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Assessment of the Government's amendments to the Serious Organised Crime and Police Bill
Posted 1 March 2005
The following briefing has been prepared by Simon Dally, who has provided legal representation for animal rights protestors:
The most controversial aspect of the amendments is that they would criminalise 'torts' (that is to say, acts contrary to civil law and which can give rise to action in the civil courts). Tortious acts include trespass, libel, nuisance and the tort of 'interference with a lawful contract'. Someone held to have committed a tortious act can be required to pay damages, or comply with an Order (for example, not to trespass on land). Prison can follow only if the offender breaches the court Order.
Civil wrongs would become criminal offences
The amendments would turn tortious actions themselves into criminal offences, if they are carried out with the intention of hindering an animal research organisation or with the intention of persuading someone to sever their links with such an organisation. Both amendments are 'arrestable offences' by virtue of the fact that they are punishable on indictment by a maximum of five years imprisonment. This confers powers on the police to arrest and detain suspects for up to 36 hours and to search the dwellings of arrested persons for evidence.
The amendments thereby constitute a most serious assault on civil liberties, given the large number of torts that can be committed in the course of a non-violent protest. For example, a noisy demonstration outside a company's premises could amount to the tort of 'private nuisance' and of trespass. Handing out an 'offensive' leaflet could be held to be defamatory and, thereby, amount to an additional civil wrong. Consumer boycotts are also caught by the terms of the amendments, as these could potentially amount to the tort of 'interference with a lawful contract'. All of these acts - which are not currently against the criminal law - would become punishable by up to five years' imprisonment if done with the intention of harming an animal research organisation.
Incompatible with Human Rights law
The amendments are probably not compatible with the European Convention on Human Rights, which regards the freedoms of expression (Article 10) and of association (Article 11) as particularly important. The High Court of England and Wales has held that the right to freedom of expression includes the right to impart ideas that others may find offensive or objectionable. This approach has been upheld on many occasions by the European Court of Human Rights, which regards freedom of expression under Article 10 as one of the essential foundations of a democratic society. The domestic and European Courts have also consistently maintained that any interference by the state with the rights to freedom of expression and assembly must be no greater than is necessary to protect the rights of others. These principles have clearly not been applied to the new amendments, under which - as indicated above - one could be sent to prison for five years simply for handing out a leaflet. The threat of such a punitive sanction would be enough to deter people from attending the most peaceful of protests or even writing polite letters of complaint.
Additionally, the amendments are discriminatory and contrary to Article 14 of the Convention. They impose restrictions on the rights of anti-vivisection campaigners to express their views to others, whilst the rights of all other protest groups are unaffected. For example, a letter written by an anti-war protestor to an arms dealer asking the dealer not to supply a company that sells weapons to Iran would not be an offence under the new law. By contrast, an animal rights campaigner writing a similar letter asking a company not to supply animals to a particular animal research organisation would potentially commit an offence. If such activity is unlawful, it must be unlawful for everyone and not just for those who hold politically sensitive views.
All areas of protest could be covered
The proposed new measures, the government argues, are essential for controlling animal rights extremists. Once the proposals become law, however, recent history indicates that they will be used as widely as possible. With anti-social behaviour Orders, the initial target was youths on housing estates. Now these Orders are being used far more widely. Equally, the justification for proposed new internment powers was the threat presented by Muslim extremists - but the law is drafted widely enough to cover any UK citizen. The Protection from Harassment Act 1997 was principally intended to protect women from stalkers, and yet since its introduction it has been used extensively against protestors.
The police are already complaining that the proposed SOCP Bill measures are not drafted widely enough; that they should cover all areas of protest. The amendments can, in fact, be extended by Order of the Secretary of State under Clause 146 to other forms of protest activity with the minimum of Parliamentary scrutiny.
The first of the proposed new laws is defined as follows:
'Interference with contractual relationships so as to harm an animal research organisation.'
(1) A person (A) commits an offence if, with the intention of harming an animal research organisation, he
(a) does a relevant act, or
(b) threatens that he or somebody else will do a relevant act, in circumstances in which that act or threat is intended or likely to cause a second person (B) to take any of the steps in subsection (2).
(2) The steps are-
(a) not to perform any contractual obligation owed by B to a third person (whether or not such non-performance amounts to a breach of contract);
(b) to terminate any contract B has with C;
(c) not to enter into a contract with C.
(3) For the purposes of this section, a 'relevant act' is-
(a) an act amounting to a criminal offence, or
(b) a tortious act causing B to suffer loss or damage of any description.
(4) For the purposes of this section, 'contract' includes any other arrangement (and 'contractual' is to be read accordingly).
(5) For the purposes of this section, to 'harm' an animal research
(a) to cause the organisation to suffer loss or damage of any description, or
(b) to prevent or hinder the carrying out by the organisation of any of its activities.
(6) This section does not apply to any act done wholly or mainly in contemplation or furtherance of a trade dispute.
(7) In subsection (6) 'trade dispute' has the same meaning as in Part 4 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), except that section 218 of that Act shall be read as if -
(a) it made provision corresponding to section 244(4) of that Act, and
(b) in subsection (5), the definition of 'worker' included any person falling within paragraph (b) of the definition of 'worker' in section 244(5).
Clearly, the proposed new measure is directed at any campaign activity that invokes the time-honoured weapons of the consumer or shareholder boycott. Thus, for example, if a campaign group publishes on its website details of a company that supplies services or goods to an animal research laboratory using, for instance, beagle dogs in lethal poisoning tests for a new fungicide; and if that campaign group asks website visitors to write polite letters to the supplier asking it to cease trading with the research lab, then the campaign group principals are liable to be charged with a criminal offence.
FIRST: The prosecution would have to show that the intention behind publishing the details on the website was to harm an animal research organisation. 'Harm' is defined at subparagraph (5) as causing it loss or damage of any description, OR preventing or hindering the carrying out by the organisation of any of its activities. This is extremely wide and would cover the situation in the example above. The intention behind the website article is clearly to persuade the company to stop supplying services to the animal research laboratory, thereby hindering it and causing it loss.
SECOND: The prosecution would also have to demonstrate that the accused had done or threatened a 'relevant act' - which is defined as any criminal act or any 'tortious' act causing the second person (i.e. the lab supplier) to suffer loss or damage.
Here, the tort of 'interfering with a lawful contract' is especially relevant. This tort can be committed if a person persuades someone to break their contract with someone else. Even an entirely peaceful protest against a supplier or customer could become a criminal offence under this amendment as the aim of such protest would be to persuade the customer or supplier to terminate their contract with the animal research organisation.
Other tortious acts could include handing out defamatory leaflets, noise nuisance (for example, the use of drums or megaphones on a demonstration), and trespass.
The 'tort' must also cause the second party (the lab supplier) to suffer loss or damage of any description. Thus, if the supplier has to employ extra security measures as a result of the website publication or a subsequent demonstration, then this part of the offence would be satisfied.
A 'relevant act' is also defined as any act amounting to a criminal offence. So, if someone simply speaks on a megaphone during the course of a protest, or shouts something offensive, they could be committing an offence under the proposed law punishable by up to five years.
THIRD: The act must, additionally, be intended or likely to cause the third person (namely, the lab supplier) not to perform a contractual obligation owed to a third party - or to terminate any such contract or not to enter into one. This part of the offence would, therefore, be complete if a court were satisfied that the act was likely to have this effect, even if this were not the intention behind it.
To take another example, handing out a leaflet to someone asking them not to buy products produced by a certain company because that company tests on animals could become a criminal offence under this amendment. The law would be applied as follows.
a. The activity is intended to cause loss to the animal research
b. The activity is potentially tortious - for example, by interfering with a lawful contract, or by being defamatory
c. The activity causes loss to the person it is handed to, as that person does not buy the product as a result of receiving the leaflet.
d. The activity is intended to cause the recipient not to enter into a contract with any other third party (i.e. by not buying the product).
Thus, consumer boycott campaigns will become an offence in English law.
The second of the proposed new laws against animal rights protestors is as follows:
'Intimidation of persons connected with an animal research organisation.'
(1) A person (A) commits an offence if, with the intention of causing a second person (B) to abstain from doing something which B is entitled to do (or to do something which B is entitled to abstain from doing)-
(a) A threatens B that A or somebody else will do a relevant act, and
(b) A does so wholly or mainly because B is a person falling within subsection (2).
(2) A person falls within this subsection if he is-
(a) an employee or officer of an animal research organisation;
(b) a student at an educational establishment that is an animal research organisation;
(c) a lessor or licensor of any premises occupied by an animal research organisation;
(d) a person with a financial interest in an animal research organisation;
(e) a customer or supplier of an animal research organisation;
(f) a person who is contemplating becoming someone within paragraph (c) (d) or (e);
(g) a person who is, or is contemplating becoming, a customer or supplier of someone within paragraph (c) (d), (e) or (f);
(h) an employee or officer of someone within paragraph (c) (d), (e), (f) or (g);
(i) a person with a financial interest in someone within paragraph (c) (d), (e), (f) or (g);
(j) a spouse, civil partner, friend or relative of, or a person who is known personally to, someone within any of paragraphs (a) to (i);
(k) a person who is, or is contemplating becoming, a customer or supplier of someone within paragraph (a), (b), (h), (i) or (j); or
(l) an employer of someone within paragraph (j).
(3) For the purposes of this section an 'officer' of an animal research organisation or a person includes-
(a) where the organisation or person is a body corporate, a director, manager or secretary
(b) where the organisation or person is a charity, a charity trustee (within the meaning of the Charities Act 1993);
(c) where the organisation or person is a partnership, a partner.
(4) For the purposes of this section-
(a) a person is a customer or supplier of another person if he purchases goods, services or facilities from, or (as the case may be) supplies goods, services or facilities to, that other; and
(b) 'supplier' includes a person who supplies services in pursuance of any enactment that requires or authorises such services to be provided.
(5) For the purposes of this section, a 'relevant act' is-
(a) an act amounting to a criminal offence, or
(b) a tortious act causing B or another person to suffer loss or damage of any description.
(6) The Secretary of State may by order amend this section so as to include within subsection (2) any description of persons framed by reference to their connection with-
(a) an animal research organisation, or
(b) any description of persons for the time being mentioned in that subsection.
(7) This section does not apply to any act done wholly or mainly in contemplation or furtherance of a trade dispute.
(8) In subsection (7) 'trade dispute' has the meaning given by section 142(7).
FIRST: The first ingredient of this offence is that a person must threaten another person that they will do a relevant act. A relevant act is defined - as with Section 142 - as any crime or any tortious act which causes another person to suffer damage or loss of any description.
SECOND: This threat must be carried out because the person against whom the threat is made falls in to one of the categories defined in para (2). These categories include various people who are connected in some way to animal research organisations, even if they are not directly related. For example, it includes suppliers to customers of an animal research laboratory.
THIRD: The threat must be carried out with the intention of causing the person to whom the threat is made to abstain from doing something which that person is entitled to do.
This clause appears to be aimed at situations where a company or individual are told that they will become the subject of a protest if they continue to do business with an animal research organisation. There are overlaps with the first new offence, but it appears to be aimed at situations where someone has a connection with an animal research laboratory, but no contractual relationship exists. The clause is also clearly aimed at preventing protest against employees or directors of animal research organisations.
The intention must be to cause someone not to do something they are entitled to do (rather than to cause harm to an animal research organisation). There is no need to show in this case that the act is intended or likely to interfere with a lawful contract. It need only be shown that the tort or crime has been committed because of the person's connection with the animal research organisation.
Again, the new offence is drafted extremely widely. A person who simply writes to a customer of an animal research organisation stating that they intend to hold peaceful demonstrations against them would potentially commit an offence. The letter would amount to a 'threat' to commit a tortious act (namely interfering with a lawful contract), and it would be carried out because the recipient was a customer of an animal research organisation. The intention behind the letter would clearly be to cause the customer to do an act which it is entitled to abstain from doing - namely withdrawing its business from the animal research organisation, or registering its disapproval of such research. The offence would therefore be committed by a person engaged in an entirely peaceful form of protest.
The Home Office has stated that the amendments are not designed to stop peaceful protest, and yet it seems that even the most peaceful of demonstrations and publications against companies connected with the animal research industry will be outlawed.