Edo Technology Ltd ("Edo") & Anor v Campaign To Smash Edo & Ors

Factual and Procedural Background

The first claimant, Company A, is a domestically incorporated entity operating a factory in The City where it designs and manufactures weapons and related equipment. This equipment is sold to the governments of The State and another foreign state, with allegations by the defendants that it is also sold to a third foreign government. The second claimant is the managing director of Company A and acts on behalf of the employees pursuant to procedural rules, collectively referred to as the second claimants.

The second claimants allege that the defendants, through protest campaigns involving themselves and other activists, have engaged in conduct amounting to harassment under the Protection From Harassment Act 1997 ("PHA 1997"). Proceedings were initiated seeking an injunction to restrain future conduct deemed to constitute harassment. The claimants assert that the defendants' actions constitute a course of conduct amounting to unlawful harassment and that without restraint, such harassment is likely to continue.

Company A does not seek relief in its own right under the PHA 1997, as the Act does not confer rights of action on companies. The claim under the PHA 1997 is brought on behalf of the second claimants (employees).

The trial was scheduled for a 10-day hearing commencing 21 November 2005. Prior to trial, certain preliminary legal issues were identified for resolution. An interim injunction was granted previously, with its permanency to be decided at trial.

Legal Issues Presented

1. Are matters of United Kingdom foreign policy and the deployment of the UK's armed forces under the Royal Prerogative justiciable in these proceedings?
2. Does the defendants' composite defence disclose the commission of offences contrary to section 51 of the International Criminal Court Act 2001?
3. Irrespective of the above, does the defence disclose conduct ancillary to an offence under section 51 capable of constituting an offence contrary to section 52 of the Act?
4. Is there sufficient nexus between the defendants' admitted conduct and their assertion that they acted to prevent crimes by the claimants?
5. On the facts set out in the defence, is the defendants' conduct capable of falling within the terms of section 1(3)(a) and/or 1(3)(c) of the PHA 1997, and does the alleged crime need to be immediate or imminent?

Arguments of the Parties

Defendants' Arguments

• They deny that their conduct amounts to harassment under the PHA 1997, either individually or collectively, and argue that liability for acts of others must be determined at trial.
• They contend that if any course of conduct is proven, it was reasonable under section 1(3)(c) of the PHA 1997, invoking freedom of expression and legitimate protest rights.
• They rely on section 1(3)(a) as a defence, asserting their conduct was pursued for the purpose of preventing crime, specifically crimes under domestic law including the Geneva Conventions Act 1957 and the International Criminal Court Act 2001.
• The defendants argue that the crime of aggression is not established as a domestic crime and therefore cannot be relied upon under section 1(3)(a).
• They submit that the prevention of crime under section 1(3)(a) does not require the crime to be committed by the claimants themselves, nor that the crime be immediate or imminent, although this latter point was contested by other parties.
• The defendants emphasize that their protest campaign is long-term and preventative in nature, not aimed at stopping immediate crimes.

Claimants' Arguments

• The claimants maintain that the defendants' conduct constitutes harassment and that the defences under section 1(3)(a) and (c) of the PHA 1997 do not apply.
• They argue that the crime of aggression is not recognized as a domestic offence and that the defendants cannot rely on it.
• The claimants contend that the prevention of crime defence requires a specific and imminent crime and that long-term protest campaigns do not satisfy this requirement.
• They submit that the defendants' conduct is not reasonable and that the balance must be struck to protect the claimants from harassment without unjustifiably infringing freedom of expression.
• They raise concerns about potential liability under the International Criminal Court Act 2001 for accessories, noting that the claimants do not control the use of their products by alleged criminal principals.
• The claimants argue that issues relating to foreign policy and armed forces deployment are not justiciable in these proceedings.

Attorney General's Arguments

• Supported an objective interpretation of section 1(3)(a) of the PHA 1997, emphasizing the protective purpose of the Act.
• Submitted that the prevention of crime defence must be proportionate and limited to specific and imminent crimes to avoid misuse.
• Highlighted that restrictions on freedom of expression must be narrowly construed and justified under Article 10 of the European Convention on Human Rights.
• Expressed agreement with the ruling that the crime of aggression is not established in domestic law for the purposes of the case.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Colohan [2001] EWCA (Crim) 1251	Interpretation of section 1(3)(c) of the PHA 1997; objective test of reasonableness for conduct defence.	Confirmed that the test under section 1(3)(c) is fully objective and that defendant's personal characteristics should not affect the reasonableness assessment.
Percy v Director of Public Prosecutions [2001] EWHC Admin 1125	Balancing freedom of expression under Article 10 ECHR with restrictions under the Public Order Act 1986.	Provided guidance on striking a balance between legitimate protest and protection from insulting or distressing conduct, relevant to assessing reasonableness under PHA 1997.
Brutus v Cozens [1973] AC 854	Limits on prohibiting disrespectful or contemptuous behaviour; peaceful protest not outlawed.	Referenced to support the principle that peaceful protest, even if offensive, is protected unless it crosses into threatening or abusive conduct.
Monsanto plc v Tilly [1999] TLR 829	Defence of necessity in tort law (trespass).	Noted as irrelevant to the issue of reasonableness under section 1(3)(a) of the PHA 1997.
Southwark London Borough Council v Williams [1971] Ch 374	Interpretation of reasonableness in statutory provisions.	Used to illustrate that reasonableness should not be interpreted so broadly as to permit unlawful conduct under the guise of justification.
R v Jones [2004] 3 WLR 1362	Non-recognition of crime of aggression as domestic offence.	Applied to conclude that the crime of aggression is not established in domestic law for PHA 1997 section 1(3)(a) purposes.

Court's Reasoning and Analysis

The court began by examining the statutory framework of the Protection From Harassment Act 1997, focusing on the definitions of harassment, course of conduct, and the defences available under section 1(3). It highlighted the distinction between the subjective and objective elements within the statute.

Regarding section 1(3)(c), the court confirmed that the defence is governed by an objective test of reasonableness, as established in R v Colohan. The court emphasized that the defendant's personal characteristics are not relevant to this test, which must balance the right to freedom of expression with protection from harassment.

Drawing on Percy v Director of Public Prosecutions, the court acknowledged the need to protect peaceful protest under Article 10 of the European Convention on Human Rights, while also recognizing that conduct crossing into threatening or abusive behaviour may be restrained.

On section 1(3)(a), the court found that the defence is primarily subjective, requiring the defendant to intend to prevent or detect a crime. The court rejected the argument that an objective reasonableness test applies to this subsection, noting the deliberate statutory structure distinguishing it from subsection (c).

The court held that for section 1(3)(a) to apply, the crime to be prevented must be specific, identifiable, and immediate or imminent. It rejected the defendants' argument that long-term prevention of crime falls within this defence, emphasizing that the defence cannot be expansively construed to cover speculative or distant future crimes.

The court addressed the issue of whether the crime to be prevented must be committed by the claimant, concluding that section 1(3)(a) extends to preventing crimes by others, provided there is a sufficient nexus between the defendant’s conduct and the crime.

On the preliminary issues, the court ruled that the crime of aggression is not recognized as a domestic crime and thus cannot support the defence under section 1(3)(a). Consequently, matters of foreign policy and royal prerogative related to armed forces deployment were deemed not justiciable in this context.

The court concluded that the defendants' composite defence does not satisfy the requirements of section 1(3)(a), leaving the first and second heads of defence (harassment denial and reasonableness under section 1(3)(c)) to be resolved at trial. The court refrained from making any factual findings on the reasonableness of the defendants' conduct or liability.

Holding and Implications

The court held that the defendants' reliance on section 1(3)(a) of the Protection From Harassment Act 1997 fails as the facts and matters set out in their defence do not meet the statutory requirements. Specifically, the defence requires a subjective intention to prevent a specific, immediate or imminent crime, which the defendants' long-term protest campaign does not satisfy.

The claim proceeds to trial on the first and second heads of defence.

The decision has the direct effect of limiting the defendants' ability to rely on the prevention of crime defence under section 1(3)(a) in this case. No broader precedent was established regarding the balancing of freedom of expression and harassment beyond confirming the applicable legal tests and the non-justiciability of certain foreign policy matters.