Information Note on the Court’s case-law 48

December 2002

Selvanayagam v. the United Kingdom (dec.) - 57981/00

Decision 12.12.2002 [Section III]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Refusal to allow plea of defence of reasonable conduct, on account of breach of injunction: inadmissible

Article 10

Article 10-1

Freedom of expression

Injunction restraining from demonstrating over animal welfa re: inadmissible

Article 11

Article 11-1

Freedom of peaceful assembly

Injunction restraining from demonstrating over animal welfare: inadmissible

Facts : The applicant was a participant in peaceful protests outside a mink farm. In September 1997, the High Court granted an injunction to the farm owners, prior to the issue of civil proceedings and in the absence of the applicant, restraining the applicant f rom harassing them by, inter alia , communicating with them or approaching the farm. The injunction order specifically informed the applicant that she could apply to the High Court at any time to vary or discharge the order. The applicant states that she se rved in time her defence and a notice of application to have the injunction varied or discharged on both the High Court and the farm owners’ solicitors. However, no listing or hearing of her application had taken place prior to the applicant’s arrest for t he offence of harassment in March 1998.  Subsequent enquiries revealed that the High Court was not in possession of the application filed by the applicant. In March 1998, the applicant was arrested and charged with the criminal offence of harassment under the Protection from Harassment Act 1997. At her trial, the magistrate found as a fact that the applicant had requested the removal of the injunction and was still awaiting an opportunity to challenge the injunction by the time of her trial. The applicant’s conduct was found to be reasonable within the meaning of the Act and she was acquitted on that basis. The prosecution appealed to the Divisional Court, which held that behaviour which breached an injunction could not be considered reasonable for the purpo se of the 1997 Act. Leave to appeal was refused. The applicant was advised by counsel that there was no prospect of the House of Lords allowing a petition of appeal and did not pursue the matter. In September 1999, following the Divisional Court’s directio n to the Magistrates’ Court that it was to proceed in the light of its judgment, the applicant was convicted by the magistrate. A restraining order was imposed, which orderedher, inter alia , not to communicate with, harass or interfere with the farm owners or their staff or customers. The applicant sought leave to appeal, which was refused by the Crown Court as she was out of time. She succeeded in obtaining judicial review of this decision and was granted permission to appeal against her conviction on the basis that her defence had not been fully considered. She had sought to rely on another ground permitted under the 1997 Act, namely that her actions were for the purpose of preventing or de tecting crime. Arrangements were made to hear her appeal in the Crown Court in July 2001, but the applicant decided at the end of June to abandon the appeal for medical reasons.

Inadmissible under Article 6 § 1: The applicant’s complaint related not to the granting of the injunction against her in 1997 but to its effect on her in subsequent criminal proceedings. The Court observed that the applicant chose to continue to engage in acts that were specifically prohibited in the injunction although she knew tha t she had never obtained any variation or discharge of its terms. Had her application to vary or discharge the injunction been heard in the High Court, it would have been open to her to argue that her behaviour was reasonable as this defence applied to bot h criminal and civil proceedings. Had she succeeded at this stage, criminal proceedings would never have come about. Alternatively, she could have continued her protests in a manner that was not incompatible with the injunction. The applicant had not done all that a reasonable person would have done to seek to have the injunction varied or discharged. She had merely filed her application with the High Court and there was no evidence to indicate that she had  made any further enquiry about it. Her contention that, had there been a hearing before the High Court, she may not have been able to call oral testimony was no more than speculation. Moreover, at her trial, which had been in accordance with the requirements of Article 6, the prosecution had had to prove beyond reasonable doubt that the offence of harassment had been committed and that the applicant’s behaviour breached the injunction. Accordingly, the Divisional Court’s  ruling that the defence of reasonable conduct was not open to her in circumstances w here she had breached an injunction did not cause her to suffer any procedural unfairness: manifestly ill-founded.

Inadmissible under Article 6 § 2: The applicant had been presumed innocent until the prosecution proved beyond reasonable doubt that she had committed the offence of harassment. The Court stressed the importance of compliance with properly obtained injunctions. It had been open to the applicant to challenge the injunction before the High Court. Any presumption of law that arose out of the Divis ional Court’s ruling regarding the defence of reasonable conduct was within reasonable limits, took account of the importance of what was at stake and maintained the rights of the defence: manifestly ill-founded.

Inadmissible under Article 6 § 3 (d): On fo ot of the Divisional Court ruling that the defence of reasonable conduct was not open to the applicant, the trial court was entitled to treat any evidence relating to this defence as irrelevant: manifestly ill-founded.

Inadmissible under Articles 10 and 11 : There was an interference with the applicant’s freedom of expression and freedom of assembly, which was prescribed by law and pursued a legitimate aim. The interference was also necessary in a democratic society and not disproportionate. The applicant ha d knowingly breached a properly obtained injunction instead of challenging it before the High Court. She had offered no excuse to the national courts for breaching the injunction: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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