Court of Appeal reduces fracking protester sentence and affirms that the courts attach great weight to the right to peaceful protest

27 January 2020

The Court of Appeal has allowed the appeal of three anti-fracking protesters in part. This was the first case of protesters being found in contempt of court for breaching an anti-protest injunction. Days before the appeal, fracking company Cuadrilla abandoned their opposition to the activists’ argument that key parts of the injunction at the Preston New Road fracking site should be removed.

The Court rejected the argument that activists Katrina Lawrie, Lee Walsh and Christopher Wilson, should have not have been committed because the anti-protest injunction was too uncertain but reduced the sentence of Katrina Lawrie and found that a High Court Judge had failed to properly apply human rights law before sentencing the activists.

Importantly, the Court also gave detailed guidance on the appropriate sanctions in political protest cases, stating in the clearest terms in a UK court judgment to date that “greater clemency” should be shown in cases of non-violent civil disobedience. Lord Justice Leggatt, giving the judgment of the Court, said there are “at least three reasons” for leniency, including that “a person who engages in acts of civil disobedience establishes a moral difference between herself and ordinary law-breakers which it is right to take into account”, that such a protestor is “generally – apart from their protest activity – a law-abiding citizen” and that the “purpose of imposing sanctions, whether for a criminal offence or for intentional breach of an injunction, is to engage in a dialogue with the defendant” (paragraph 98).

The appellants applied to remove key parts of the injunction which significantly restricted protest outside the Preston New Road fracking site. Days before the appeal hearing in December, Cuadrilla themselves applied to withdraw the offending parts of the injunction, in effect conceding part of the appeal.

The Court has also granted permission to appeal the lower court’s finding that the appellants should pay Cuadrilla’s costs of the case. The appellants will now argue that this breaches their human right to a fair trial and access to the courts – if this argument does not succeed, they are likely to be liable to pay tens of thousands for Cuadrilla’s corporate lawyers. There is a huge disparity between the resources of protesters and large corporations obtaining these kind of anti-protest injunctions – particularly as legal aid is not generally available to challenge the injunctions themselves. This part of the appeal will be heard in the coming weeks.

Nicola Hall of Robert Lizar Solicitors represented the appellants, instructing counsel team Kirsty Brimelow QC and Adam Wagner of Doughty Street Chambers and Richard Brigden of Garden Court North chambers.

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