Victory for the Greenpeace Ten

14 Nov 2017

Ten Greenpeace anti-fracking activists had charges against them thrown out by the district judge (DJ) in Blackpool Magistrates Court last month. We have suffered many court defeats in recent times in anti-fracking cases, with DJs in Blackpool and Chesterfield regularly returning guilty verdicts on peaceful, direct-action campaigners. We celebrate this rare but very welcome victory and learn some lessons for future battles ahead.

The high conviction rate of protestors gives the court’s seal of approval to the approach of the heavy handed and restrictive policing of anti-fracking protestors. Tactics such as “kettling” and forcible clearance of protestors on the highway are improperly restricting the right to protest. Peaceful protestors are being routinely subjected to abusive and intimidating policing and then criminalised for standing up for their rights of free expression and their right to protest. Campaigners continue to show great courage and resilience. They will not be deterred from exercising their rights to protest. And we pay tribute to their struggle.

Protestors frequently face charges of aggravated trespass (section 68 of the Criminal Justice and Public Disorder Act 1994 – designed to criminalise protest action), obstructing/disrupting a lawful activity (section 241 of the Trade Union and Labour Relations (Consolidation) Act 1992 – designed to stop solidarity picketing), and obstruction of the highway (section 137 of the Highways Act 1980 – designed to stop free assembly).

The “Greenpeace 10” were anti-fracking protestors charged under section 137 of the Highways Act 1980 for wilfully obstructing the free passage along the highway without lawful authority or excuse. In their trial, the facts of the case were largely agreed between the prosecution and the defence. Early in the day, eight defendants arrived at the entrance to the Cuadrilla fracking site on the A583 Preston New Road, and in pairs, “locked on,” using a “device” and a carabiner attached to their wrists. The devices were placed, on the side of a marked cycle path which was directly adjacent to the Kirkham/Preston bound carriageway. They did not cover the whole of the entrance to the site and commercial vehicles were able to exit onto the A583. The ten accepted that they could have released themselves from the devices had they chosen to do so.

The police asked each defendant to disengage the “lock on” and warned them they were committing an offence and that they faced arrest if they didn’t move. None were prepared to end their protest action. In the early afternoon a team of officers cut one pair free of the “lock on.” A short time later the remaining eight defendants released themselves from their devices. The “lock-on” had lasted for a little short of eight hours.  All ten were arrested, and charged.

At trial the defendants argued that their actions were focussed on Cuadrilla’s vehicular access to the site, and not against the general public. There was no real disruption to the public’s right to pass and repass. They accepted that they were technically in a part of the highway, but they were not within the cycle path, and that pedestrian traffic could pass with ease by using the pavement on the opposite side of the road. They argued that the level of disruption was a relevant factor that the court must consider. Video evidence showed a convoy of HGVs exiting the Cuadrilla site. The necessary mens rea for the commission of the offence was not made out and that in all the circumstances their actions could not be shown to have been unreasonable, and that thus they had lawful excuse, in the specific circumstances, to act as they did. Freedom of Expression and Freedom of Assembly and Association conferred by Articles 10 and 11 of the ECHR were engaged in this case. Taken together these Articles afford protection from attempts to restrict the right to protest.

The Common Law has long recognised the right to protest peacefully and cautions against unnecessary and disproportionate restrictions such as arrest, prosecution and conviction. In Nagy v Weston (1965) 1 All ER 78 (a case concerning the parking of a hot-dog van on a street in Oxford), cited in Hirst and Agu v Chief Constable of West Yorkshire (1987) 85 Cr. App. R 143, Lord Parker CJ said:

Counsel for the appellant concedes, as indeed he is bound to concede, that any occupation of part of a road, thus interfering with people having the use of the whole of the road, is an obstruction. He also concedes that wilful obstruction is when the obstruction is caused purposely or deliberately. He goes on to say, however, that before anyone can be convicted of this offence two further elements must be proved, first that the defendant had no lawful authority or excuse and, secondly, that the use to which he was putting the highway was an unreasonable use. For my part I think that excuse and reasonableness are really the same ground, but it is quite true that it has to be proved that there was no lawful authority.

In Tabernacle v The Secretary of State for Defence (2009) EWCA Civ 23, Laws LJ offered this view at para 43:

Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them.

There are many authorities and much guidance dealing with the degree of tolerance required when dealing with lawful protest: in Sergey Kuznetzov v Russia (Application number 10877/04), the European Court of Human Rights said this (para 44):

Finally, as a general principle, the Court reiterates that any demonstration in a public place inevitably causes a certain level of disruption to ordinary life, including disruption of traffic, and that it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance.

There was, in fact, no disruption to traffic on the A583. Vehicles were able to exit the Cuadrilla site. Cuadrilla itself, through its CEO Mr Egan, confirmed that “the protest today is having no impact on our site construction activities, which are continuing uninterrupted.

The DJ was clearly impressed with the defendants. They were calm and polite throughout proceedings, and he found them to be genuine in their beliefs. They had promoted their cause in many other different ways, from fundraising, leaflet drops, attending meetings, addressing groups and founding branches of organisations. The DJ thought that important considerations were the location, duration, interference with the rights of others, and, overall, the reasonableness of the protestors. He made it clear that each case will be judged on its particular facts and his judgement would not set a precedent. Here the prosecution had to show that these defendants were unreasonable. The DJ concluded that the defendants had raised and established “lawful excuse” to the extent that it would then fall to the prosecution to rebut such. The prosecution had not shown the defendants here to have been unreasonable. There was fundamental responsibility being exercised by these defendants.

A well organised and disciplined defence made it difficult for the DJ in the particular circumstances of this case to find against these ten defendants. Well done to them. We will keep fighting in our forthcoming challenges!

Owen Greenhall of Garden Court Chambers, London represented the defendants.

Andy Fitzpatrick and Richard Brigden are barristers at Garden Court North Chambers.

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