Fracking – Trespass – Persons unknown – Appellant protesters appealing against suspended term of imprisonment for breach of injunction prohibiting “persons unknown” from trespass – Whether terms of injunction sufficiently clear – Whether sanction of imprisonment appropriate – Appeal allowed in part
The respondents owned land off Preston New Road, near Blackpool in Lancashire, on which they engaged in lawful hydraulic fracturing, or “fracking”. An interim injunction was granted to restrain “persons unknown” from trespass and unlawful interference. The injunction prohibited obstruction of the highway leading to the site entrance with the intention of causing inconvenience or delay to the respondents (para 4) and prohibited acts which included obstructing free passage along the highway of the respondents’ lorries with the intention of impeding their lawful activities (para 7).
The appellants were protesters on and near the respondents’ land. They prevented vehicles from accessing the site by laying down in the road and the first appellant stood on the access route to the site in the path of a tanker lorry, causing it to veer across the carriageway.
The respondents applied to commit the appellants to prison for breach of the injunction. The court found that they had done the prohibited acts intentionally, knowing all the facts which constituted a breach of the injunction. The judge was satisfied that the custody threshold was passed and committed the appellants to prison for four weeks in relation to the first incident and two months in relation to the second, both suspended for two years.
The appellants appealed. Relying on the decision of the Court of Appeal in Boyd v Ineos Upstream Ltd [2019] EWCA Civ 515, they argued that paras 4 and 7 were insufficiently clear and certain to be enforceable by committal because whether conduct was prohibited was dependent on the intention of the person concerned. Alternatively, the sanction of imprisonment, albeit suspended, was inappropriate and unduly harsh because the injunction was granted against “persons unknown” who committed specified acts, and the acts done by the appellants were part of a campaign of direct action designed to disrupt the respondents’ activities.
Held: The appeal was allowed in part
(1) The right to engage in public protest was an important aspect of the fundamental rights to freedom of expression and freedom of peaceful assembly protected by articles 10 and 11 of the European Convention on Human Rights. Those rights, and hence the right to protest, were not absolute; but any restriction on their exercise would be a breach of articles 10 and 11 unless the restriction was prescribed by law, pursued one (or more) of the legitimate aims stated in articles 10(2) and 11(2) and was necessary in a democratic society for the achievement of that aim. Applying the last part of the test required the court to assess the proportionality of the interference with the aim pursued. Exercise of the right to protest often resulted in some disruption to ordinary life and inconvenience to other citizens. That by itself did not justify restricting the exercise of the right but restrictions on protests deliberately intended to cause disruption might more readily be justified as necessary in a democratic society for the achievement of legitimate aims.
In the present case, the respondents accepted that the conduct of the appellants fell within the scope of articles 10 and 11, even though disruption of their activities was not merely a side-effect but an intended aim of the appellants’ conduct. It followed that both the injunction prohibiting that conduct and the sanctions imposed for disobeying the injunction were restrictions on the appellants’ exercise of their rights under articles 10(1) and 11(1) which could only be justified if they satisfied articles 10(2) and 11(2).
(2) It was well-established that an injunction had to be expressed in terms which were clear and certain so as to make plain what was permitted and prohibited. In a case of the present kind where an injunction was granted against “persons unknown”, it was unreasonable to impose on the public the cost of consulting a lawyer to find out what the injunction prohibited them from doing. However, there was nothing objectionable in principle about including a requirement of intention in an injunction.
It was possible to frame a prohibition which applied only to future conduct that actually caused damage. However, in order to make the terms of the injunction correspond to the tort and avoid prohibiting conduct that was lawful, it was necessary to include a requirement that the defendants’ conduct was intended to cause damage to the claimant. There was nothing ambiguous, vague or difficult to understand about such a requirement. The only potential difficulty was one of proof: Boyd v Ineos Upstream Ltd considered.
(3) The fact that acts of deliberate disobedience to the law were committed as part of a peaceful protest would seldom provide a defence to a criminal charge but it was a relevant factor in assessing culpability for the purpose of sentencing in a criminal case. Where, as in the present case, individuals not only resorted to compulsion to hinder or try to stop lawful activities of others of which they disapproved, but did so in deliberate defiance of a court order, they had no reason to expect that their conscientious motives would insulate them from the sanction of imprisonment.
The judge had had regard to the fact that the breaches of the injunction committed by the appellants were part of a protest but erred in not accepting that that was relevant in deciding what sanction to impose. Although the appellants’ rights to freedom of expression and assembly had already been taken into account in deciding whether to make the order which they disobeyed, imposing a sanction for such disobedience involved a further and separate restriction of their rights which also required justification in accordance with articles 10(2) and 11(2).
(4) Although the custody threshold had been crossed, greater clemency should be shown in cases of non-violent civil disobedience. Such protesters were generally, apart for their protest activity, law-abiding citizens and the purpose of imposing sanctions, whether for a criminal offence or for intentional breach of an injunction, was to engage in a dialogue with the defendant. There was a moral difference between those protesters and ordinary law-breakers which it was right to take into account. Giving due weight to the nature of the unlawful means used, the fact that this was a second deliberate breach and the complete lack of contrition, the appropriate penalty was a suspended term of imprisonment of four weeks.
Kirsty Brimelow QC, Adam Wagner and Richard Brigden (instructed by Robert Lizar Solicitors) appeared for the appellants; Tom Roscoe (instructed by Eversheds Sutherland (International) LLP) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read a transcript of Cuadrilla Bowland Ltd and others v Persons Unknown and others
