By Ashley Young-
A British journalist’s right to freedom of expression was violated by an arrest on a harrasment charge, the European Court of Human Rights (ECtHR) has ruled in a judgement .
In a case between Pal v the United Kingdom , seven ECtHR judges found that a police force and two English courts failed to carry out a balancing exercise between the rights of privacy and freedom of expression over the arrest of journalist Rita Pal under suspicion of offences under the 1997 Protection from Harassment Act.
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The Harassment Act 1997 makes it an offence to pursue a course of conduct that causes alarm or distress to a person, and whose conduct would be interpreted as resulting in such alarm or distress by a reasonable man. The act of harassment must occur two or more times.
The applicant isn this case was a former psychiatrist who became a journalist concentrating on whistleblowing issues within organisations such as the National Health Service.
. According to court documents, in June 2011, the applicant became involved in a dispute with AB, a barrister and journalist who worked for “Private Eye” and who was linked to Patients’
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The dispute led to a series of email allegations and counter-allegations between the two parties.
After a complaint by AB about the applicant’s conduct to the Commissioner of Police for the Metropolis (“the Metropolitan Police”),
Prevention Of Harassment Letter
In July, a Prevention of Harassment Letter (“PHL”) was served on the applicant.
The prevention of Harassment letter, informed the recipient that an allegation has been made against them and warned them of the possible consequences of continuing to act in the way
Chief amongst the allegations against her was to stop sending the complainant emails as he was feeling harassed by their content. She was notified that if she committed “any act or acts either directly or indirectly that amount to harassment” ,she might be liable to arrest and prosecution.
Pal, who specialised in covering whistleblowing issues within the NHS, became involved in a dispute with ‘AB’, a barrister and journalist for Private Eye magazine. AB is understood to be Andrew Bousfield of Furnival Chambers, called in 2004, and a key figure in the health whistleblowing campaign organisation Patients First.
‘The dispute led to a series of email allegations and counter-allegations between the two parties,’ the judgment states. In 2014, Pal published on her website an article about AB, with links to material apparently casting the barrister in a bad light. AB made a statement to police about the ‘acute anxiety’ caused by Pal’s behaviour over several years.
Pal was arrested on suspicion of harassment contrary to s2 of the Protection of Harassment Act.
She was later detained for seven hours before being bailed subject to conditions. Hewas charged in January 2015, but seven months later the Crown Prosecution Service served a notice of discontinuance on the basis of insufficient evidence.
The county court dismissed a claim against the Metropolitan Police for, among other things, assault, false imprisonment and a breach of article 10 of the ECHR. An appeal to the High Court was also dismissed, finding that the county court judge was correct in ruling that, as the arrest was lawful, article 10 was not breached. Permission to appeal to the Court of Appeal was refused.
European Court of Human Rights
In her case to the Strasbourg court, Pal complained that the manner in which her arrest was carried out, and the conditions of bail imposed upon her, breached her article 10 rights. She was represented pro bono by Aaron Rathmell of Serjeants’ Inn Chambers.
The UK governmentdisputed the claim, arguing that neither the arrest nor the charge interfered with Pal’s article 10 rights.
The Strasbourg judges noted that the police log did not provide any basis for the urgency for Pal’s arrest. While the interference with her article 10 rights was allowable in that it was ‘prescribed by law’, the test of whether it was ‘necessary in a democratic society’ depended on whether it corresponded to a ‘pressing social need’.
.Overall, it has not been established that the police or the domestic courts balanced AB’s article 8 rights with Pal’s article 10 rights, the judgment states.
It declared the claim admissible and awarded Pal damages and expenses totalling €3,900, against a claim totalling €49,786. Both sides have three months within which they can ask for the case to be referred to the Grand Chamber of the ECtHR for a final ruling.
Arrest
In December 2014, the Metropolitan Police arrested the applicant in Birmingham on suspicion of harassment, contrary to section 2 of the Protection from Harassment Act 1997 (“the . She was driven approximately 185 kilometres to London, as attempts to secure custody facilities in the West Midlands had been unsuccessful, and interviewed under caution with her solicitor present. The applicant declined to answer questions, save to provide a prepared statement.
. The applicant was detained for approximately seven hours before being bailed, subject to conditions, to re-attend the police station on 22 January 2015. The conditions imposed included that she not contact AB directly or indirectly by any means whatsoever, and that she not post any messages on any form of media relating to AB either inferred or by direct reference. On 22 January 2015 the applicant was charged with an offence of harassment contrary to section 2 of the 1997 Act (see paragraph 32 below).
The pre-charge decision contained two significant errors. First of all, it indicated that both the applicant and Ad previously been issued with First Instance Harassment Warnings. The applicant had been issued with a PHL
Course Of Conduct
Court documents stated that the alleged course of conduct appeared to have been “sustained and frequent with, as is stated, up to twenty emails per day on occasion”. The Government have accepted that this was not correct, as the charge concerned only the article and Tweets described in paragraphs 8 and 10 above. Under the heading “ECHR”, the pre-charge decision stated “No issues: the facts of the case suggest that a criminal prosecution is necessary and proportionate”.
On 3 March 2015, the applicant appeared at a Magistrates’ Court and entered a plea of not guilty. The Magistrates renewed the applicant’s bail on the same conditions as those described in paragraph 13 above.
. In August 2015 the Crown Prosecution Service (“CPS”) served a notice of discontinuance on the basis that there was insufficient evidence to establish a realistic prospect of a conviction under the 1997 Act.
According to the CPS file review, the article published by the applicant was “an informative piece” which was “derived simply from other information within the public domain” and was “presented by a journalist with a view to present facts than [sic] that must be permitted with freedom of speech rights under art 10”.
Tweets
The CPS further considered that the Tweets, which did not mention AB by name, could not amount to harassment. It therefore concluded that there had been “no harassment”. Having regard to Article 10 case-law, the CPS was not satisfied that the documents involved contained material that would justify restricting the applicant’s Article 10 rights. In their view the material “was not unreasonable nor oppressive nor is it material that is so grossly offensive that it would require restriction”.
On 8 August 2015 the prosecution was therefore determined in the applicant’s favour, and an award of costs, including an amount in respect of her legal costs, was made in her favour from central funds.
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