Full case report

Kerner v (1) WX and (2) YZ

Reference [2015] EWHC 128 (QB)
Court High Court (Queen’s Bench Division)

Judge Warby J

Date of Judgment 27 Jan 2015


Summary

Harassment – Injunction – Section 12 HRA – Freedom of expression – Practice Guidance


Facts

C’s husband was convicted of two offences of sexual activity with a child in breach of trust and was given an 18-month suspended sentence. About a week after the sentence, C and her son, aged 9, were leaving their home when two men jumped out of cars parked opposite the house and engaged in aggressively taking photographs of them. C asked the photographers to leave but one of them remained outside the house taking photos through the front bedroom window. C then took a sign outside her house quoting the Editors’ Code of Practice and asking the photographers to desist from harassing her and her son. The photographer who remained took photographs of her, the sign and her son. He eventually left after being there for about an hour and a half. C was unable to identify the two photographers.

C sought an injunction on behalf of herself and her son on the basis of apprehended harassment, restraining (1) harassment by photography or videoing of C or her son (or their vehicle or premises), loitering within 100m from their home, or knowingly pursuing either of them; and (2) harassment by publishing any material identifying C or her son.


Issue

  1. Should an injunction be granted restraining harassment by photography, loitering within 100m of C’s home, and pursuing either C or her son?
  2. Should an injunction be granted restraining publication of C or her son’s personal details or photographs?

Held

1.    The first limb of the injunction sought would be granted. Section 12(2) HRA was satisfied in respect of the first limb in that all practicable steps had been taken to notify the intended Ds. There was no way that they could have been traced and notified in the available time. There was a real risk of a repeat of the conduct by the Ds, and C was more likely than not to obtain relief against the Ds at trial.

2.    The relief sought under the second limb of the proposed injunction would not be granted. It was clear that C intended to serve news and media publishers with any order, but none had been forewarned of the application, nor was there any suggestion that attempts had been made to do so. Further, the evidence fell far short of showing that harassment from publication was likely to occur, and the form of order was far too broad.


Comment

A useful reminder of (1) the ability to seek an injunction for apprehended harassment, (2) the need to follow the Master of the Rolls’ Practice Guidance [2012] 1 WLR 1003 and base the order sought on the Model Order, and (3) the need to address s. 12 HRA when dealing with any order which may have an impact on the D’s freedom of expression.


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Instructing Solicitors

Richard Slade and Associates for C; No appearance for the Defendant.