Fracking and the right to protest
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Marc Bloomfield
Michael Oswald and Catriona McGregor consider the background to injunctions granted to oil and gas companies seeking to begin fracking, along with some of their most troubling aspects, and summarise the issues that will shortly come before the Court of Appeal.
On 17 October 2018, the Court of Appeal quashed the sentences of imprisonment of three anti-fracking campaigners on the basis that they were manifestly excessive.1See also page 7 of this issue. Two of the men had been given sentences of 16 months’ imprisonment and the third a 15-month sentence after they were found guilty of public nuisance for peaceful direct action they took while campaigning against fracking. The sentences, the first of imprisonment imposed in connection with environmental protest since 1932, had drawn wide condemnation.
The harsh sentences were the latest in a long line of developments that have amounted to a powerful assault on the ability of concerned members of the public to voice opposition to this highly controversial activity. In particular, there has been a developing trend over the past year of oil and gas companies seeking and being granted wide-ranging, draconian injunctions that have had a dramatic chilling effect on the right to protest and free speech.
Fracking
Hydraulic fracturing – fracking – is a process used to extract gas (and oil) from underground shale rock. It involves drilling down into the earth and injecting a mixture of water, sand and chemicals at high pressure to cause the gas to flow out to the head of the well. It has been highly controversial because of wide-ranging concerns about its impact on the environment and on the communities local to the fracking sites, and the level of opposition to fracking in light of these has been such that there have been moratoriums on it in place in Scotland, Wales and Northern Ireland since 2015, while Labour has said that it would ban it across the UK.
Despite the level of opposition, plans for fracking have progressed in England, and Cuadrilla has just begun the first fracking in the UK since 2011 at its site at Preston New Road, Lancashire, the location of the protest that led to the recently quashed sentences of imprisonment.
Injunctions
The effectiveness of protests at bringing attention to the concerns around fracking has led the companies involved to seek injunctions from the High Court to prohibit various protest and campaigning activities. The first of these was sought by INEOS in 2017, and other companies soon followed, including UK Oil & Gas (UKOG), Cuadrilla, IGas, and Angus Energy. The injunctions they have been granted prohibit a very wide range of conduct and severely restrict protest against their activities. The companies have not shied away from the exceptional nature of the injunctions: on its initial successful application, INEOS stated that it had obtained ‘the most wide-ranging injunction of its kind secured by the shale industry’ (‘INEOS wins injunction against shale protesters’, Financial Times, 31 July 2017).
Breach of these injunctions is a contempt of court and can lead to sanctions including imprisonment and fines. Naturally, those concerned about fracking have been left deeply troubled at this assault on their ability to protest and have tried to oppose the grant of the inunctions. They have faced considerable obstacles, not least the inability to obtain legal aid and the threat of having to pay the companies’ costs if they lose. However, the injunction applications have been met by strong opposition, including from Joe Boyd and Joe Corré in the INEOS case, and in the UKOG case from Friends of the Earth and six local women, Constance Whiston, Jacqui Hamlin, Sue Jameson, Vicki Elcoate, Ann Stewart and Natasha Doane.
Although this opposition has been effective in curtailing some of the worst excesses of the injunctions sought, they have nonetheless been granted in wide-ranging and draconian terms: INEOS Upstream Ltd and others v Persons Unknown and others [2017] EWHC 2945 (Ch) and UK Oil & Gas Investments Plc and others v Persons Unknown and others [2018] EWHC 2252 (Ch). The battleground has now moved to the Court of Appeal. Mr Boyd and Mr Corré have both been granted permission to appeal (to be heard in March 2019) and the defendants in the UKOG case have applied for permission to appeal.
Hopefully, the profound chilling effect of these injunctions will be ameliorated by the Court of Appeal’s consideration of their most troubling aspects, some of which are considered below.
Persons unknown
A striking feature of the recent injunctions is that they have for the most part been brought exclusively against ‘persons unknown’ rather than any named defendants. This means that, in principle, they apply to the world at large, and that many of those affected only become aware of the injunction and its terms when they breach it and place themselves in contempt of court.
The grant of injunctions against persons unknown was first allowed in Bloomsbury Publishing Group Ltd and another v News Group Newspapers Ltd and others [2003] EWHC 1205 (Ch). Several copies of the unpublished fifth Harry Potter book had been stolen from the printers and offered for sale to the press by unidentified persons, and an injunction was sought against ‘persons unknown’. The court recognised this was an exceptional step and emphasised that the ‘crucial point … is that the description [of persons unknown] used must be sufficiently certain as to identify both those who are included and those who are not’ (para 21), and persons unknown was defined as those who had and/or were trying to sell the manuscript.
The exceptional nature of the grant of injunctions against persons unknown was again highlighted in Hampshire Waste Services v Intended Trespassers [2003] EWHC 1738 (Ch); [2004] Env LR 196, which concerned a day of protest against incinerators. With regard to the description of the persons unknown, the court stated it was ‘undesirable to use a description such as “intending …” that depends on the subjective intention of the individual which is not necessarily known to the outside world … and is susceptible of change’ (para 9).
The injunctions in those cases stand in stark contrast to those now being granted in the context of anti-fracking protests: the enjoined conduct was clearly, narrowly and tightly defined by reference to physical property (the Harry Potter manuscript) and limited prohibited conduct (selling it) or a particular piece of land in respect of a specific event, on a specified single day (the protest against the incinerator on 14 July 2013). The anti-fracking injunctions are largely geographically and temporally unlimited, prohibit a wide range of ill-defined conduct, and, it is argued, are granted against classes of persons unknown that are so unclear that members of the public are unable to ascertain whether they fall within them.
In light of these matters, permission has been granted to Mr Corré and Mr Boyd in the INEOS case, and is sought by the defendants in the UKOG case, to appeal to the Court of Appeal on the ground that the exceptional step of bringing injunction proceedings against persons unknown is being permitted in cases where the strict pre-conditions in Bloomsbury and Hampshire Waste (ie, necessity, certainty of identification and description of the unknown defendants, clarity and certainty in respect of the prohibited conduct, and that the interests of justice require injunctive relief against persons unknown) are plainly not met.
Legal uncertainty: breach of articles 10 and 11
Another prominent feature of the injunctions is that they have been granted in vague and uncertain terms. That carries with it a serious chilling effect: if individuals are uncertain what conduct may breach the injunction, and so do not know how to avoid breach, they will inevitably err on the side of caution and simply not take part in protest.
This problem is well illustrated by one of the provisions of the injunction in the UKOG case, which prohibits people ‘[g]athering or loitering outside the sites’. UKOG had originally sought an order prohibiting ‘watching and besetting’ (an offence under Trade Union and Labour Relations (Consolidation) Act 1992 s241(1)). This was rejected by the judge on the basis that it lacked certainty, and ‘gathering or loitering’ was introduced as a substitute. However, the terms ‘loitering’ and ‘gathering’ are inherently vague and uncertain, and are no more readily understood than ‘watching or besetting’, the terms that the judge rejected. There is no indication of the numbers, duration or location of any collection of persons that would satisfy the term ‘gathering’, nor of what is meant by ‘loitering’ in a protest context. The effect is obvious: to anyone contemplating protest outside the sites in question, it will appear that they are not permitted to do so.
Similar issues arise in respect of the prohibitions in the UKOG injunction on obstruction of the highway and slow walking (a symbolic form of protest used in anti-fracking demonstrations). Both are prohibited where they are done with the ‘intention of causing inconvenience and delay to the claimants’. It is unclear what degree of disruption will objectively amount to ‘inconvenience or delay’. Moreover, the term ‘intention’ carries with it considerable uncertainty and has been the subject of much judicial consideration. In Hayes v Willoughby [2013] UKSC 17, Lord Sumption stated: ‘A person’s purposes are almost always to some extent mixed, and the ordinary principle is that the relevant purpose is the dominant one’ (para 17). However, the means by which the dominant purpose of any action is identified in any case are unclear, and ‘it does not follow that “intent” necessarily has precisely the same meaning in every context in the criminal law’ (Lord Steyn in R v Woollin [1999] 1 AC 82 at 90).
Unsurprisingly, where the rights of freedom of expression and assembly are so obviously engaged, articles 10 and 11 of the European Convention on Human Rights should stand as a safeguard against such uncertainty. Assessment of whether an interference with those rights is justified includes consideration of whether the measure in question is ‘prescribed by law’. This includes that it must be clear, accessible and not uncertain: Hashman and Harrup v UK App No 25594/94, 25 November 1999. As Lord Nicholls stated in Attorney General v Punch Ltd and another [2002] UKHL 50: ‘This is a well established, soundly-based principle. A person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute’ (para 35).
The terms contained within the anti-fracking injunctions are, it is suggested, paradigm examples of provisions that are overbroad and uncertain, and incompatible with articles 10(1) and 11(1). This is one of the grounds on which Friends of the Earth and the named defendants have sought permission to appeal in the UKOG case.
Freedom of expression under the Human Rights Act 1998
Human Rights Act 1998 s12 provides that where ‘a court is considering whether to grant any relief which, if granted, might affect the exercise of the convention right to freedom of expression’, no interim restraint should be granted ‘unless the court is satisfied that the applicant is likely to establish’ at trial that an injunction should be granted. In both the INEOS and the UKOG cases, those challenging the injunctions have been concerned that the judges in question erroneously applied the s12 test on the basis that the claimants’ evidence was accepted and without giving proper consideration to the competing evidence adduced by the defendants. Permission to appeal has been granted in the INEOS case, and sought in the UKOG case, on the basis that the judges should have properly considered whether the claimants’ evidence would have been accepted, as that is, of course, an essential element of the test as to whether the claimants would succeed at trial.
Conclusion
Like the excessive sentences imposed on the three peaceful protestors at Preston New Road, these injunctions have had a considerable chilling effect on the right to protest. It is hoped that the tenacious opposition of those who continue to challenge them will see these matters addressed by the Court of Appeal.
The authors act in the INEOS case for Mr Corré, and in the UKOG case for Friends of the Earth, Ms Whiston, Ms Hamlin, Ms Jameson, Ms Elcoate, Ms Stewart and Ms Doane.
 
1     See also page 7 of this issue. »

About the author(s)

Michael Oswald - author
Michael Oswald is a solicitor at Bhatt Murphy.
Catriona McGregor - author
Catriona McGregor is a trainee at Bhatt Murphy.