Misuse of an act designed to stop stalkers

Heathrow Airport Ltd applied for a wide-ranging injunction which, had they succeeded, could have banned five million people from the Piccadilly Line, large sections of the M4 and land surrounding Heathrow as well as the airport itself. It would have done so by making them subject to the provisions of the Protection from Harassment Act 1997.

The Act was originally brought in to tackle the problem of stalkers. Under the Act repeated harassing behaviour of an individual can be prohibited by an injunction with a power of arrest. Breach of the injunction is also a criminal offence, punishable with up to five years imprisonment.

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More recently, the Act has been used to tackle harassing behaviour by animal rights activists. A number of such orders, many granted after a one-sided argument when the defendant was not present or represented, have stretched the meaning of the Act's provisions and its reach to unrepresented protesters.

The process used in this case followed that pattern. Without notice to anyone, Heathrow applied for and was granted an Order that four individuals should represent groups and their members and supporters. This encompassed organisations such as the RSPB and the World development Movement. They were also granted an order that Heathrow could represent all the airport users and service providers. This included Transport for London and the London Underground, who had not been notified, let alone consulted, about the injunction.

The court made an order which upheld Heathrow's private property rights, but rejected both the claim in harassment and the attempt to stretch a court order to thousands of unrepresented individuals. Key points emerged which it is hoped will prevent a harassment injunction being used as a legal sledgehammer.

The judgment made clear that the Harassment Act will not normally apply to peaceful demonstrations. Harassment is a strong word and a serious accusation.

For that reason, where a claimant applies for what is in effect an order to prevent a protest, the standard required by the evidence is high and akin to a criminal standard of proof.

Wide-ranging representative orders catching groups and their members should not be made unless there is evidence of shared unlawful purpose amongst the members.

And the judge recognised that climate change and the links to airport expansion involve a serious question. Communication and peaceful non-trespassory assembly remain an important part of UK public life. This important recognition of a pillar of democratic life might help to turn the tide of opinion against measures which have criminalised peaceful assembly.

Kate Harrison is a solicitor who represented environmental groups at the BAA injunction hearings