Obtaining Injunction

June 20th, 2019 by James Goudie KC

Birmingham City Council v Afsar and Others (2019) EWHC 1560 (QB) is a case  about a protest which has been carried on outside a primary school. Warby J granted interim injunctions, on the basis that the Council was likely to succeed at trial in showing that restraint on the way that protests were being conducted was justified.

The protest involved parents of pupils at the school, relatives of theirs, and other individuals opposed to some of the ways the school is teaching its pupils. It had been going on for a number of weeks. The focus of the protest has been the teaching of matters relating to sexual behaviour, sexuality, and gender.

The Council applied to Court for an injunction to restrain aspects of this protest. There were four named defendants. The first three were individuals.  The fourth defendant was “Persons Unknown”, a category designed to cover persons interested in protesting at or near the school. The application was prompted by what the Council saw as an escalation in the protests, particularly in the last week of the first half of term.

In summary, the injunctions against the named defendants contain (1) an exclusion zone order, prohibiting entry into an area around the School (2) a prohibition on conduct which harasses, alarms or causes distress to others (3) a ban on approaching staff of the school or witnesses in the case (4) & (5) prohibitions on the use of social media to offend or abuse teachers, and (6) a ban on otherwise engaging in or encouraging others to protest within the exclusion zone. The injunctions against the named individuals were sought pursuant to the Local Government Act 1972 (s 222), and the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”) (s 7). The terms of the injunction against Persons Unknown were sought pursuant to the Local Government Act 1972 (s 222), Highways Act 1980 (s 130), and the Localism Act 2011 (s 1).

Section 1 of the 2014 Act allows the Court to grant a final injunction if (a) the court is satisfied, on the balance of probabilities, that the defendant has engaged or threatens to engage in anti-social behaviour and (b) considers it just and convenient to grant the injunction for the purpose of preventing the defendant from engaging in anti-social behaviour. Section 7 allows the court to grant an interim injunction pending a final hearing if it “thinks it just to do so”. This power is available on a without-notice application (s.7(1), (3)-(4)). Anti-social behaviour is defined by s 2(1), to encompass conduct “that has caused, or is likely to cause, harassment, alarm or distress to any person”, or is “capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.”

Warby J said:-

“12. These provisions, like those of any statute, must be interpreted and applied in conformity with the Convention, and other statutory provisions. The rights to protest, to associate with others for that purpose, and to express one’s religious views, are all aspects of the fundamental human rights protected by the Convention and the Human Rights Act 1998 (“HRA”). They are rights safeguarded by Articles 9, 10 and 11 of the Convention. Article 2 of the First Protocol (“A2P1”) is also relevant, or at least arguably so, insofar as it requires the state to respect the right of parents to ensure that education and teaching is in conformity with their own religious and philosophical convictions. There would seem to be an overlap here with the right to respect for one’s private and family life, protected by Article 8.

13. On the other side of the argument lie the right to education, the right to impart and receive information and opinions with which others may disagree, and the right to respect for one’s private life: articles 8 and 10 of the Convention, and A2P1. The court must act compatibly with these rights: s 6 HRA. Also relevant are the civil rights of citizens to be free from threatening behaviour, unwarranted harassment, or conduct that unjustifiably causes alarm or distress. These are protected by Article 8 and by domestic law, including the statutory provisions I have cited above.

14. These competing rights are engaged in the context of a dispute over issues of social, political, and educational policy. But I repeat what I said at the hearing: it is no part of my role, at this stage of the case, to decide any question about the rights and wrongs of the views expressed by the protestors. Not only is this not the trial, it does not seem to me to be an appropriate legal vehicle for the resolution of issues of that kind. It might be open to the protestors to seek judicial review of the educational policy that has been adopted and applied here, but it is not easy to see how the merits of that policy can figure large in this case.”

“16. … This application is … not about the content of the expression under discussion. The injunctions were not granted to prevent the expression of particular views, but to protect against anti-social behaviour, harassment, misuse of the highways, and other interests which have to do with where and how the protestors are expressing their opinions.

17. It is not in dispute that the Council has standing to seek injunctions of the kind that were sought and granted here. Nor is there any dispute that the named defendants are amenable to the Court’s jurisdiction under the statutory provisions relied on.

18. The pursuit of remedies against “Persons Unknown” has been a well-trodden path, … There is no doubt that claims of this kind are legitimate in principle, and orders have often been made against Persons Unknown, in the media context, and in the context of trespasses and protests. But the limits of the jurisdiction and the practice in such cases have come under fresh scrutiny in two recent and important judgments: that of the Supreme Court in Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 [2019] 1 WLR 1471, and the subsequent decision of the Court of Appeal in Boyd v Ineos Upstream Ltd [2019] EWCA Civ 515. …

19. The relevant procedural law is clear, and well-established, and is or should be well-known. …”

“68. … I accept the submission …, that I should ask and answer the two questions …

“First, has the claimant demonstrated that it would probably succeed at a trial in showing a risk, justifying an injunction, that unless restrained the defendant will cause protest or demonstration which is unlawful, and actionable at the suit of the claimant? Secondly, if so, can an injunction be framed which serves to restrain the encouragement of unlawful conduct, without straying into improper restraint of lawful protest?”

I answer both questions “yes”. … the Council appears more likely than not to succeed at trial in obtaining injunctions – albeit rather more limited than that put in place at the outset – which serve to protect against harassment and other anti-social behaviour, whilst permitting legitimate expression of lawful dissent against the policies of the School.”

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