Factual and Procedural Background
The Appellant, aged 37, pleaded guilty on 29th June 2004 at Leicester Crown Court to harassment contrary to section 2 of the Protection from Harassment Act 1997, as well as offences under the Computer Misuse Act 1990 and perverting the course of justice. Following bail conditions prohibiting internet access, the Appellant reoffended and pleaded guilty to further offences on a second indictment in December 2004. On 28th January of the following year, the Appellant was sentenced to a two-year community rehabilitation order concurrent on each count and made subject to an indefinite restraining order under section 5 of the Protection from Harassment Act 1997, prohibiting contact with the complainant, his fiancée, and others, and forbidding publication of information concerning them. The Appellant appealed, limiting the appeal to the terms of the restraining order.
The harassment originated from a personal relationship between the Appellant and the complainant, who were former colleagues and had a one-night stand in July 2001. The Appellant, mistakenly believing she contracted chlamydia from the complainant, engaged in a sustained campaign of harassment from February 2003 to February 2004. This included sending misleading emails, creating defamatory websites, sabotaging the complainant's email accounts, and involving computer hackers. The Appellant was arrested and her devices examined, revealing payments to hackers and participation in revenge forums. Despite bail conditions, the Appellant continued to engage in harassment.
The sentencing judge noted the Appellant had served 23 weeks on remand and emphasized the restraining order's purpose to prevent recurrence of the conduct. The restraining order prohibited direct or indirect contact with specified individuals and banned publishing any information, true or false, about them indefinitely. The Appellant had no prior court appearances, and several psychological and psychiatric reports were considered during sentencing.
Legal Issues Presented
- Whether the terms of the restraining order under section 5 of the Protection from Harassment Act 1997, particularly the indefinite prohibition on publishing any information (true or false) about the complainant and his fiancée, are lawful and proportionate.
- How the fundamental right to freedom of expression under Article 10 of the European Convention on Human Rights interacts with restraining orders restricting publication of information.
- The appropriate principles and safeguards to be applied when courts impose restraining orders under section 5 of the 1997 Act.
Arguments of the Parties
Appellant's Arguments
- The restraining order is overly broad and infringes on the fundamental right to freedom of expression, including the right to publish truthful information.
- Relied on Article 10 of the European Convention on Human Rights, citing Handyside v United Kingdom (1976) EHRR 737 to emphasize the essential nature of freedom of expression, even for offensive or disturbing information.
- Argued that the law does not permit a blanket ban on publishing the truth and that such a ban would undermine democratic principles.
- Submitted that preventing publication of truthful information is unnecessary for the effectiveness of the restraining order.
Prosecution's Arguments
- The terms of the restraining order are no wider than necessary to protect the complainant and his fiancée from a long-term campaign of harassment.
- The order only prohibits conduct without reasonable excuse, balancing the Appellant's freedom of expression against the complainant's rights, including Article 8 rights to private and family life.
- Publishing truthful information can amount to harassment if it invades privacy or causes distress, such as revealing personal details.
- The complainant and his fiancée are private individuals with no public profile, justifying the restrictions.
- The Appellant has no legitimate need to publish information about the complainant and protected persons, and reasonable excuses can be raised to avoid breach.
- The restriction is minor compared to the significant protection afforded to the victims.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Handyside v United Kingdom (1976) EHRR 737 |
Freedom of expression as an essential foundation of democratic society, including protection for offensive or disturbing information. |
Referenced by the Appellant to argue against a blanket ban on publishing truthful information; court acknowledged but balanced against harassment prevention. |
| Oberschlick v Austria (1975) 25 EHRR 375 |
Limits on freedom of expression must be proportionate and necessary. |
Used to frame the proportionality analysis of the restraining order's terms. |
| De Haes v Belgium (1997) 25 EHRR 1 |
Protection of reputation and rights of others as a legitimate aim for restricting expression. |
Supported the court's view that restrictions can be justified to protect private individuals from harassment. |
| R v Robert Beck (28 July 2003) |
Restraining orders should be clear, precise, and framed practically, considering proportionality. |
Cited for principles guiding the drafting and scope of restraining orders under section 5. |
| Shayler (2003) 1 AC 247 |
Restrictions on free speech must be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society. |
Supported the three-part test applied by the court in assessing the restraining order's validity. |
Court's Reasoning and Analysis
The court began by outlining the statutory framework under section 5 of the Protection from Harassment Act 1997, which permits courts to impose restraining orders to protect victims from further harassment or fear of violence. The court set out key principles: restraining orders must have a protective purpose, be drafted clearly and precisely, be framed practically, consider proportionality, and allow for variation or discharge.
Regarding Article 10 of the European Convention on Human Rights, the court acknowledged the qualified nature of the right to freedom of expression, which may be restricted for legitimate aims such as preventing crime and protecting others' rights. The court applied the three-part test requiring restrictions to be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society.
In the exceptional circumstances of this case, the court found the wide terms of the restraining order justified. The Appellant's conduct demonstrated an inability to distinguish truth from falsehood and a propensity to harass the complainant and his fiancée through publication of information, whether true or false. The court reasoned that allowing the Appellant to publish any information could facilitate new forms of harassment, including truthful statements that would still cause distress.
After consultation with counsel, the court concluded the restraining order was lawful, proportionate, necessary, and prescribed by law. The court emphasized the availability of the mechanism to vary or discharge the order if justified in the future.
Holding and Implications
The appeal against the restraining order was DISMISSED.
The court upheld the indefinite restraining order prohibiting the Appellant from contacting the complainant, his fiancée, and others, and from publishing any information concerning them, whether true or false. The decision directly protects the victims from further harassment and does not establish new precedent beyond affirming the application of existing principles concerning restraining orders and freedom of expression. The Appellant retains the right to seek variation or discharge of the order if circumstances change.