Crown Prosecution Service - Decision to prosecute - Judicial review of decision - Claimant being harassed by F - Restraining order being issued against F

R (on the application of Waxman) v Crown Prosecution Service: QBD (Admin) (Lord Justice Moore-Bick): 2 February 2012

The claimant met F when she was at college. F developed an obsession with the claimant and over a number of years he subjected her to serious and persistent harassment.

In December 2005, F was convicted of harassing the claimant. In February 2006, a restraining order was made against him under section 5 of the Protection from Harassment Act 1997, which prohibited him from ‘molesting, harassing or otherwise interfering with or contacting directly or indirectly’ the claimant or various members of her family and from ‘retrieving or storing any information in any media or form whatsoever’ relating to them. F was also ordered to pay compensation in the sum of £3,500.

In August 2006, F issued proceedings in the county court against the claimant claiming £3,500, being ‘… a substantial amount of money which was awarded to the [claimant] as compensation at a previous case’. That claim was struck out as having no prospect of success. F continued to harass the claimant and, in March 2007, he was prosecuted for breach of the restraining order. In November 2010, F again issued proceedings against the claimant in the county court. In February 2011, that claim was struck out and a civil restraint order was made prohibiting F from issuing any further claim without leave from a judge.

Meanwhile, at the instigation of the defendant Crown Prosecution Service, F was charged on an indictment containing two counts alleging a further breach of the restraining order. Count 1 charged him with causing a communication to be made with the claimant by way of service of the proceedings on her. Count 2 charged him with retrieving information relating to the claimant in the form of the documentation on which he relied in support of his claim. In January 2011, the question arose as to whether F had a constitutional right to bring proceedings in the civil courts and therefore whether any attempt to prevent him from doing so would infringe his rights both at common law and under article 6 of the European Convention on Human Rights.

As a result, the hearing was adjourned and the defendant took advice from counsel. In February 2011, in the light of that advice, the claimant was informed that a decision had been taken not to pursue the prosecution. Two reasons were given for that decision: the first was that the restraining order could be read as restricting F’s right to bring proceedings in the civil courts; the second was that since the material on which the second charge was based mentioned F as well as the claimant and was in his possession for the purposes of preparing his claim, the court would not hold him to be in breach of the restraining order by retrieving and storing it. The claimant applied for judicial review of that decision.

The claimant submitted that the restraining order had not contained an absolute prohibition on access to the courts because there was no absolute right at common law or under article 6 of the convention to commence vexatious and abusive proceedings and because, in any event, it was open to F to ask the court to vary the order to allow him to start proceedings if there were reasonable grounds for doing so. The state had a duty under article 8 of the convention to protect the claimant’s physical and moral integrity and that the failure of the defendant to pursue prosecution of F involved a failure in its duty to her. Further, the claimant also sought an award of damages under section 8 of the Human Rights Act 1998 for unlawful interference with her rights under article 8 of the convention. The application would be allowed.

It was established law that the right of access to the courts was a fundamental right at common law, but it was not a right that had ever been regarded as absolute. Further, under article 6 of the convention it was recognised that the right to a fair and public hearing was not an absolute right and was subject to restrictions necessary to achieve legitimate social objectives. The prevention of persistent harassment of the kind in which F had engaged was a legitimate social objective that was capable of justifying a restriction on F’s rights under article 6 of the convention (see [11], [12] of the judgment).

In the instant case, a distinction could properly be drawn between commencing legal proceedings in order to pursue a bona fide claim, and commencing wholly unmeritorious proceedings for the sole purpose of causing vexation, anxiety and annoyance. In respect of the second charge against F, the essential question was whether the restraining order involved a disproportionate interference with F’s rights. On the facts, it had not. The restraining order had been reasonable and necessary to protect the claimant’s rights and had not involved a disproportionate interference with F’s rights. There had been evidence from which a jury might well have inferred that the proceedings were brought as part of F’s campaign of harassment.

Accordingly, the defendant had been incorrect to think that the prosecution had been bound to fail. In respect of the claim for damages, the state had owed the claimant a duty to take proper measures to protect her and was in breach of its duty in failing to pursue the prosecution and the claimant was entitled to an award of damages in respect of the alarm and distress caused by the failure of the defendant to pursue the prosecution (see [14], [16], [19], [20], [24], [25] of the judgment).

A declaration that the decision of the defendant had been unlawful would be made and the claimant would be awarded £3,500 (see [25] of the judgment).

Ian Wise QC and Stephen Broach (instructed by Scott-Moncrieff and Associates) for the claimant; Louis Mably (instructed by the Crown Prosecution Service) for the defendant.