science calling on him to reduce the unnecessary bureaucracy that was hindering animal research. Some of the media interpreted this, wrongly, as a plea for scientists to be allowed to do more animal experimentation or relax the animal welfare standards. The names of all the signatories, and photographs of some of them were published by the press. However, not one of the signatories has been targeted by animal rights groups as a result' (emphasis added).

61. Similarly, Dr Simon Festing, the then director of the Association of Medical Research Charities (another pro-vivisection lobby group) and the recently-appointed executive director of the RDS, was quoted in the Sunday Herald on 19 September last year as describing as 'absolute rubbish' the claim that if animal researchers at Scottish universities talked about their work they would be attacked by activists. He said:

'You will not attract the wrath of the animal rights extremists if you speak out, if you are proud of your work'.

62. The BUAV firmly believes that some parts of the research industry is 'talking up' the problem, because it wishes to make legitimate protest more difficult. We will return to this.

J. Existing powers

63. In judging the need for the new provisions, it is, of course, necessary to consider what is already available. These break down into (a) criminal legislation; and (b) civil remedies.

(a) criminal legislation

64. Animal welfare—human rights: protecting people from animal rights extremists published by the Home Office, the Attorney-General and the DTI in July 2004 ('the Government paper') lists all the additional offences and police powers it has recently created with anti-vivisection protesters in mind. We attach the relevant extract. It is a long list. The 1997 Act is often used.

65. Anti-social behaviour orders are used against protesters. Paragraph 66 of the Government paper notes that an activist convicted of aggravated trespass had been made the subject of an anti-social behaviour order 'which bans her from entering Cambridgeshire or contacting anyone associated with the research company [HLS] for 3 years'. We do not know the circumstances, but the important point for present purposes is that the authorities clearly do not lack strong, some would say draconian, powers.

(b) civil remedies

66. In recent years, a number of animal research establishments and companies supplying them have obtained injunctions against anti-vivisection protesters, usually under the 1997 Act. Their terms are often extremely wide. The problem with the concept of 'harassment' is that it covers acts which in themselves are perfectly lawful. Recent injunctions could apply to law-abiding organisations such as the BUAV because of the standard definition of 'protester' now used.[84]

67. There are serious civil liberties concerns about these injunctions. However, the important point for present purposes is that companies already have strong powers at their disposal. Breach of an injunction is contempt of court, punishable as a criminal offence.

9 March 2005

Annex

Annex A 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

EXISTING PROVISIONS WHICH CAN BE USED TO TACKLE ACTIVITIES CARRIED OUT BY ANIMAL RIGHTS EXTREMISTS

Malicious Communications Act 1988

Under this Act it is an offence to send communications or other articles with intent to cause distress or anxiety. The 1988 Act was strengthened by section 43 of the Criminal Justice and Police Act 2001 to cover all forms of communication such as email, faxes and telephone calls.

Section 241 of Trade Union and Labour Relations (Consolidation) Act 1992

Section 241 creates an offence where various activities are carried out with a view to compelling another person to abstain from doing or to do any act which that person has a legal right to do or to abstain from doing. The behaviour must be "wrongful" ie it must amount to a civil wrong such as nuisance, intimidation or trespass. Relevant activities include using violence to or intimidating the person concerned or his family; injuring his property; and watching or besetting his house or place of business or its approaches. The section is most obviously relevant in the context of trade disputes. However, it is not limited in its terms to such a dispute and one of the leading cases concerns a demonstration outside an abortion clinic. That case (DPP v Fidler 1 WLR 91) may also illustrate the difficulties in prosecuting for the offence in the context of pickets and demonstrations as it turned on the difference between "compelling" and "persuading". The defendants argued successfully that their actions were designed to persuade, not to compel women not to have terminations. The offence will also only be available where the protestors' action is tortious. If the demonstration is entirely peaceful and does not involve trespass or intimidation or amount to a public nuisance, no offence under section 241 may be committed.

Protection from Harassment Act 1997

It is a criminal offence under section 2 of the Protection from Harassment Act 1997 to pursue a course of conduct which amounts to harassment of another—harassment includes alarming or causing a person distress and conduct includes speech. An intention to cause harassment is not necessary, but it is necessary to show that a reasonable person would think the behaviour amounted to harassment. It is a defence to show that the course of conduct was reasonable in the particular circumstances. It is an offence under section 4 of the Act to pursue a course of conduct causing another to fear that violence will be used against him.

The court may make a restraining order on conviction for either offence and a victim of harassment may take civil proceedings under section 3 of the Act for an injunction and damages for any resulting anxiety or financial loss. The perceived limitations of the powers are that they require a "course of conduct" and an identified individual against whom civil proceedings may be brought. The Protection from Harassment Act 1997 was amended by section 44 of the Criminal Justice and Police Act 2001 to clarify that it is an offence for a group of people to collude with each other to cause others harassment, alarm or distress, where each one of the perpetrators only undertakes one action of harassment.

Breach of the Peace

The common law power to arrest to prevent a breach of the peace may also be available.

Criminal Justice and Public Order Act 1994

The offence of aggravated trespass was created by Section 68 of the Criminal Justice and Public Order Act 1994, primarily to deal with the activities of hunt saboteurs.

A person commits an offence if he trespasses on land and in relation to any lawful activity which persons are engaging in on that land, does anything which is intended to intimidate or deter persons from engaging in that activity, or obstructing or disrupting that activity. The Antisocial Behaviour Act 2003 extended the offence of aggravated trespass to include buildings with effect from 20th January 2004.It is a known tactic of protestors to rush into a building with a view to intimidating, obstructing or disrupting people from going about their lawful business. Animal rights protestors use this tactic to disrupt the activities of targeted companies.

Criminal Justice and Police Act 2001

Section 42 of the Criminal Justice and Police Act 2001 allows a police officer to give directions to any person who is "outside or in the vicinity of" a home, providing that

the police officer reasonably believes that the purpose of the protestor's presence is to persuade somebody to do something which they are not under any obligation to do, or conversely, not to do something which they are entitled to do; and

the police officer reasonably believes that the presence of the person or people to whom he is giving the direction amounts to harassment of the resident, or is likely to result in harassment or to cause alarm or distress to the resident.

The direction may include any requirements the police officer considers necessary to prevent the harassment of the resident or the causing of alarm or distress to the resident. Failure to comply with a direction is an offence and the police have a power to arrest a person for the offence.

Section 45 established a "secure register" for company directors. Since April 2002, any Company Director, Company Secretary or partner in a limited liability partnership who is at risk of intimidation and harassment may apply to the Secretary of State for Trade and Industry for a Confidentiality Order that places details of their usual residential address on a secure register.

Details of the home address of a Director granted a Confidentiality Order, will not appear on the Public Register of UK Directors, but may be accessed by authorised bodies, e.g. the

police or regulatory authorities. Since the Secure Register was established, over 3,000 persons have been granted Confidentiality Orders.

Terrorism Act 2000

The Terrorism Act 2000 was introduced to provide permanent UK wide legislation and to cover all forms of terrorism by widening the definition of terrorism in the Act. There are a range of provisions in the Act which are designed to target those who engage in serious violence, endanger life or create a serious risk to the health and safety of the public for the purpose of advancing a political, religious or ideological cause.

Conspiracy

Where people are acting together and as a result of an agreement to commit a criminal offence this can be charged as a criminal conspiracy to commit the offences.

Theft Acts 1968 and 1978

Ordering goods and services in the name of a third party is covered by the offences of obtaining goods and services by deception under the both the 1968 and 1978 Theft Acts.

Stop and search powers

Section 1 of the Police and Criminal Evidence Act 1984 has been amended so that since 20th January 2004, the police have the power to stop and search for articles that could be used to commit criminal damage.

Section 146 of the powers of Criminal Courts (Sentencing) Act 2000

Since 1 January 2004, courts in England and Wales have the power to ban persons convicted of any offence from driving. This is a measure which could be used by the courts when sentencing persons convicted of offences such as criminal damage, public order or harassment etc.


67   HoC col. 1261 (7 February 2005) Back

68   In the debate in the House of Commons on 7 February, there was some discussion as to whether 'an act amounting to a criminal offence' was somehow different from 'a criminal act'. The Minister, Caroline Flint MP, was unclear (col. 1261) Back

69   Sometimes, as with trespass, the wronged party need not have suffered loss. However, he will then be entitled only to nominal damages. The 'tortious act' contemplated by clauses 142 and 143 must cause loss. Back

70   We believe, in fact, that Halsbury's is wrong Back

71   Under section 24 of the 1986 Act, it is an offence, punishable with imprisonment for up to two years, for a minister or official to disclose information given in confidence (as it usually is). The Freedom of Information Act 2000 may open things up to some extent but this remains untested at present. Back

72   Issues arising out of the regulation of the research by the Home Office are currently the subject of an application for judicial review by the BUAV. Back

73   Neither Cambridge nor its commercial backers has brought an action against the BUAV for breach of confidence. Back

74   Some commentators also identify intimidation as an economic tort, again with two types: (i) where a person threatens to do an illegal act to compel another person to do something which causes him loss; and (ii) where a person intimidates a person with the intention of causing loss to a third party. In each case, the threatened person must take the threat seriously. However, it is very likely that such action would already by covered by the criminal law.  Back

75   The leading cases are Lonrho Ltd and another v Shell Petroleum Co Ltd and another [1982] AC 173 (HL) and Lonrho plc v Fayed and others [1991] 3 All ER 303 (HL) Back

76   See Gleaves v Deakin [1980] AC 477 (HL) Back

77   Col. 1251 Back

78   Other than by facilitating resolution of the dispute Back

79   Such as Evan Harris MP (Liberal Democrat) (e.g. col 1251) Back

80   Huntingdon Life Sciences v Curtin and others (1997) (unreported) Back

81   Col. 1128 Back

82   para. 7 Back

83   Article entitled Justifying Animal Experimentation posted on the 'HMS Beagle' website on 18 January 2002 Back

84   By simply serving the injunction on us-the definition extends to anyone to whom notice is given Back


 
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