Human Rights – Freedom of expression – Protesters

The wife and children of Omar Othman v The English National Resistance and others: Queen's Bench Division: 25 February 2013

Section 12 of the Human Rights Act 1998, so far as material, provides: '(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression ... (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed'.

The claimants were the wife and children of, and residing with, OO, better known as Abu Qatada. Two of the five children were aged under 16. In November 2012, OO had been released from custody and bailed under bail conditions to reside with his family in North London. Since December 2012, the claimants had been subjected to a sustained campaign of protests directly outside their home (the property) by individuals apparently affiliated with the defendant organisations, which had patriotic aims.

Such protests had involved, amongst other things, demonstrators knocking on the door of the property and often using megaphones so that the youngest children had been subjected to abuse such as 'all Muslims are terrorists'. There was also evidence that demonstrators would stop passers by and tell them that terrorists lived in the property. The claimants obtained two interim injunctions (the injunctions): (i) an order preventing the defendants from harassing the claimants within 500m of the property (the harassment order); and (ii) an order restraining the defendants from disclosing personal matters in relation to the claimants (the non-disclosure order), including their names, residential address, images of them or the address of any school attended by them (the information). The claimants applied to continue the injunctions.

The issues for determination were: (i) whether the harassment order should be continued; and (ii) whether the non-disclosure order should be continued. The claimants submitted, amongst other things, that, whilst the demonstrations took place, the claimants were effectively prisoners in their own home. The first, second and fifth defendants opposed the continuation of the injunctions on grounds including that: (i) the protests were entirely lawful; and (ii) the protestors were funding the residence of the claimants and had a fundamental right to protest. They relied, in particular, on articles 9, 10 and 11 of the European Convention on Human Rights (the articles). Consideration was given to the Protection from Harassment Act 1997 (the 1997 act) and section 12(3) of the Human Rights Act 1998 (the 1998 act). The applications would be allowed.

(1) Each of the articles had to be considered in light of the reservations in the second part of each article. The defendants were unable to rely on article 9 of the Convention due to what was stated in the second paragraph of it. Freedom of thought, conscience and religion was awarded subject to limitations provided by law, for example, in the 1997 act. In relation to article 10 of the Convention, the court was satisfied that the threshold set in section 12(3) of the 1998 act would be likely to be reached. Accordingly, the harassment order would be made.

(2) Applying established principles, the information was protected by article 8 of the Convention. As to the question of whether that article 8 right should yield to the right to freedom of expression as granted by article 10, the court was satisfied that the exception in article 10 in relation to the protection of the rights of others was overwhelming and that the balancing exercise leaned towards the non-disclosure order which was being sought. The harassment and non-disclosure orders would be made. McKennitt v Ash [2006] All ER (D) 200 (Dec) applied; Green Corns Ltd v Claverley Group Ltd [2005] All ER (D) 269 (May) considered; Murray v Express Newspapers plc [2008] All ER (D) 70 (May) considered.

Lorna Skinner (instructed by Bindmans LLP) for the claimants; The first and second and fifth defendants appeared by their representative.