Preventing harassment of officers and members

Many local authorities find themselves to be the butt of extreme antipathy from one or more individuals directed at hapless members and officers. In times past, such wrathful thunderbolts were often launched through epic-length letters, frequently expansively handwritten in garish green ink. Nowadays, ease of electronic transmission enables multiple e-mails to be shot with the frenzied frequency of an artillery barrage. But while sometimes there might be some point to the anger which can be readily addressed and remedied, other such communications have no objectively reasonable cause for complaint and merely constitute a nuisance and unreasonable waste of council resources. 

Unfortunately some such messages are designed to be damaging and offensive to their recipients and made with the intention of causing alarm, upset and distress. Such was the situation before Darryl Allen QC, sitting as a deputy High Court judge on 22 September 2021 in Ashford Borough Council and Kerly v Fergus Wilson [2021] EWHC 2542 (QB). There, in the light of the Protection from Harassment Act 1997, Ashford Council sought a final anti-harassment injunction to protect its employees, officers, councillors and agents from a campaign of harassment and intimidation from the defendant local large-scale landlord. This followed an interim injunction made by the High Court on 27 July 2020 restraining the defendant from pursuing a course of conduct amounting to harassment under the 1997 act, that is (among other things) knowingly making any harassment communication to the chief executive (the second claimant, Tracey Kerly) and current and former officers, employees, councillors and agents of the council.

Background

The conduct as noted in the judgment comes across as extraordinary and egregious. Between February 2016 and July 2020, the council’s legal department recorded 454 pieces of correspondence from him. The judge’s findings of fact (at paragraphs 144-145) record, among other things, that the defendant had engaged in a campaign of repetitive, frequent, oppressive and offensive correspondence with the claimants. These ignored reasoned responses from the council. The defendant’s correspondence included: two suggestions that a councillor should commit suicide; numerous examples of personally offensive comments about appearance, weight, intelligence and capability; unfounded accusations of criminal conduct and professional misconduct; frequent hollow threats of reporting an individual to a regulator and of judicial review or other legal proceedings; and requests that councillors or employees should resign or be dismissed.

The law

By section 1(1) of the 1997 act a person must not pursue a course of conduct amounting to harassment of another and which the person knows or ought to know amounts to harassment of the other. Section 1A prohibits a course of conduct involving knowing harassment of two or more persons by which the harasser intends to persuade any person not to do something they are entitled or required to do, or to do something they are under no obligation to do. A person ‘ought to know … if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other’. By section 2 harassment under section 1 is a criminal offence and section 3 enables any actual or apprehended breach of section 1(1) to be subject of a claim in civil proceedings by the harassment victim. Section 3(6) creates criminal liability for injunction breach without reasonable excuse unless (per section 3(8)) the conduct has been punished as a contempt of court. Under section 7, harassing includes causing alarm or distress and a ‘course of conduct’ must involve in relation to a single person conduct on at least two occasions and in the case of two or more persons, conduct on at least one occasion in relation to each.

There is no statutory definition of harassment which, per Baroness Hale in Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34, ‘was left deliberately wide and open-ended’. Darryl Allen QC emphasised that for conduct to amount to harassment mere annoyance or irritation is insufficient since it must attain a certain level of severity. He consequently mentioned Lord Nicholls in Majrowski who said that: ‘…courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable’. And although conduct may begin with a legitimate inquiry, this ‘may become harassment within the meaning of s1 of the 1997 act by reason of the manner of its being pursued and its persistence…’ (see Pill LJ in DPP v Hardy [2008] EWHC 2874).

In Royal Institution of Chartered Surveyors and Another v Rushton [2017] EWCA Civ 1995, Lord Justice Lewison said: ‘There are many cases… in which speech not amounting to incitement of criminal conduct has been held to amount to harassment. Bombarding a former customer with gas bills and threats to cut off the supply, as in Ferguson v British Gas Ltd [2009] EWCA Civ 46, or bombarding an overdrawn bank customer with phone calls, as in Roberts v Bank of Scotland [2013] EWCA 882, are two examples.’ As to unfounded allegations against legal staff, Rix LJ in Iqbal v Dean Manson Solicitors [2011] IRLR 428 had said: ‘A professional man’s integrity is the lifeblood of his vocation. If it is deliberately and wrongly attacked, whether out of personal self-interest or malice, a potential claim lies under the [1997] act.’

In the circumstances the judge was satisfied that the interim injunction should be continued and converted to a permanent injunction. Any authorities experiencing serious apparent harassment of their officers and members will find the Ashford judgment to be a useful resource.

Nicholas Dobson writes on local authority, public law and governance