THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57981/00 
by Diane SELVANAYAGAM 
against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 12 December 2002 as a Chamber composed of

Mr G. Ress, President
 Sir Nicolas Bratza
 Mr L. Caflisch
 Mr P. Kūris
 Mr R. Türmen
 Mr J. Hedigan
 Mrs H.S. Greve, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 21 January 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Diane Selvanayagam, is a United Kingdom national, who was born in 1969 and lives in Newcastle-upon-Tyne. She is represented before the Court by Mr K. Kerrigan, a lawyer practising in Newcastle-upon-Tyne.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant has been involved in peaceful protests designed to draw attention to practices carried out at Corneyhaugh Mink Farm in Northumberland.

1.  The injunction in the civil proceedings

On 10 September 1997 a High Court interim injunction was obtained against the applicant (and others) under section 3 of the Protection from Harassment Act 1997 (“the Act”) by the plaintiffs to a civil claim against her, the Harrison family, who lived at the farm. The injunction was granted without the applicant having notice of the application, in her absence and prior to the issue of civil proceedings.

The Order restrained the applicant from pursuing a course of conduct which amounted to harassment of any of the plaintiffs including, in particular, communicating with them or coming onto their farm, the land immediately adjoining their farm or certain parts of a nearby public highway, whether for the purposes of protesting or otherwise. It provided:

“(1)  This Order prohibits you from doing the acts set out in this Order. You should read it carefully. You are advised to consult your solicitor as soon as possible. You have a right to ask the Court to vary or discharge this Order.

(2)  If you disobey this Order you may be found guilty of Contempt of Court and you may be sent to prison or fined and if fined your assets may be seized.”

It continued further as follows:

“VARIATION OR DISCHARGE OF THIS ORDER

The Defendant may apply to the Court at any time to vary or discharge this Order but if he wishes to do so he must first inform the Plaintiffs’ Solicitors in writing at least 24 hours beforehand.”

Thereafter the applicant states that she, acting in person, served a timely defence and a notice of application to have the injunction varied or discharged on both the High Court and the plaintiffs’ solicitors. She expected that the court would list the matter thereafter. No such listing and/or hearing had taken place prior to the applicant’s arrest for the criminal offence of harassment in March 1998. The applicant states that subsequent enquiries have revealed that the High Court did not have a copy of the application to vary or discharge the injunction on its file and that it appears that the document was lost either in the post or at the High Court office.

The magistrate in her criminal proceedings (see below) found as a fact that the applicant had served a timely defence on both the plaintiffs’ solicitors and on the court and had requested the removal of the injunction, but that she was still awaiting a reply and an opportunity to challenge the injunction at the time of her criminal trial.

2.  The criminal proceedings in the Magistrates’ court

In March 1998 the applicant was arrested and charged (along with two others) with a criminal offence under section 2 of the Act.  The information laid alleged as follows:

“Diane Selvanayagam, jointly with others between 20th July 1997 and 17th March 1998 at Corneyhaugh Mink Farm, Kirkley Hall, Northumberland pursued a course of conduct which amounted to harassment of Peter John Harrison, contrary to section 2 of the Protection from Harassment Act 1997.”

The applicant was tried by a stipendiary magistrate. Evidence was heard for eight days between 29 July and 25 September 1998. On 13 October 1998, the magistrate acquitted the applicant, holding that, while her course of conduct amounted to harassment and she knew or ought to have known that it did so, it was reasonable in the circumstances. Pursuant to section 1(3)(c) of the Act, it was a defence for the defendant to show that in the particular circumstances the pursuit of the course of conduct was reasonable. In considering whether to regard the applicant’s behaviour as reasonable, the magistrate balanced the “highly valued and protected” right to protest against the effect of the protests on the occupants of the farm. He continued:

“...there has been in the evidence no suggestion of violence and not more than the smallest hint of possible damage and abusive language.

Even in the case of the last two I am far from certain about the value of the evidence. What I have heard and been impressed by is that all of them [the Defendants], and Miss Selvanayagam in particular, have gone out of their way to avoid such behaviour and have indeed counselled others against it.

What all this amounts to is that I am satisfied that the purpose of the protest and the way in which these three pursued it was reasonable and I therefore dismiss all the charges against them.”

3.  The prosecution’s appeal to the Divisional Court

The Director of Public Prosecutions appealed by way of case stated to the Divisional Court of the Queen’s Bench Division. The Divisional Court was required to answer the following question:

“Whether as a matter of law the course of conduct pursued by the defendant Selvanayagam could have been deemed to be reasonable having regard to the fact that the course of conduct was in breach of the terms of the High Court injunction served on the defendant Selvanayagam on 10 September 1997.”

The Divisional Court answered the above question in the negative (R v. Director of Public Prosecutions, ex parte Moseley and others, 9 June 1999, case no. CO/664/99 [“ex parte Moseley”]). It considered that on the basis that the conduct in question did amount to harassment and was in breach of the injunction, it was not open to the applicant on the facts as found to establish that she had a defence of reasonableness within section 1(3)(c) of the Act. Mr Justice Collins stated that:

“...The injunction, if granted, must be obeyed, and unless and until it is set aside, it binds the party in question. It cannot be right for an individual to say to him or herself, that he or she will ignore the terms of the injunction because he or she believes that the conduct in question is reasonable.

The course that must be adopted is to apply to set the injunction aside. The judge will then decide whether the conduct is reasonable, or should be prevented. He will carry out the balancing exercise. But, as it seems to me, it is incumbent upon a magistrate, faced with an injunction, to accept that it means that the defendant is unable to discharge the burden placed upon him by the Act of establishing that the conduct was reasonable.

For my part, I find it quite impossible to accept that it can be reasonable to pursue a course of conduct in breach of an injunction which is designed to stop such conduct.”

In a concurring judgment, Lord Justice Roch stated:

“It is, in my opinion, to be presumed that the injunction, although ex parte and interim, has been obtained properly, and it is to be obeyed until it expires, or is set aside or varied by the High Court. A person who is aware that he or she is subject to an injunction, made by the High Court, and who can apply to set it aside or to vary it, cannot be conducting him or herself reasonably if he or she deliberately and without reasonable excuse breaks the terms of the injunction.

Miss Selvanayagam was in breach of the injunction in two respects. She was upon the road outside the farm ... and she on occasions trespassed on the Harrisons’ land.

The particular circumstances, against which the reasonableness of that course of conduct had to be measured, included the existence of the High Court order. There was no justification put forward by Miss Selvanayagam either before the stipendiary magistrate or before this Court, for her disobeying the order of the High Court ...

What is certain, in my judgment, is that conduct which flouts a High Court order cannot be reasonable unless there exists a wholly exceptional excuse for doing so, such as the instance put forward by Mr. Starmer during argument, that it is necessary to go into a prohibited area to rescue someone who is in imminent danger. Any other view could lead to inconsistent conclusions being reached by the magistrates’ court and the High Court; a most undesirable result.”

While not necessary for the determination of the point in issue, during the course of his judgment, Mr Justice Collins also referred to the additional defence that the applicant had run under section 1(3)(a) of the Act (that she had pursued her course of conduct for the purpose of preventing or detecting crime) and observed that:

“... I find it difficult to see how a protest of this sort, carried on over a lengthy period of time, could be said to have been pursued for the purpose of detecting or preventing crime. It is no crime to run a mink farm and as the magistrate found, there was never any evidence of breaches of any regulations covering the manner in which the minks had to be kept.”

The Divisional Court directed the magistrates’ court to proceed in the light of its judgment.

4.  Applicant’s application for leave to appeal to the House of Lords

The applicant thereafter applied to the Divisional Court for leave to present a petition of appeal to the House of Lords and for certification of the following point of law as one of general public importance:

“Whether conduct which is in breach of an injunction imposed in civil proceedings is capable of being reasonable under section 1(3)(c) of the Protection from Harassment Act 1997.”

On 19 July 1999, the Divisional Court certified the point of law as being one of general public importance. However, it refused the applicant’s application for leave to present a petition of appeal to the House of Lords.

On 6 October 1999, the applicant was granted legal aid to pursue a petition of appeal to the House of Lords. However, she was advised by both leading and junior counsel in conference on 21 October 1999, and in a subsequent written opinion by junior counsel on 5 November 1999, that her appeal had little prospect of success. Indeed, in that written opinion counsel stated that she was “quite certain that the House of Lords would not grant leave”. The applicant was then informed by her solicitors that her legal aid would be discharged, which occurred subsequently. The applicant thereafter instructed a new firm of solicitors on a pro bono basis to seek a further opinion from counsel regarding a potential appeal to the House of Lords. A further experienced barrister advised by telephone on 11 January 2000 that a petition to the House of Lords would be unlikely to be successful. She had, in fact, also previously received advice to the same effect on 10 June 1999 from the barrister who represented her in the Divisional Court. This avenue of appeal was therefore not pursued.

5.  Conviction and sentence of the applicant

On 2 September 1999, as a result of the judgment of the Divisional Court, the applicant was convicted by the stipendiary magistrate. She was sentenced to an absolute discharge and an indefinite restraining order under section 5 of the Act, which read as follows:

“1)  The Defendant is prohibited from assaulting, molesting, harassing, threatening, pestering or otherwise interfering with Mr. Peter John Harrison, his children or members of his family, Mrs. Alison Harrison, Mrs. Joan Gwendoline Harrison and Thomas Edward Harrison, by doing acts to cause them, their servants, agents, employees or customers harm whether directly or indirectly.

2)  The Defendant is prohibited from making any communication to Mr. Peter John Harrison, his family, servants, agents, employees or customers whether in writing or orally, whether by telephone or otherwise.

3)  The Defendant is prohibited from entering upon the land of Peter John Harrison at Corneyhaugh Mink Farm, Kirkley Hall, Northumberland, or travelling within half a mile thereof.”

6.  Appeals against conviction and sentence

On 29 October 1999, the applicant applied to the Crown Court for leave to appeal, out of time, against the magistrate’s decision to convict and sentence her. This application was rejected by the Crown Court on 13 January 2000.

On 12 April 2000, the applicant, acting in person, applied to the Divisional Court for permission to seek judicial review of the Crown Court’s decision. Permission was granted on 25 October 2000. At the full hearing on 26 February 2001, the Crown Court’s decision was quashed (R v. Newcastle Crown Court, ex parte Selvanayagam, 26 February 2001, case no. CO/1330/2000). Permission to appeal out of time was granted in relation to the applicant’s submissions concerning the defence which she had raised under section 1(3)(a) of the Act at the magistrates’ court trial, namely that she pursued her course of conduct for the purpose of preventing or detecting crime. She argued that it was her co-defendants who were primarily running the defence of reasonable conduct under section 1(3)(c) and that the magistrate effectively “rolled up” the defences that were being put forward under subsection (3) of section 1, without specifically differentiating between the evidence which was being put forward on behalf of her co-defendants and her own evidence.

The Divisional Court held that although the Divisional Court in ex parte Moseley had ruled that her reasonableness defence under section 1(3)(c) of the Act had been determined against her by the existence of the injunction, it was still open to the applicant to argue before the Crown Court that her actions were lawful under section 1(3)(a) of the Act. Lord Justice Latham stated:

“...the judge was wrong to conclude that the Divisional Court’s decision in any way precluded the applicant either as a matter of law from seeking to pursue her defence under section 1(3)(a), or in any way, insofar as he sought to do so, concluding that on the merits there was no basis upon which it could properly be said that there was material which could found such a defence.  The applicant had put before him arguments which indicated that she had been seeking to obtain evidence or other material which would affect the regulatory or prosecuting authorities based upon her assertion that criminal activity was taking place at the mink farm.  She may or may not, at the end of the day, on the facts be able to establish her case, because the burden of proof will be on her; and, in particular, she will have the difficulty, if she is to succeed, of having to establish that the purpose of her activities was for preventing or detecting crime...Those will be issues which are properly issues to be determined on the basis of proper conclusions on the facts after the hearing of evidence.  It seems to me that nothing that was decided by the Divisional Court can impinge upon the applicant’s right to have those issues properly so resolved.” ([2001] EWHC ADMIN 152 at paragraph 15)

Thereafter, the appeal in the Crown Court was listed for 2 July 2001. However, by letter of 25 June 2001 the applicant informed the Crown Court that she wished to abandon the appeal for medical reasons.

B.  Relevant domestic law

1.  The Protection from Harassment Act 1997

Section 1 of the Act creates a general prohibition on harassment as defined in that section, subject to certain exceptions, stating in its material part:

“(1)  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. ...

(3)  Subsection (1) does not apply to a course of conduct if the person who pursued it shows –

(a)  that it was pursued for the purpose of preventing or detecting crime, [or] ...

(c)  that in the particular circumstances the pursuit of the course of conduct was reasonable.”

Non-compliance with section 1 of the Act can give rise to criminal (section 2) and civil (section 3) liability.

2.  The offence of harassment

Section 2 of the Act states in its material part:

“(1)  A person who pursues a course of conduct in breach of section 1 is guilty of an offence.”

3.  Civil liability for harassment

Section 3 of the Act states in its material part:

“(1)  An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.”

The availability of a civil remedy enables injunctions to be granted during the course of civil proceedings. A civil cause of action must exist before an injunction can be granted.

The breach of any injunction can give rise to civil committal proceedings.  At any such proceedings the court has the power to commit a person who is found to be in breach of the injunction to prison.

Sections 3(3) to 3(9) of the Act make provision for the procedures that can be taken and the sanctions which can be imposed if a civil injunction is breached.  Its provisions, while drafted at the time of the commencement of the Act on 16 June 1997, only took effect as from 1 September 1998.  These provisions were therefore not in force at the time that the applicant was charged under section 2 of the Act.  The provisions read, in relevant part:

“(3)  Where –

(a)  in [civil] proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and

(b)  the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction,

the plaintiff may apply for the issue of a warrant for the arrest of the defendant.  ...

(5)  The judge or district judge to whom an application under subsection (3) is made may only issue a warrant if -

(a)  the application is substantiated on oath, and

(b)  the judge or district judge has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction.

(6)  Where –

(a)  the High Court or a county court grants an injunction for the purpose mentioned in subsection (3)(a), and

(b)  without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction,

he is guilty of an offence.”

4.  Restraining orders

Section 5 of the Act enables a court sentencing a person who commits a criminal offence under section 2 to impose a restraining order upon that person. This is an order prohibiting the defendant from doing anything which is set out in the order. By virtue of section 5(4), the prosecutor, the defendant or any other person mentioned in the order may apply to the court which made it for it to be varied or discharged by a further order.

Section 5(5) states:

“If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.”

By section 5(6), a person guilty of an offence under section 5(5) can be sentenced on conviction on indictment to imprisonment for a term of up to five years, or a fine, or both, or, on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.

5.  Common law

The Divisional Court in this case, ex parte Moseley, held, as set out in the above facts, that the course of conduct pursued by the applicant could not be deemed to be reasonable having regard to the fact that it was in breach of the terms of a High Court order.

COMPLAINTS

The applicant complains that the ex parte civil injunction of 10 September 1997 was allowed, as a result of the judgment in ex parte Moseley, to pre-determine a significant part of her defence in the criminal proceedings, in contravention of Article 6 §§ 1, 2 and 3(d) of the Convention. She complains that such a pre-determination also resulted in an unjustifiable interference with her rights under Articles 10 and 11 of the Convention. She complains, finally, that the restraining order which was imposed by the magistrates’ court as the sentence in her criminal proceedings was neither sufficiently certain in law, nor proportionate, thereby violating Articles 10 and 11 of the Convention.

THE LAW

The applicant complains under Article 6 §§ 1, 2 and 3(d) of the Convention that the judgment in ex parte Moseley allowed her defence of reasonable conduct in her criminal trial to be pre-determined against her because of the existence of an ex parte interim civil injunction. That injunction had been granted in her absence, at a private hearing of which she had not had notice, on the basis of affidavit evidence only and without the court having heard any evidence on her behalf. Those Articles read, in relevant part, as follows:

Article 6 § 1

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 6 § 2

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Article 6 § 3(d)

“Everyone charged with a criminal offence has the following minimum rights:

...

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.

The applicant also complains that the judgment in ex parte Moseley had the effect of permitting an unjustifiable interference with her rights under Articles 10 and 11 of the Convention. She further avers under those Articles that the restraining order which was imposed as the sentence in the criminal proceedings was neither proportionate nor sufficiently certain in law.

Article 10 reads, in relevant part, as follows:

“1.  Everyone has the right to freedom of expression. ...

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the prevention of disorder or crime, ... [or] for the protection of the ... rights of others ...”

Article 11 reads, in relevant part, as follows:

“1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others ...

2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others...”

A.  Exhaustion of domestic remedies

1.  The parties’ submissions

The Goverment submit that Article 35 § 1 of the Convention requires that normal use be made of remedies which relate to the breaches alleged and at the same time are available and sufficient. They aver that where there is doubt as to the prospects of success in a particular case it should be submitted to the domestic courts for resolution and to allow those courts the opportunity to develop existing rights by way of interpretation. They also submit that the requirement to exhaust local remedies includes the use of any procedural means which might prevent a breach of the Convention.

The Government submit that the applicant failed to exhaust her domestic remedies by failing to petition the House of Lords for permission to appeal the decision of the Divisional Court in ex parte Moseley in relation to section 1(3)(c) of the Act. They argue that counsel’s written advice did not explain why any such petition would have been bound to fail. As the Divisional Court had agreed that the matter raised a question of general public importance, the Government submit that the point was clearly arguable and should have been left to the House of Lords for resolution.

The Government also submit that the applicant failed to exhaust her domestic remedies by failing to pursue her appeal to the Crown Court under section 1(3)(a) of the Act. They submit that, had that appeal succeeded, her acquittal would have rendered any question of a violation of her Convention rights wholly academic. They argue that a successful appeal on this point would therefore have provided a sufficient remedy and that no proper explanation has been provided by the applicant for her failure to pursue this course.

In relation to her potential appeal of the decision in ex parte Moseley, the applicant points out that she received advice from four experienced counsel that as a matter of domestic law any appeal to the House of Lords would not be successful. She further avers that Article 35 of the Convention does not require an applicant to pursue remedies that have no reasonable prospect of success or which are contrary to settled legal opinion. She takes issue with the Government’s assertion that she should have pursued an appeal to the House of Lords notwithstanding the advice of counsel to the contrary and the anticipated withdrawal of legal funding.

In relation to her failure to pursue her appeal under section 1(3)(a) of the Act, the applicant states that she was suffering from a stress related illness and that it would have been unreasonable for the sake of her health to have proceeded with her appeal or to have sought a lengthy adjournment until she was well. She emphasises that her appeal to the Crown Court was very limited in nature, addressing only her defence under section 1(3)(a) of the Act that her purpose in protesting was to prevent or detect crime. She points out that she would not have been able to raise arguments under section 1(3)(c) of that Act in relation to the reasonableness of her conduct. As such, she submits that her appeal to the Crown Court would not have addressed the issues about which she complains under the Convention and should not therefore be seen as an adequate domestic remedy.

2.  The Court’s assessment

(a)  General principles

The Court recalls that Article 35 of the Convention only requires the exhaustion of such remedies as relate to the breaches of the Convention alleged and which at the same time can provide effective and sufficient redress. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time namely, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (See Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996–IV, p. 1211, §§ 66 and 68; and V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR-IX).

The Court recalls that the mere existence of doubts as to the prospects of success of a remedy does not absolve an applicant from exhausting it (see Akdivar and Others v. Turkey, cited above, § 71). However, applicants are not obliged to make use of remedies which, according to settled legal opinion existing at the relevant time, do not provide redress for their complaints (see, among other authorities, De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, p. 34, § 62; and K., F. and P. v. the United Kingdom, no. 10789/84, Commission decision of 11 October 1984, Decisions and Reports (DR) 40, p. 298). The Court further recalls that the Convention organs have held that in circumstances where an applicant is advised by counsel that an appeal offers no prospects of success, that appeal does not constitute an effective remedy (H v. the United Kingdom, no. 10000/82, Commission decision of 4 July 1983, DR 33, p. 247).

(b)  Application of the general principles to the facts of the present case

(i)  The applicant’s failure to petition the House of Lords

The Court recalls that, while the Divisional Court certified that the issue in ex parte Moseley raised a question of general public importance (such certification being a necessary pre-requisite before any application for permission to appeal can be made to the House of Lords), that court, at the same time, refused to grant permission to appeal. The Court cannot accept that certification in those circumstances demonstrates, in itself, that the applicant had a case which had reasonable prospects of success. Certification by the Divisional Court simply meant that it was open to the applicant to apply for permission to appeal from the House of Lords. It did not equate to a ruling that the applicant had reasonable prospects of actually being granted permission by the House of Lords. That was a separate issue, upon which the applicant took further advice. It is clear from the ruling of the Divisional Court that it did not regard it as appropriate for any such permission to be granted.

The Court further recalls that the applicant was advised by four separate counsel (three of whom advised after the case had been certified as raising a point of general public importance) that her application had no realistic prospect of success. Indeed, junior counsel stated in writing that she was “quite certain” that the House of Lords would not grant permission to present a petition of appeal. The Court takes judicial notice of the fact that three of the four counsel advising the applicant were senior and experienced specialists in the public law and human rights fields. In those circumstances, the Court has no hesitation in concluding that it was “settled legal opinion” that the applicant would not have succeeded in the House of Lords. As such, this was not a situation merely where doubts existed as to her prospects of success. She obtained independent and senior advice several times over that she would not succeed. As a result of that advice her legal aid was withdrawn.

In the above circumstances, the Government have not proved that the applicant failed to pursue an effective domestic remedy in failing to lodge a petition of appeal with the House of Lords.

(ii)  The applicant’s failure to pursue her appeal to the Crown Court

In relation to the applicant’s failure to pursue her appeal to the Crown Court concerning her defence under section 1(3)(a) of the Act, the Court notes that that defence was wholly unrelated to her complaints under the Convention. Even had she succeeded in her appeal regarding section 1(3)(a) of the Act, her Convention complaints would not have been addressed. The Court therefore finds that the Government has not proved that the applicant failed to exhaust a domestic remedy which related to the breaches of the Convention which she alleges and/or which could have provided her with effective and sufficient redress for her Convention complaints.

The Court observes that any admissibility question which could be argued to arise out of the applicant’s failure to pursue her appeal under section 1(3)(a) of the Act is better characterised as being one alleging that the applicant is not a victim for the purposes of Article 34 of the Convention. This would be on the basis that, had the applicant pursued that appeal and succeeded, it might have been arguable, at that stage, that she was no longer the victim of any Convention violation as her conviction would presumably have been quashed. However, the Court cannot find on the facts of this case that the applicant should lose her victim status in these circumstances. In reality, the applicant did not pursue her appeal under section 1(3)(a) of the Convention. The Court finds it too speculative to assert that the applicant would have won any such appeal had it been pursued. Indeed, the Court notes the doubts expressed by Mr Justice Collins in ex parte Moseley as to the applicant’s prospects of success in any such appeal and the difficulty noted by Lord Justice Latham during the course of his judgment in the Divisional Court on 26 February 2001 that the applicant would face in having to establish that the purpose of her activities was for the prevention or detection of crime (see the above facts).

In the above circumstances, the Court finds that the applicant’s application complies with the requirements set out in Article 35 § 1 of the Convention.

B.  Article 6 of the Convention

1.  The parties’ submissions

(a)  Article 6 § 1

The Government submit that the fact that a substantive issue (namely that the applicant’s course of conduct could not be deemed to be reasonable as it was in breach of a High Court injunction) was determined against the applicant, as a matter of law, in the criminal proceedings did not affect her procedural rights. They note that the applicant accepts that there cannot be any breach of Article 6 § 1 in relation to the civil ex parte interim injunction, as she had a full opportunity to apply to vary or discharge it and to be heard inter partes. They point out that no such application was ever, in fact, made. The injunction accordingly remained in force at all material times. They further point out that her criminal proceedings involved the submission of very detailed evidence and argument. She had the opportunity to be present, to be heard, to make representations and to give and to call evidence.

The applicant maintains that Article 6 of the Convention was violated by the pre-determination of her criminal defence under section 1(3)(c) of the Act against her due to her breach of the civil injunction. She submits that her inability to address the magistrate about the reasonableness of her conduct significantly affected her procedural rights. She points out that the majority of the evidence heard over eight days at the original criminal trial related to the issue of reasonableness and balancing the interests of the parties. The removal of that issue from the magistrate meant that the most important part of her defence in the criminal proceedings was neither decided by a criminal court, nor subjected to the protection of the criminal due process safeguards. Instead, the facts were determined in her absence by a civil court, not applying the criminal standard of proof and by reference to unchallengeable hearsay evidence.

The applicant further submits that, as a litigant in person, she did all that could reasonably have been expected of her to challenge the civil injunction. She points out that she did apply to set the injunction aside, but that the High Court did not list her application. She refers to the relevant civil rules of evidence to submit further that, even had a hearing to challenge the injunction been listed in the High Court, it could not have provided her with the criminal due process safeguards required by Article 6. In the civil courts, it was possible for hearsay evidence to be given. Equally, unlike in criminal proceedings, there was no right for a defendant to insist upon oral testimony or the attendance of witnesses. Whether such evidence was given would have been a matter for the court to decide. She also argues that she was entitled to conclude that the injunction was a matter of private civil law between the parties. As such, it was wrong to deprive her of the ability to raise the reasonableness of her conduct in the unrelated criminal proceedings.

(b)  Article 6 § 2

The Government submit that the presumption of innocence was respected. Notwithstanding the existence of the earlier injunction, no irrebuttable presumption arose as the prosecution remained obliged to prove that the applicant pursued a course of conduct that amounted to harassment, that she knew or ought to have known that the course of conduct amounted to harassment and, where the applicant raised the statutory defence under section 1(3)(c) of the Act, to prove that the course of conduct was not reasonable. In order to demonstrate the latter, the prosecution remained obliged to prove that the injunction had been deliberately breached. The Government submit that, as the applicant did not advance any explanation for her repeated breach of the injunction, the court was entitled to find the matter proved against her.

The Government further contend that, even if the effect of the Divisional Court ruling in ex parte Moseley was to introduce a presumption of law and/or fact, it was confined within reasonable limits. It properly took into account the importance of the need to obey injunctions, the needs of the defence who remained able to apply to have it set aside and the fact that ex parte injunctions are granted only where there are good reasons for so doing and where there is clear evidence in support.

The applicant contends that the judgment of the Divisional Court created an irrebuttable presumption of law that the conduct of the applicant could not be reasonable once it involved a breach of the injunction. It thereby denied her the opportunity of either challenging the prosecution evidence or of establishing her defence by presenting evidence to argue that she had acted reasonably. The applicant submits that the magistrate in the present case could not make his decision on the basis of the evidence adduced by the parties before him.

The applicant further submits that there were other methods available which could have ensured the compliance with the civil injunction. The High Court had a contempt of court jurisdiction to punish a failure to follow injunctions, which was never invoked. Also, section 3(6) of the Act created a specific offence of breach of an injunction. While not in force at the time of the applicant’s arrest, Parliament had enacted that an offence was only committed if the accused acted “without reasonable excuse”. The applicant emphasises that the issue at her trial was not whether she was in breach of the injunction, but whether she had committed a criminal offence under the Act. She submits that the breach of the injunction might have been relevant to the magistrate’s view as to whether she had acted reasonably, but that it was not necessary to introduce a presumption of law binding on the criminal court in order to secure respect for the order of the civil court. She relies on domestic authority to emphasise the different purposes served in domestic law between civil contempt proceedings, which relate to imposing sanctions upon those who breach the order of a court and criminal proceedings, undertaken for the protection of the public, which ensure that there is a proper sanction for those who break the law.

(c)  Article 6 § 3(d)

The Government submit that it had been open to the applicant to challenge the injunction in the High Court. Equally, in her criminal proceedings, she was entitled to challenge the evidence relied upon by the prosecution and to call evidence herself. They point out that she mounted a substantial challenge to the prosecution case that her conduct amounted to harassment under the Act and gave evidence. The Government argue that Article 6 § 3(d) leaves the competent national authorities to decide upon the relevance of proposed evidence in so far as is compatible with the concept of a fair trial. The ruling of the Divisional Court in ex parte Moseley to the effect that fresh evidence of reasonableness was legally irrelevant in the light of the existing High Court injunction did not give rise to any breach of Article 6 § 3(d).

The applicant re-iterates that the distinction that the Government attempt to draw between substantive and procedural rights is not sustainable in this case. She was unable to cross examine witnesses against her or call her own witnesses as to the reasonableness of her conduct as a result of the magistrate in the criminal proceedings being bound by the civil injunction. She maintains that there cannot be any true equality of arms if crucial matters are taken out of the hands of the criminal courts by way of pre-determination by the civil courts.

2.  The Court’s assessment

(a)  General principles

The role of the Court is to ascertain whether the proceedings considered as a whole were fair as required by Article 6 § 1 of the Convention. However, it is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among other authorities, Garcia Ruiz v. Spain, judgment of 21 January 1999, Reports 1999-I, pp. 98-99, § 28).

The Court recalls that, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce (see, among other authorities, Vidal v. Belgium, judgment of 25 March 1992, Series A no. 235-B, p. 14, § 33).

With specific reference to Article 6 § 2 of the Convention, the Court recalls that the Convention does not prohibit presumptions of fact or of law in principle. However, Article 6 § 2 of the Convention does not regard such presumptions provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence (see Salabiaku v. France, judgment of 7 October 1988, Series A no. 141-A, § 28).

The Court further recalls that the guarantees in paragraphs 2 and 3(d) of Article 6 of the Convention are specific aspects of the right to a fair trial set forth in paragraph 1 of that Article (see Barberà, Messegué and Jabardo v. Spain, judgment of 6 December 1988, Series A no. 146, § 67).

(b)  Application of the principles to the facts of the present case

(i)  Article 6 § 1

The applicant in the present case does not allege that the grant by the High Court of the ex parte civil injunction on 10 September 1997 violated any of her Convention rights. Indeed, the Court finds that she could not do so as she had the right to apply to have the injunction varied or discharged at an inter partes hearing. On the facts, no such hearing took place. Instead, the applicant’s complaint relates to the effect which the injunction had upon her subsequent criminal proceedings.

The Court recalls that the order of the High Court made clear to the applicant, on its face, that she was prohibited from doing the acts set out within it. She was also warned that, if she disobeyed its terms, she may, inter alia, be sent to prison or fined. She was further made expressly aware of her right to apply to the court at any time to vary or discharge the order. Nevertheless, the applicant chose to continue to engage in acts specifically prohibited by the order. She did so in the full knowledge that she had never obtained any variation or discharge of its terms.

The Court observes that had the applicant’s application to the High Court to vary or discharge the order been heard, she would, in principle, have had the opportunity to be present, to call her own witnesses, to cross examine witnesses against her and to have had a High Court judge assess all the evidence and balance the interests of the parties. In particular, the applicant would also have had the full opportunity to run her defence under section 1(3)(c) of the Act that her course of conduct was reasonable. That defence applied, regardless of whether the proceedings in question were civil or criminal. Had the judge agreed with her, that judge would have discharged the injunction and the applicant could have continued her protests lawfully. In those circumstances, the criminal proceedings which she later faced would never have arisen.

There was therefore a procedure in place for the applicant to use which would have allowed her to have challenged the order. She could also, naturally, have continued her protests in a manner which did not breach the specific terms of the High Court order until such time as her application to vary or discharge the order had been heard. However, the applicant chose to ignore both of the above two options and simply to disobey the terms of the injunction. By reference to the judgment in ex parte Moseley, it is clear that she never offered any excuse for her continued breach of the injunction in the domestic courts.

The Court has had regard to the applicant’s argument that she did all that could reasonably have been expected of her to attempt to set the injunction aside, as a litigant in person, by sending an application to the High Court to vary or discharge the order. The Court cannot accept this proposition. The applicant knew that the injunction against her was in force unless and until her application to set it aside had been heard and had succeeded. She also knew that no such hearing had taken place. There is no evidence that she ever took the simple step of enquiring of the High Court about what had happened to her application prior to continuing to act in breach of the injunction. Furthermore, while the applicant contends that she would not have had the right to insist, in civil proceedings, upon the court hearing oral testimony, which was a matter within the discretion of the court, there is equally no evidence that such testimony would not have been heard. In the light of the fact that no application to vary or discharge the injunction was ever heard, the Court is not prepared to speculate about how the High Court would have exercised its discretion in relation to the calling of evidence had such a hearing taken place.

The Court further recalls that the applicant’s defence of reasonable conduct under section 1(3)(c) of the Act was only one of the matters under consideration at her criminal trial upon which evidence was called. To establish that the offence of harassment had been committed, the prosecution had to prove, beyond reasonable doubt, both that the applicant’s course of conduct amounted to harassment of another (section 1(1)(a)) and that she knew or ought to have known that it did so (section 1(1)(b)). The magistrate found those elements of the case to have been established against the applicant by the prosecution. Furthermore, the Court recalls that it was a necessary precondition for the prosecution to prove that the applicant’s course of conduct was in breach of a High Court injunction, before it could negative the applicant’s defence under section 1(3)(c) of the Act. The magistrate was satisfied on the facts that the applicant’s conduct had been in breach of a High Court injunction. Each of the above factors was established only after a criminal trial at which the applicant had the full guarantees of Article 6 of the Convention.

In the above circumstances, the Court does not find that the applicant has suffered any procedural unfairness which could violate her rights under Article 6 § 1 of the Convention by reason of the Divisional Court’s judgment in ex parte Moseley that, as a matter of substantive law, her course of conduct could not be deemed to be reasonable in circumstances in which it was in breach of a High Court injunction.

(ii)  Article 6 § 2

The Court refers to the factors that the prosecution remained obliged to prove against the applicant notwithstanding the ruling in ex parte Moseley, which it has set out above. It further notes the importance of ensuring that properly obtained injunctions are obeyed. This is the case regardless of whether there was an alternative means of attempting to ensure compliance with the order, namely contempt of court proceedings commenced by Mr Harrison. The Court repeats its above reasoning that there was a procedure in place by which the applicant could have challenged the High Court injunction had she chosen to do so. It further takes into account that the High Court would only have granted the ex parte injunction had there been clear evidence, albeit in affidavit form, and good reason for so doing. As such, the Court concludes that any presumption of law that arose out of the judgment of the Divisional Court in ex parte Moseley was within reasonable limits, took account of the importance of what was at stake and maintained the rights of the defence.

In the above circumstances, the Court does not find that the effect of the judgment in ex parte Moseley could be regarded as having violated Article 6 § 2 of the Convention.

(iii)  Article 6 § 3(d)

The Court observes that once it had been established that the conduct of the applicant was in breach of the injunction and, following the decision in ex parte Moseley, that her conduct thereafter could not be deemed to be reasonable, the courts were entitled to conclude that evidence relating to the reasonableness of her conduct was irrelevant. In those circumstances, taken together with its reasoning in relation to Article 6 § 1 above, the Court cannot conclude that there has been any violation of Article 6 § 3(d) of the Convention.

(iv)  Conclusion

For the reasons expressed above, the Court finds that the applicant’s complaints under Article 6 §§ 1, 2 and 3(d) of the Convention must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

C.  Article 10 of the Convention

1.  The parties’ submissions

The Government accept that the criminal conviction amounted to an interference with the applicant’s right to freedom of expression within Article 10 § 1 of the Convention. They agree with the applicant that the interference was one that was prescribed by law and pursued the legitimate aims of the prevention of disorder or crime and/or the protection of the rights of others. They submit that the interference was also necessary under Article 10 § 2 of the Convention. They point out that the rationale of the judgment of the Divisional Court in ex parte Moseley was that the applicant’s course of conduct could not be deemed to be reasonable as she had knowingly, and without advancing any justification, breached a High Court injunction which she had not sought to have discharged. They argue that, at the time that the High Court granted the injunction, it would have been obliged to weigh the same considerations as those that the applicant contends were relevant to the proper exercise of the stipendiary magistrate’s judgment, namely the purpose and nature of the applicant’s conduct and the effect of that conduct upon the Harrison family. Therefore, the High Court injunction, together with a finding that it had been deliberately breached, was sufficient to provide a basis for a subsequent court to conclude that the restriction on the applicant’s right to freedom of expression was proportionate. The Government further refer to the margin of appreciation to be considered when resolving whether the restriction was necessary. They conclude that there was no violation of Article 10.

The Government disagree that the sentence imposed by the magistrates’ court was disproportionate. They submit that while the order was indefinite, the applicant had the right to apply at any time for its variation or discharge under section 5(4) of the Act. The Government further contend that the order contained clear objective criteria permitting the applicant to regulate her conduct. It contained an appropriate balance between clarity and flexibility to keep pace with changing circumstances. As such, it fulfilled the requirement of being prescribed by law.

The applicant asserts that her conviction and sentence constituted an interference with her freedom of expression. She contends that the decision of the Divisional Court in ex parte Moseley expressly prohibited the magistrate from performing a balancing exercise to assess whether that interference was proportionate. As such, the interference was not necessary in a democratic society. The applicant avers that, at her original criminal trial, the magistrate was satisfied that her conduct had been reasonable and carried out an appropriate balancing exercise which took into account the respective rights of the parties. She submits that there is no evidence that the High Court, at the time of granting the injunction, either considered her rights under Article 10 of the Convention or carried out any appropriate balancing exercise and that it was not under any obligation to do so. She repeats that the High Court granted the injunction only on the basis of written evidence, without hearing any evidence from her and without considering the merits of the case. She refers to domestic case law to aver that although a court is not precluded from considering the strength of each party’s case on an inter partes hearing for an injunction, it should rarely attempt to resolve difficult issues of fact or law and should only come to a view as to the strength of the parties’ cases if it was apparent from the affidavit evidence that the case of one party was much stronger than that of the other, which was not possible in the present case. The applicant also repeats the arguments that she sets out under Article 6 § 2 above, that there were other methods available to ensure her compliance with the civil injunction. She further repeats that the action that she took to try to have the injunction set aside was reasonable. The applicant also asserts that she was never specifically required to explain whether or why she had breached the injunction, as its breach was not an element of the offence with which she was charged.

The applicant argues that the restraining order was so imprecise so as not to be prescribed by law. She refers to the domestic case of R v. Andrew Mann (The Times Law Reports, 11 April 2000) to argue that a restraining order should name the persons in respect of whom protection is sought. The restraining order in her case covered a large number of unidentified people including “family, servants, agents, employees or customers”. She submits that it also was not sufficiently clear to enable the applicant to know what she had to do to avoid its breach. She therefore argues that the order was neither lawful, as it did not have a solid foundation in domestic law, nor proportionate.

2.  The Court’s assessment

The Court agrees with the parties that the applicant’s criminal conviction and sentence amounted to an interference with her right to freedom of expression within the meaning of Article 10 § 1 of the Convention and that the interference was both prescribed by law and pursued the legitimate aims of the prevention of disorder or crime and/or the protection of the rights of others.

The Court again recalls that the reason that the Divisional Court held in ex parte Moseley that the behaviour of the applicant could not be deemed to be reasonable under section 1(3)(c) of the Act was because her course of conduct had continued notwithstanding that it was in breach of a High Court injunction. The applicant so acted in the full knowledge that no application to vary or discharge that injunction had been heard, let alone granted, by the High Court. She had further offered no excuse to the domestic courts for her breach of the injunction. The Court further observes that, at the time of granting the ex parte injunction, the High Court was obliged to consider the affidavit evidence before it and to balance the interests of Mr Harrison against those of the applicant. There is no suggestion that the ex parte injunction was improperly obtained. The applicant had the opportunity of both challenging the injunction and ensuring that the balance of the respective interests of the parties was carried out at an inter partes hearing. However, it was her decision to continue her conduct in obvious breach of that injunction that ensured that she was arrested before any such hearing had taken place. The arguments that the applicant has raised about how the issues might have been considered at any such inter partes hearing are rendered speculative by the fact that no such hearing took place as a result of the applicant’s decision to continue to act in violation of the injunction.

In the above circumstances, the Court finds that the interference with the applicant’s rights under Article 10 § 1 of the Convention was necessary in a democratic society and constituted a proportionate response.

In relation to the restraining order that was imposed on the applicant, the Court notes that she had the right to apply for its variation or discharge under section 5(4) of the Act. There is no evidence that she has done so. In those circumstances, the Court does not find that it is open to her to apply to this Court about its terms.

Accordingly, the Court finds that the applicant’s complaints under Article 10 of the Convention must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

D.  Article 11 of the Convention

1.  The parties’ submissions

Both parties agreed that the arguments in relation to Article 11 were the same as those that they had submitted in relation to Article 10. They therefore referred to the arguments that they had raised under that Article.

2.  The Court’s assessment

The Court finds that the issues arising in relation to Article 11 are the same as those considered under Article 10 above. For the same reasons it finds that the complaint under Article 11 is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress 
 Registrar President

SELVANAYAGAM v. THE UNITED KINGDOM DECISION


SELVANAYAGAM v. THE UNITED KINGDOM DECISION