View from the bar: Protesting too much?

Spring 2022 has seen the resurgence of environmental prostesters whose actions in trespassing on and blocking access to energy facilities and public works projects have led to renewed scrutiny of the means by which landowners are able to secure their properties and access.  Where private property is concerned, there ought surely to be no doubt concerning the ability of the lawful owners to enforce their rights to possession in court, in a clear case using injunctions against persons unknown and/or the interim possession orders procedure provided by the Civil Procedure Rules. Similarly, where public roads are blocked by prostesters, there ought to be clarity concerning the extent to which the prosecuting authorities may enforce the criminal law against them.  The law in both these areas has been bedevilled by a number of apparently conflicting recent decisions, especially where local authorities are concerned. Recent authoritative decisions of the courts, one from the criminal side of the spectrum and others from the civil, have however brought some clarity to the area. The criminal law In Director of Public Prosecutions v Cuciurean [2022] EWHC 736 (Admin), the Divisional Court had to consider the correctness of an acquittal on a charge of aggravated trespass contrary to section 68 of the Criminal Justice and Public Order Act 1994, which had been brought against a prostester who had dug and remained in a tunnel in land belonging to the secretary of state for transport, which was being used in connection with the construction of the HS2 railway. In the decision from which the prosecution appealed, a judge ruled that before she could convict, the prosecution had not merely to prove the ingredients of the offence (namely that the defendant had trespassed on land on which the owner was engaged in lawful activity, and had done an act intended to obstruct that activity), but also had to satisfy the court that a conviction was a proportionate interference with the rights of the respondent under Articles 10 and 11 of the European Convention on Human Rights. Sitting with Holgate J, the Lord Chief Justice had no difficulty in concluding that the prosecution was not required to prove that a conviction for the offence of aggravated trespass would be proportionate in Convention terms. He went further, concluding obiter that there was no basis in the Strasbourg jurisprudence to support the respondent’s proposition that the freedom of expression and assembly includes a right to protest on privately owned land or on publicly owned land from which the public are generally excluded. It was fallacious to suggest that, unless a person is free to enter on private land to stop or impede the carrying on of a lawful activity on that land by the landowner or occupier, the essence of the freedoms of expression and assembly would be destroyed: “Legitimate protest can take many other forms.”  In words which will gratify those carrying out public infrastructure projects, he said that those against the HS2 project have other methods available to them for protesting which do not involve committing any offence under section 68, or indeed any offence. The Strasbourg court has often observed that the Convention is concerned with the fair balance of competing rights. The rights enshrined in Articles 10 and 11 protect the expression of opinions, the right to persuade and protest and to convey strongly held views but they do not sanction a right “to use guerrilla tactics endlessly to delay and increase the cost of an infrastructure project which has been subjected to the most detailed public scrutiny, including in parliament”. The civil law Further clarification has been provided in the civil sphere, where a series of recent decisions had cast doubt over the extent to which owners of land were able to enforce their rights to possession and freedom of access by final injunctions against “persons unknown”. In Barking and Dagenham LBC v Persons Unknown [2022] EWCA Civ 13, the Master of the Rolls, sitting with Lewison and Elisabeth Laing LJJ, carried out a wide-ranging analysis of the cases, before concluding that final injunctions could be granted against persons unknown who were not parties at the date of the final order, that is to say newcomers who had not by that time committed the prohibited acts and so did not fall within the description of the “persons unknown” and who had not been served with the claim form. Those frustrated by prostesters may therefore yet have a remedy under the civil law – most obviously an injunction against persons unknown preventing a threatened nuisance or trespass.  Much of the litigation in this area has focused on activities relating to the extraction and use of carbon fuels. Perhaps the most notorious is the long-running saga concerning the Ineos Group, which had applied for planning permission to commence fracking exploration on certain sites. The prostesters engaged in activities which included trespass, blocking rights of way, slow walking and lying down on public highways, and individuals being locked on to equipment. Ineos successfully applied for injunctions to prevent future unlawful acts by prostesters at any of its sites, including trespass, private and public nuisance and conspiracy to injure by unlawful means. The Court of Appeal subsequently varied the orders made, while leaving injunctions against specified categories of persons unknown in place. In November 2019, the government announced a moratorium on fracking, and subsequently one of the defendants applied to strike out the claim against it, while Ineos itself applied to discharge the injunction, on the ground of a material change in circumstances. Those applications were heard by the High Court this March. In its judgment – Ineos Upstream Ltd v Persons Unknown [2022] EWHC 684 (Ch) – the court refused the application to strike out the claim; discharged the injunction; and ordered there to be a case management conference to consider the final determination of the claim. The saga continues.  Both the criminal and the civil law appear, therefore, to be working to restore some order in what had become a confused field, with issues of high principle at stake as energy security confronts the immediacy of climate change.  Guy Fetherstonhaugh QC and Toby Boncey are barristers at Falcon Chambers Image © Peter MacDiarmid/Shutterstock