Birmingham City Council “anti-protest” injunction, some legal issues – Hugh Tomlinson QC

On Friday 31 May 2019, the Vacation Judge, Moulder J granted Birmingham City Council a without notice injunction [pdf] to restrain “persons unknown” from organising protests against the teaching of equalities outside Anderton Park Primary School and making “offensive or abusive comments” on social media.

The application was made after several weeks of protest against LGBT teaching outside the pimary school The Council said that it decided to make the application “in the light of increasing fears for the safety and wellbeing of the staff, children and parents of the school” when they return from the half term break on Monday 3 June 2019.

The problems for parents and children caused by the demonstrations are obvious and there are clearly strong arguments in favour of some form of injunctive relief. The injunction has been welcomed by politicians including the local MP and the Education Secretary, Damian Hinds.

Nevertheless, when defendants are unpopular it is of particular importance to ensure that appropriate legal safeguards are observed.  The circumstance of the obtaining of the injunction and its terms give rise to a number of legal issues. These have discussed by a number of commentators on Twitter, see in particular this thread from @Greg_Callus.

It should be noted the injunction order which has been published applies only to “Persons Unknown”, the first three named defendants “are covered by their own injunctions” which do not appear to be publicly available.

An injunction can be granted against “Persons Unknown” provided the requirements set out by the Court of Appeal in the recent case of Boyd v Ineos Upstream Ltd & Ors ([2019] EWCA Civ 515) are met, namely

1) there must be a sufficiently real and imminent risk of a tort being committed to justify quia timet relief;

2) it is impossible to name the persons who are likely to commit the tort unless restrained;

3) it is possible to give effective notice of the injunction and for the method of such notice to be set out in the order;

4) the terms of the injunction must correspond to the threatened tort and not be so wide that they prohibit lawful conduct;

5) the terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do; and

6) the injunction should have clear geographical and temporal limits. [34]

In this case, in contrast to the usual practice, the category of “Persons Unknown” is not stated on the face of the order however it appears that requirements (1) to (3) and (6) were satisfied. I will consider requirements (4) and (5) below after considering two procedural mattters.

Without Notice Application

First, the order was made “without notice”.  In general this procedure will only be justified in cases of extreme urgency. The Courts have repeatedly pointed out that notice is a matter of “elementary” justice and that, if it is not given, CPR 25.3(3) and PD 25A para 4.3 require the service of evidence stating the reasons why notice has not been given.  This requirement is reinforced in case (such as this one) where freedom of expression may be affected, by section 12(2) of the Human Rights Act 1998.  The need for strict compliance with these requirements has been repeatedly emphasised in the case law (see the 2012 Inforrm post, Practice: Without notice injunction procedure – a further warning for practitioners).

It is not clear what evidence was put before Moulder J on this issue.  It is obvious from the Council’s statements that they have been aware of the problem since, at the very latest, Friday 24 May 2019 when it is said there was a “serious escalation of the protests”.

The order is not directed at any named defendant so there are obvious difficulties in giving notice to the “Persons Unknown”.  However, Schedule 2 contains provisions for service of the order including by placing public notices in newspapers and on the Council’s website.  It is difficult to see why the same methods could not have been employed in relation to service of the application.

If and insofar as the individual defendants were dealt with at the same hearing it is not clear whether they were given notice of the application and, if not, why not.

In contrast to the “Model Interim Non-Disclosure Order” in the Master of the Rolls’ Practice Guidance [pdf] the order does not recite the Court’s reasons for making the order without notice.

Section 12(3) of the Human Rights Act 1998

Second, the injunction is plainly one which affects the Convention right to freedom of expression.  As a result, no relief should have been granted unless the Court was satisfied that Council was likely to establish at trial that publicaiton should not be allowed (Human Rights Act 1998, section 12(3)).

Once again, there is no indication on the face of the order that section 12(3) was considered.  Instead, it is recited that the Court found that it was “just and convenient and proportionate” to grant injunctive relief.  This is not the appropriate test in a case in which Article 10 rights are engaged.

Terms of the Order

Paragraph 1(a) of the order deals with the organisation, participation in or encouragement of protests in an identified area for the “Protection of Public Rights” under section 130 of the Highways Act 1980.  Although the order is in very wide ranging terms (and includes a power of arrest) the intensity and adverse impact of the protests appear to require an order of this kind.

Paragraph 1(b) is more difficult.  It provides that the “Persons Unknown” shall not

“use any social media account to make offensive or abusive comments about any member or members of staff at the School in relation to the teaching of equalities at the schoool or in relation to their evidence in these proceedings”.

As “Persons Unknown” are not defined this provision applies “contra mundum” – that is, to the whole world.

It is not clear what the “threatened tort” is in this case.  It is, perhaps, harassment of members of staff with Birmingham City Council making the application under section 3A of the Protection from Harassment Act 1997.  The basis for such an order is not clear.  It must have been made on evidence that that there was a real risk that any member of the public would harass members of staff of the school by making “offensive or abusive comments” in relation to the teaching of equalities, or their evidence in the proceedings.

Terms such as “offensive” and “abusive” are notoriously unclear but the order provides no guidance as to what members of the public are entitled to say about the teaching of equalities at the school.  Bearing in mind the breadth of the order more clarity would have been useful.

Conclusion

It appears that the order which Birmingham City Council was necessary to prevent protestors at the school engaging in unlawful conduct towards members of staff.  Nevertheless, the order is in extremely wide terms and it is difficult to see why it was made without notice.  It contains a contra mundum restriction on freedom of expression in circumstances in which it is unclear whether the Court was directed to the requirements of section 12 of the Human Rights Act 1998.  It will be interesting to see whether there is an application to discharge or how the matter is dealt with on 10 June 2019 when it comes back before the Court.

Hugh Tomlinson QC is a member of the Matrix Chambers media and information practice group.