New protection for businesses from animal rights extremists

According to the July 2004 Government paper 'Animal Welfare – Human Rights: protecting people from animal rights extremists', a typical campaign by animal extremists can involve the publication of names, addresses and phone numbers of a company's directors, employees or shareholders, threatening letters, harassing telephone calls and criminal damage. A company's customers, suppliers and stakeholders may also be targeted.

Organisations that have famously been the subject of campaigns by extremists include Huntingdon Life Sciences and both Oxford and Cambridge Universities. In October last year a particularly lurid story in the press alleged that animal rights extremists had taken revenge on Christopher Hall, the co-owner of Darley Oaks Farm, which breeds guinea pigs for medical testing, by digging up the body of his mother-in-law. This was one of 450 incidents allegedly suffered at the farm between February 2003 and December 2004.

Figures published recently by the Association of the British Pharmaceutical Industry are on the increase. In response to pressure from the biosciences and other industries, the Government has brought forward new legislation designed to criminalise certain types of activist behaviour and to close loopholes in the current criminal law. On 7 April 2005, the new provisions, which are contained in The Serious Organised Crime and Police Act 2005, received Royal Assent. They are expected to come into force some time between this July and next April.

Increasing activism

According to a report published in January by the Association of the British Pharmaceutical Industry, which represents 80 companies:

• In 2004, 124 animal rights activists were arrested at demonstrations, compared to only 46 in 2003
• In 2004, there were 177 instances of damage to personal, company and public property, almost treble the number in 2002, and nearly 180 demonstrations outside the homes of private individuals
• In 2004, there were 90 'home visits' made to directors and 89 to employees
• In the last quarter of 2004, 42 companies severed links with animal research providers, compared with 22 in the first quarter.

Names and addresses of shareholders and directors

In July 2004, the Montpellier Group pulled out of building a new animal research centre at Oxford University after shareholders were warned that their details would be published on the Internet unless they sold their shares. The company's share price dropped by 19% in one day. Many shareholders at other companies shifted uncomfortably in their seats at the reminder of how easy it can be for members of the public to obtain the names and addresses of shareholders.

Under section 356 of the Companies Act 1985, a company must allow any person to inspect its share register (which is normally kept at its registered office) and, for a small fee, it must provide a copy of its register, or any part of it, to anyone within 10 days of a request. A person making such a request need not give any reasons. Public companies are also required to keep a register of interests held by shareholders with holdings of 3% or more, and the results of any investigations of their share register (which could include details of beneficial interests), and this information is also open to the public on a similar basis.

All companies limited by shares must also file at Companies House returns of allotments detailing names, addresses and number of shares allotted, and every three years must file a full copy of the shareholder register with the annual return. Unless a confidentiality order is in place, a director's details (including his residential address) are also available from Companies House.

It is sometimes possible to hide ownership of shares by using a nominee or off-shore vehicle, but such arrangements may not guarantee complete anonymity and are often a burden to set up and maintain.

Confidentiality orders for directors

Although the Companies Act states that, to obtain a confidentiality order (which effectively removes a director's residential address from public view), a director must show that he (or someone he lives with) is at serious risk of violence or intimidation, in practice orders are often granted relatively easily to directors of high-profile companies both in and outside the biomedical sector. More than 1,900 orders have been granted, including to directors of Tesco.

However, confidentiality orders are not retrospective, so details filed at Companies House before the order was obtained remain publicly available. In effect, therefore, an order is only useful for first-time directors and when an existing director moves house.

Access to information under the Freedom of Information Act

The Freedom of Information Act, which came into broad effect on 1 January this year, generally allows any person access to information held by a 'public authority', subject to certain exemptions. Relevant exemptions include where disclosure is likely to endanger the safety of any individual or would prejudice commercial interests, but it is currently uncertain how the exemptions will be applied in practice. 'Public authorities' are listed in Schedule 1 of that Act and include Government departments, health authorities and primary care trusts, governing bodies of most universities, and The Animal Procedures Committee.

Under the Act members of the public may, for example, be able to obtain information from public authorities about contractors who have been engaged to build and run research facilities. The Act is retrospective so it will apply to information created earlier than 1 January this year.

Injunctions under the Protection from Harassment Act 1997

There are a variety of offences and measures that can currently be used by the police and companies against extremists. For companies, the most important is probably the ability to obtain injunctions under the Protection from Harassment Act 1997.

Between April 2003 and August 2004, biomedical companies, including Huntingdon Life Sciences and Bayer, obtained at least 13 injunctions under this Act. In December 2004 the High Court granted a 100 yard exclusion zone around the Darley Oaks guinea pig farm and homes of the owner's relatives. (But a recent application in March 2005 for a larger zone of 77 square miles, the biggest ever sought, was rejected.) Other exclusion zones similar to that around Darley Oaks Farm have also been created around premises connected to Oxford University and Huntingdon Life Sciences.

However, to get an injunction it is necessary to show that there has been a course of conduct which amounts to harassment, and that there is an identified individual or individuals against whom proceedings can be brought. Where an extremist organisation has conducted a campaign to harass different employees of a business, each on a single occasion, it can be difficult to get an injunction. In any event, obtaining an injunction can be expensive and time-consuming.

New criminal offences

The Serious Organised Crime and Police Act ("SOCA") received Royal Assent on 7 April 2005. It contains several provisions, which aim to crack down on the threat posed by animal rights activists to UK companies and individuals associated with those companies and to close loopholes in the current law.

Section 125: Harassment intended to deter lawful activities

This section seeks to remedy the shortcomings in the Protection from Harassment Act 1997 that are described above. A new sub-section will make it an offence for a person to:

"pursue a course of conduct—

a) which involves harassment of two or more persons, and

b) which he knows or ought to know involves harassment of those persons, and

c) by which he intends to persuade any person(whether or not one of those mentioned above)—

(i) not to do something that he is entitled or required to do, or

(ii) to do something that he is not under any obligation to do."

Under a further sub-section, an employee or the company itself may apply for an injunction "where there is an actual or apprehended breach" of the new sub-section. The definition of a 'course of conduct' is also broadened to catch cases where two or more individuals are separately harassed at least once each.

The new provisions are not intended to stop lawful lobbying or peaceful protesting. A person distributing leaflets outside a shop about which they are protesting, for example, would not be caught unless they were actually to threaten or intimidate the person to whom they were handing out the leaflet and that person felt harassed, alarmed or distressed.

Section 126: Harassment etc of a person in his home

Currently, section 42 of the Criminal Justice and Police Act 2001 (CJPA) gives the police the power to issue a direction to any person who is outside or in the vicinity of a person's home and who they reasonably believe is there to represent to the resident, or persuade the resident, that he should not do something that he is entitled to do (or should do something that he is not obliged to do) and his presence amounts to or is likely to cause the resident harassment, alarm or distress.

Section 126 SOCA inserts a new section into the CJPA to criminalise behaviour of broadly the same kind as that which currently enables the police to issue such a direction. An offence will only be committed if the person either intends his presence to amount to the harassment of, or to cause alarm or distress to, the resident, or if he knows, or a reasonable person in possession of the same information would have known, that his presence would be likely to have this result.

Section 127: Harassment etc: police direction to stay away from person's home

Because it is doubtful whether a direction issued by a police officer under section 42 CJPA could lawfully direct a person to stay away from the premises for anything other than a relatively short period of time, section 127 SOCA amends section 42 to make it an offence for a person, where he is subject to a direction by the police to leave the vicinity of someone's home, to return within a period of up to 3 months. The precise period may be set by the police. Further new sub-sections make it an offence not to comply with such a direction.

Sections 145-149: Protections for animal research organisations

Sections 145 and 146 create new criminal offences designed specifically to protect animal research organisations. Under section 148 these include:

a) the owners, lessees or licensees of premises where procedures regulated under the Animals (Scientific Procedures) Act 1986 may take place or where animals to be used in these procedures are bred or supplied from;

b) employers of individuals who are licensed to carry out regulated procedures; and

c) persons named in certificates designating places where breeding or supply may take place, and those who engage such people under contracts for their services.

Section 146: Interference with contractual relationships

The key elements of this offence are that:

• The person must intend to harm an animal research organisation. 'Harm' means causing the organisation to suffer loss or damage of any description, or preventing or hindering it from carrying out any of its activities.
• He must do, or threaten to do, an act which either amounts to a criminal offence or which would be actionable by the organisation or another party in tort. But no offence is committed if the only relevant tortious act is inducement to breach a contract: this is designed to ensure that people are able legitimately to advocate that someone should cease doing business with a person connected to an animal research organisation.
• The act or threat must be intended or likely to cause the organisation or another party (i) not to perform any contractual obligation owed by them to someone else (whether or not such non-performance amounts to a breach of contract); or (ii) to terminate any existing contract, or not to enter into a new contract, with someone else.

Intimidation of persons connected with an animal research organisation

Under the new section, a person will commit an offence if:

• He does, or threatens to do, an act which either amounts to a criminal offence or which would be actionable by the organisation or another party in tort;
• He intends to cause the organisation or another party to abstain from doing something they are entitled to do (or to do something which they entitled to abstain from doing); and
• The act is done, or the threat made, "wholly or mainly" because the victim is connected to an animal research organisation. For this purpose, a wide list of persons is specified, including:
• Employees, directors, the company secretary, charity trustees and partners of an animal research organisation (ARO);
• Students at an educational establishment that is an ARO;
• a landlord of any premises occupied by an ARO;
• persons with a financial interest in, or who provides financial assistance to, an ARO or to its customers or suppliers. This would include shareholders in such entities;
• direct or indirect customers and suppliers of an ARO;
• employees, directors etc of, and persons who are contemplating becoming, someone within 3, 4 or 5; and
• spouses, civil partners, friends and relatives of, or persons who are known personally to, someone within any of paragraphs 1 to 6.

Commencement

The new offences will come into force on a date to be appointed by statutory instrument. This is expected to be at some time between this July and next April.

A copy of SOCA published by HMSO can be found here.

Official guidance notes to the relevant sections of SOCA can be found here.

For further information contact [email protected].