Freedom of expression not freedom to harass – Amber Melville-Brown

17 10 2013

602141834Rutland. The smallest English county. Right in the middle of the country. Indeed, Middle England proper. And now, the most recent bastion, apparently, of free speech. In a recent decision reported in The Rutland Times, District Judge Temperley has put Leicester Magistrates Court on the map of free speech … in a case concerning harassment.

The paper reports a case in which the Defendant, Martin Brookes, a former Oakham town councillor, was found not guilty of harassing and stalking a Rutland County Council councillor and its chief executive. The Defendant had it says, repeatedly e-mailed and blogged about the Chief Executive, casting aspersions on her professional role and integrity, and had telephoned and texted the councillor, all in order to ascertain who in turn, had been attacking him on a website anonymously set up by the Councillor.

(Read on JK Rowling, I feel a sequel to The Casual Vacancy coming on.)

Finding that he was at his wit’s end (the Defendant that is, not the judge, despite the fact that the trial took five days) District Judge Temperley found the Defendant not guilty of the offences of harassment and stalking, concluding, ‘Freedom of expression is an essential function of a democratic society. It is applicable also to those who offend and shock’. He accepted that the Defendant was ‘right to confront if he thought she [the CEO] was not doing her job well’ – hmn, sounds more like an honest opinion / public interest defence to a libel claim to me – and that while the comment was ‘harsh, shocking and personally offensive’ that did not make it criminal.

Ah, criminal, there’s the rub. Harassment can be both a criminal offence and give rise to a civil complaint, by virtue of the Protection from Harassment Act 1997. A victim faced with what appears to be a course of conduct – so, just two instances or more – which amounts to harassment, giving rise to alarm or distress, can choose which path down which to proceed, applying to the civil court for remedies including, , an application for an interim injunction and damages, or alternatively making a complaint to the police.

There are pros and cons of going down either avenue. The pro for the victim in complaining to the police, is that he or she puts the matter into the hands of the boys in blue, reducing the legal costs that he or she will be likely to pay; the con is that… he or she puts the matter into the hands of the boys in blue, effectively, losing control. Choosing the civil route may require the victim of the harassment to pay the legal fees of specialist lawyers with the expertise to assist- and of course, with appropriate expert counsel – but the victim and his or her legal team remain in control. And where the evidence is strong, an interim injunction may swiftly be obtained to stop the perpetrator in his or her tracks. A claimant may also desire damages.

The threshold of seriousness of the activities will be the same in both the civil and criminal courts, but the astute among our readers will be aware that there is a different burden of proof in criminal and civil cases. While the civil courts require a case to be made out on the balance of probabilities, a criminal charge must be proven beyond all reasonable doubt.

Here, one might imagine that there had been enough to constitute a course of conduct which the victims considered to be harassing of them. But the Defendant was found not guilty of the criminal charge, does not therefore have a criminal record as a result and certainly has not faced the potential ultimate sanction, a term at Her Majesty’s Pleasure. With freedom of expression added into the mix – presumably courtesy of the Human Rights Act which must be taken into account by our judges – the judge here was clearly able to find that the criminal standard had not been reached, and so exonerated the Defendant.

Freedom of speech is a vital and valuable benefit in a democratic society, and we should be proud of our track record in defending it. But not unfairly at the expense of the rights of others. So while the media is frothing at the mouth after having its Royal Charter on press regulation confined to the Privy Council bin, we should keep a wary eye that they don’t seek to take advantage of this ruling, lobbying for it to spill over into the civil courts, enabling anyone harassing a third party through inappropriate blogs, offensive publications and invasive photographs to argue that not only has a criminal offence not been committed but that such conduct is permissible in civil law – no matter the distress caused – as an exercise of freedom of expression.

Amber Melville-Brown is a partner at Withersworldwide specialising in reputation management.


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