Case No: CO/4172/2011
Neutral Citation Number: [2012] EWHC 133 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 2 February 2012

Before :

LORD JUSTICE MOORE-BICK
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Between :

	THE QUEEN
(on the application of CLAIRE WAXMAN)	Claimant	
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	CROWN PROSECUTION SERVICE	Defendant	

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(Transcript of the Handed Down Judgment of
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Mr. Ian Wise Q.C. and Mr. Stephen Broach (instructed by Scott-Moncrieff and Associates LLP) for the claimant
Mr. Louis Mably (instructed by Crown Prosecution Service) for the defendant

Hearing date: 14th November 2011
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Judgment
Lord Justice Moore-Bick: 
1.	This is a claim for judicial review of the decision of the Crown Prosecution Service (“CPS”) not to pursue the prosecution of Mr. Elliot Fogel for harassment of the applicant, Ms Claire Waxman.
2.	Ms Waxman first met Mr. Fogel when she was at college in St Albans. It seems that he developed an obsession with her and over the past eight years he has subjected her to serious and persistent harassment. That harassment has taken a variety of forms, but has included making internet searches for information relating to her and her family and storing the information obtained as a result.
3.	On 28th December 2005 Mr. Fogel was convicted by Brent Magistrates of harassing Ms Waxman and was sentenced to a Community Punishment and Rehabilitation Order of 100 hours Community Punishment and 36 months’ Community Rehabilitation. In February 2006 a restraining order was made against him by the magistrates under section 5 of the Protection from Harassment Act 1997. That order, as varied on appeal by the Crown Court at Harrow on 3rd March 2006, prohibited him until further order from “molesting, harassing or otherwise interfering with or contacting directly or indirectly” Ms Waxman or various members of her family and from “retrieving or storing any information in any media or form whatsoever” relating to them. An exclusion order was also made prohibiting Mr. Fogel from going within a mile of Ms Waxman’s home address. He was ordered to pay compensation in the sum of £3,500.
4.	On 4th August 2006 Mr. Fogel issued proceedings in the Willesden county court against Ms Waxman claiming £3,500, being
“ . . . a substantial amount of money which was awarded to the defendant as compensation at a previous case held at Brent Magistrates’ court.”
The claim was struck out as having no prospect of success. It could equally well have been regarded as an abuse of the process.
5.	Mr. Fogel continued to harass Ms Waxman and on 30th March 2007 he was prosecuted for a breach of the restraining order, to which he pleaded guilty. He received a suspended sentence of imprisonment, but further breaches of the order led to his imprisonment for four months.
6.	On 1st November 2010 Mr. Fogel issued proceedings against Ms Waxman in the Willesden County Court which he served on her himself by post. The relief sought was
“(1)	To close down a Facebook website created by [Ms Waxman] and its associated social network sites which contains [sic] details of a hate campaign against myself, Elliot Fogel.
(2)	To prevent any further attempts by [Ms Waxman], either directly or indirectly, to get me sectioned under the Mental Health Act.”
On 1st February 2011 that claim too was struck out as being wholly without merit and a civil restraint order was made prohibiting Mr. Fogel from issuing any further claim without the leave of a circuit judge.
7.	Meanwhile, at the instigation of the CPS Mr. Fogel had been charged on an indictment containing two counts, each alleging a further breach of the restraining order. Count 1 charged him with causing a communication to be made with Ms Waxman by way of service of the proceedings on her; count 2 charged him with retrieving information relating to her in the form of the documentation on which he relied in support of his claim. When the matter came before the Crown Court on 12th January 2011 for a plea and case management hearing a question arose whether Mr. Fogel had a constitutional right to bring proceedings in the civil courts and therefore whether any attempt to prevent him doing so would infringe his rights, both at common law and under Article 6 of the European Convention on Human Rights (“ECHR”). As a result the hearing was adjourned and the CPS took advice from counsel. In the light of that advice Ms Waxman was informed by letter dated 9th February 2011 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 not be read as restricting Mr. Fogel’s right to bring proceedings in the civil courts; the second was that since the material on which the charge was based mentioned Mr. Fogel himself as well as Ms Waxman 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.
8.	Mr. Ian Wise Q.C. for Ms Waxman submitted that the decision of the CPS not to pursue the charges against Mr. Fogel was based on a misunderstanding of the principles of law governing the right of access to the courts which in turn led it to form an incorrect view of the proper construction to be given to the restraining order.  He submitted that the restraining order does not contain an absolute prohibition on access to the courts because there is no absolute right at common law or under the ECHR to commence vexatious and abusive proceedings and because in any event it was open to Mr. Fogel to ask the court to vary the order to allow him to start proceedings if there were reasonable grounds for doing so. He also submitted that the state has a duty under Article 8 of the ECHR to protect Ms Waxman’s physical and moral integrity and that the failure of the CPS to pursue the prosecution of Mr. Fogel involved a failure in its duty to her. Mr. Louis Mably for the CPS argued that every citizen has the right to start proceedings in the civil courts and to pursue them to a conclusion, subject to the court’s power to control abuse of its process by judicial decision.
9.	The restraining order in this case was certainly framed in terms wide enough to cover issuing proceedings against Ms Waxman and serving them on her at home. The generic expressions “harassing” and “contacting directly or indirectly” are capable of extending that far, unless they have to be read in a more limited way, and it is difficult to see in principle why the commencement and service of civil proceedings should not be capable of amounting to harassment, since it is a form of conduct that may well cause anxiety, alarm and distress to the defendant, not to mention the need to spend time and money dealing with the claim itself. If the claim is made in good faith in order to obtain redress, these may be unfortunate but inevitable consequences of invoking the legal process and if so have to be endured, even if the claim is manifestly ill-founded. However, if the claim is not made in good faith but is made simply for the purpose of causing anxiety, alarm or distress, the position may be different. It can then be justified only on the grounds that the claimant has an absolute right to bring proceedings limited only by a judicial decision to strike them out as an abuse of the process and, for the future, by a judicial decision in the form of a civil restraint order. In the end Mr. Mably was constrained to argue that that was the case.
10.	The background to the prosecution tells one a good deal about the nature of the proceedings which Mr. Fogel issued in the Willesden county court on 1st November 2010. There had been a long history of harassment of Ms Waxman, both before and after the restraining order made against him, and no attempt on his part to have it varied in order to permit him to bring proceedings against her. The terms in which he issued proceedings in August 2006 strongly suggest that they were intended to be a continuation of his battle by other means. They were plainly wholly devoid of merit and it is difficult to think that he could have thought otherwise. On their face the proceedings started in November 2010 were perhaps not so obviously devoid of all merit, but there is no evidence to suggest that there was in fact any substance to them. Whether they were brought in good faith is another matter, since there are grounds for questioning Mr. Fogel’s state of mind when it comes to anything involving Ms Waxman, but again, the evidence supports the conclusion that their primary, if not their sole, purpose was to inconvenience and annoy her. Certainly there is no evidence to the contrary.
11.	I accept that the right of access to the courts is a fundamental right at common law, but it is not one that has ever been regarded as absolute. At this point it is necessary to distinguish between two different rights, the right to issue proceedings and the right to have the merits of the claim judicially considered and determined. It is true that in the ordinary way the court office is not concerned with the content of the claim form and must issue proceedings in whatever terms it is asked to do so, but the right to have the merits of the  claim judicially considered and determined has always been subject to the court’s power to control abuses of its process by summarily striking out the proceedings. More recently in Bhamjee v Forsdick [2003] EWCA Civ 1113, [2004] 1 W.L.R. 88 it was recognised that the courts have the power by imposing civil restraint orders to control the activities of those who abuse the right of access, a jurisdiction now governed by CPR 3.11 and Practice Direction 3C. In Ebert v Official Receiver [2001] EWCA Civ 340, [2002] 1 W.L.R. 320 orders made under section 42 of the Senior Courts Act 1981 in respect of vexatious litigants were held to be compatible both with the common law and with Article 6 on grounds that apply equally to other forms of order imposed to control abuses of the court’s process. If the right of access to the courts can be controlled by a judicial decision in the form of a civil restraint order, I do not see why in principle it should not also be controlled by a judicial decision in the form of a suitably worded restraining order made under the Prevention of Harassment Act. 
12.	The relevant part of Article 6 of the ECHR provides as follows:
“In the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
It is recognised that this is not an absolute right, however, and is subject to restrictions necessary to achieve a legitimate social objective: see Ashingdane v United Kingdom (1985) 7 EHRR 528. The prevention of persistent harassment of the kind in which Mr. Fogel had been engaged is, in my view, a legitimate social objective that is capable of justifying a restriction on his rights under Article 6. 
13.	Mr. Mably did not seriously challenge either of those propositions, but he did submit that, in view of the importance of the right of access to the courts, the restraining order in this case, which makes no reference to the commencement of proceedings, could not properly be construed as having the effect for which Mr. Wise contended.
14.	At the time the order was made Mr. Fogel had not resorted to legal proceedings in order to harass Ms Waxman, so even though he might have been expected to vary his methods, I do not think it can be said that that was the very thing the court must have had in mind when making the order. Nonetheless, the court did have good reason to think that, unless restrained, he was likely to harass her further in the future in one way or another, which is why the order was made in general terms. In my view the key to this part of the argument lies in the use of the words “molesting” and “harassing”. Paragraph 1 of the order was intended in terms to prevent Mr. Fogel from harassing Ms Waxman. In my view a distinction can properly be drawn between commencing legal proceedings in order to pursue a bona fide claim, even if it is one with little or no merit, and commencing wholly unmeritorious proceedings for the sole purpose of causing vexation, anxiety and annoyance. Whether the evidence was sufficient to establish harassment in this or any other case would, of course, be a matter for the tribunal of fact.
15.	Given the nature and purpose of this order, however, I see no reason to construe it as prohibiting all proceedings or none and therefore as prohibiting none. To say that an order cast in the terms of paragraph 1 is not apt to encompass the commencement of unmeritorious proceedings for an improper purpose fails to give proper effect to its terms as a whole. Count 1 of the indictment charged Mr. Fogel with causing a communication to be made with Ms Waxman by initiating proceedings against her. Again, the prohibition against contacting Ms Waxman has to be read in the context of the rest of the order. The service of the claim form was a consequence of its issue. The nub of the question, therefore, is whether the issue of proceedings involved a breach of the order, because if Mr. Fogel was entitled to bring the proceedings, he must also have been entitled to serve them.
16.	The indictment was drafted without any reference to the purpose for which Mr. Fogel was alleged to have brought the proceedings, although there is little doubt that the CPS thought that it was another twist in his campaign against Ms Waxman and there was evidence from which the jury might well have inferred as much. It may be that the indictment would have required amendment to make that clear, but for the reasons I have given I think the CPS was wrong to think that the prosecution was bound to fail because it was not possible to establish a breach of paragraph 1 of the order. 
17.	Mr. Wise also submitted that even if the order had contained an absolute prohibition on commencing proceedings, the existence of the right to apply to the court in an appropriate case for a variation to enable proceedings to be issued and served on Ms Waxman would be sufficient to prevent a disproportionate interference with his rights under Article 6. I am inclined to think that that is right, because the restriction imposed by the order would ultimately have been subject to review by the court and to a judicial decision that would involve a proper consideration of the competing interests. However, in view of the conclusion I have already reached it is unnecessary to decide that question.
18.	The second count on the indictment charged Mr. Fogel with retrieving the material relating to Ms Waxman for use in support of his claim against her. The material consisted of prints taken from on-line newspapers and websites referring to his conduct towards her, together with comments posted by members of the public. To the extent that the restraining order is to be construed as allowing Mr. Fogel to bring proceedings against Ms Waxman it is difficult to construe it as prohibiting him from taking the steps reasonably necessary to do so. However, since, in my view, the order did not permit him to commence the proceedings in question, it cannot be said that the retrieval and storage of the relevant information was permissible on that ground. 
19.	Mr. Mably submitted that to restrict Mr. Fogel’s right to retrieve publicly available information about himself involved an unjustifiable infringement of his rights under Articles 8 and 10 of the ECHR and that submission, if well-founded, would provide a defence to the charge in the second count of the indictment, regardless of his right to bring proceedings. However, as Mr. Mably himself recognised, neither of those articles gives rise to unqualified rights; in each case it is recognised that an interference with those rights is permissible if it is in accordance with the law and necessary in a democratic society for the protection of the rights of others. The essential question, therefore, is whether the restraining order, correctly construed, involves a disproportionate interference with Mr. Fogel’s rights. In my judgment it does not. Ms Waxman has the right, recognised not only by the general law but by the decisions of the courts, to live her life free of the persistent nuisance and annoyance caused by the activities of Mr. Fogel. It is not said that a prohibition on the retrieval and storage of information about Ms Waxman herself and members of her immediate family was unnecessary for her protection or that it in itself involved a disproportionate interference with Mr. Fogel’s rights; all that is challenged is the prohibition on his retrieving and storing information that related to himself as well as to her. Given Mr. Fogel’s long campaign of harassment against Ms Waxman which had excited a certain amount of public comment, it was inevitable that much of the published information that referred to her referred to him as well. In those circumstances an order prohibiting Mr. Fogel from retrieving information about Ms Waxman which incidentally prevented him from retrieving and storing some, but not all, publicly available information about himself was reasonable and necessary to protect her rights and did not involve a disproportionate interference with his. In my view, therefore, the restraining order is not to be construed as implicitly allowing Mr. Fogel to retrieve and store material containing information about himself if it also contained information about Ms Waxman and her immediate family.
20.	It follows that in my view the CPS was wrong to think that the prosecution of Mr. Fogel was bound to fail and that its decision not to proceed with it was based on an incorrect understanding of the law and of the restraining order.
21.	Ms Waxman seeks relief not only by way of declaration but also by way of an award of damages under section 8 of the Human Rights Act 1998 for unlawful interference with her rights under Article 8. It was common ground that in certain circumstances Article 8 imposes on the state a positive obligation to take effective action to protect a person’s private and family life, including his physical and psychological integrity. In Jankovic v Croatia (Appn 38478/05) the claimant complained that the authorities had failed to provide her with adequate protection against a violent attack from a group of people who appeared to have a grudge against her. The European Court of Human Rights recognised, not for the first time, that Article 8 gives rise to a duty on the part of the state to maintain and operate an adequate system for affording protection against acts of violence by private individuals. In that case the court found that there had been a complete breakdown in the administration of justice since the authorities had failed to prosecute the attackers, despite having been provided with all the information necessary to enable them to do so, and had also frustrated the claimant’s right to pursue a private prosecution. In those circumstances the court held that there had been a violation of the state’s obligation under Article 8. It awarded her damages in the sum of €3,000.
22.	In A v Croatia (Appn 55164/08) [2011] 1 FLR 407 the claimant was subjected to repeated violence from her husband over a long period of time. The court reiterated that the right to respect for a person’s private life imposes an obligation on the state to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals. In that case it was found that the state had put in place adequate and necessary protective measures but had failed to implement them. By leaving the claimant for a long time in a vulnerable position the state had failed to satisfy its obligation to ensure respect for her private life. Again, there had been a complete breakdown in the administration of justice. The court awarded the claimant damages in the sum of €9,000.
23.	In Hajduova v Slovakia (Appn No. 2660/03) the claimant was attacked and verbally threatened by her husband. She suffered a minor injury and feared for her life and safety. She moved out of the matrimonial home with her children, but a week later her husband repeated several times his threat to kill her. He was prosecuted and ordered to undergo psychiatric treatment, but the court’s failure to make an order for his detention led to his release after only a week. He immediately threatened the claimant and her lawyer again. He was again prosecuted, convicted and detained in a psychiatric hospital for treatment. The claimant brought proceedings before the Strasbourg court seeking a remedy for what she maintained was an interference with her rights under Article 8. The court reiterated that the state has a duty to protect the physical and moral integrity of its citizens from harm by others and recognised the particular vulnerability of victims of domestic violence and the need for active state involvement in their protection. The court noted that, although the threats made by the claimant’s husband had not materialised into concrete acts of physical violence, the history of physical abuse and menacing behaviour would naturally have led to a well-founded fear on her part that his threats might be carried out and that that was enough to affect her psychological integrity. The claim was allowed and damages in the sum of €4,000 were awarded in respect of non-pecuniary damage. 
24.	I would not wish to diminish in any way the effect that Mr. Fogel’s activities have had on Ms Waxman, but the present case differs from those of Jankovic and A in some important respects. In each of those the claimant was exposed to a significant degree of physical violence and threats against which, in the case of A, she was given no protection and in respect of which, in the case of Jankovic, she was given no redress or protection from possible repetition. In the present case, by contrast, the effect of Mr. Fogel’s breaches of the restraining order were rather less severe. On the other hand, this case does bear certain similarities to Hajduova. By January 2011 Mr. Fogel’s activities had been going on for several years and their effect on Ms Waxman was cumulative. In my view she was a vulnerable person whose psychological integrity the state had an obligation to protect from further action on his part. It is true that there was not in this case a complete failure on the part of the state to take appropriate action to protect her, comparable to that which occurred in Jankovic and A, but the decision in Hajduova makes it clear that there may be a breach of the state’s positive duty under Article 8 without there being a fundamental failure of the system of the kind that occurred in those cases. In the light of the history of the matter and the serious effects of Mr. Fogel’s behaviour towards Ms Waxman, the state owed her a duty to take proper measures to protect her and was in breach of its duty in failing to pursue the prosecution.
25.	For the reasons I have given I am satisfied that Ms Waxman is entitled to relief by way of declaration and also to an award of damages in respect of the alarm and distress caused by the failure of the CPS to pursue the prosecution. Any award of damages in a case of this kind should, in my view, reflect the awards made by the European Court of Human Rights in similar cases. In my judgment a sum of £3,500 is appropriate.