Examples of Environmental Protest

The modern movement of environmental protest began in the 1990s. They addressed issues such as nuclear power, road developments and coal fired power stations. All of these issues remain at issue today, for example, recent litigation concerning the Sizewell C Nuclear Power Station, or the Cumbria coal mine. Therefore, many of the issues of concern for environmental protestors then remain the same today. Indeed, it is likely many of the protestors themselves are the same, in addition to those of a younger generation concerned about the threat to the environment. Recently, we have seen protests involving groups like Insulate Britain, Extinction Rebellion and Just Stop Oil which have targeted transport infrastructure as well as energy infrastructure.

Causes of Action

Many different types of causes of action have been relied upon in the case of injunctions against protestors. Usually, injunctions relate to incidents of trespass or nuisance. In cases, however, where the Claimant has no right to occupy the relevant land, they can rely on economic torts, where it is only necessary to show an injury has occurred; Esso Petroleum v Breen [2022] EWHC 2664 (KB), [21]. Harassment has also featured in the caselaw, though it is well established that accusations of speech-based harassment will have a high bar to meet; MBR Acres Ltd v Free the MBR Beagles [2022] EWHC 3338 (KB), [64] (Nicklin J).

Persons Unknown

One issue Claimants will face is actually identifying who is involved, for example, in the protest group carrying out, or threatening to carry out, the protest or action. Prohibitory injunctions against Persons Unknown are a useful tool in those scenarios - namely a Court order which prevents unidentified persons from doing something. A breach of an injunction generally leads to a prison sentence for contempt of court, therefore the Courts will subject any injunction applications to detailed scrutiny. Caselaw such as Canada Goose v Persons Unknown [2021] 1 WLR 2802 has been key in the development of the law in this area. The recent decision in Valero Energy v Persons Unknown [2024] EWHC 134 (KB) concerned three petrochemical companies which formed part of the larger Valero Group. The Defendants were “persons unknown” associated with protest groups such as Insulate Britain and Just Stop Oil, as well as named individuals known or suspected to have participated in disruptive behaviour at or on the access roads leading to the Valero sites. Having obtained several interim injunctions against the Defendants previously, the Claimants applied for a final injunction. The Court confirmed that the principles in Canada Goose were good law following the seminal Supreme Court decision in Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47 and described a final injunction against persons unknown as a “nuclear option” akin to a temporary piece of legislation affecting all citizens of England and Wales. Because of these concerns, such injunctions must only be used “with safeguards in place.” The judge clarified that final injunctions against “persons unknown” are not totally final, as they are subject to reviews. They are therefore “quasi-final.” On the facts of this case, he concluded that the requirements had been met and granted the five-year injunction sought, subject to annual reviews.

Intersection with Criminal Law

As well as being a live issue in the civil law realm of injunctions, environmental protest has also generated significant debate in criminal law, both through legislation and common law. In April 2022, the government passed the Police Crime and Sentencing Act 2022. The legislation gives the police and ministers broader powers to limit protest by enabling broad definitions of public nuisance and serious disruption and increasing penalties for certain protest related offences. In April 2023, the government passed into force the Public Order Act 2023, which among other things created new offences related to protesting, gave the police increased powers of stop and search, and enabled orders to pre-emptively ban individuals from participating in protests.

There have been several judgments concerning environmental protests. DPP v Cuciurean [2022] EWHC 736 Admin concerned trespass by a HS2 protestor.  The Court found that ECHR rights “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”. Attorney General’s Reference No 1 of 2022 [2022] EWCA Crim 1259 addressed the question whether protesters can rely on ECHR rights as a defence to allegations of criminal damage. In that case, protestors had, as is well known, pulled down the Edward Colston statue in Bristol and rolled the statue through the streets to Bristol Harbour where it was heaved into the water. The Court confirmed that the Convention does not provide protection to those who cause criminal damage during a protest which is violent or not peaceful, and accordingly articles 9-11 ECHR were not engaged. Moreover, prosecution and conviction for causing significant damage to property, even if inflicted in a way which is “peaceful”, could not be disproportionate in Convention terms.

Attorney General’s Reference (No.1 of 2023) [2024] EWCA Crim 243 concerned the use of the defence of consent in criminal damage cases arising out of protests. The Court of Appeal in their judgment found that “circumstances” in the phrase “the destruction or damage and its circumstances” in section 5(2)(a) of the Criminal Damage Act 1971 do not include the merits, urgency or importance of the matter about which the defendant is protesting, nor the perceived need to draw attention to a cause or situation. Therefore, this judgment appears to limit the type of arguments that can be made about the circumstances of the damage when relying on the statutory defence of lawful excuse for the purposes of the offence of criminal damage.  

Conclusion

Environmental protest has created new and difficult tasks for lawyers and the Courts, both in the civil and criminal sphere. There is inevitably a balance to be struck between protecting freedom of speech of protesters with the interests of the landowner or Claimant (who may be a body providing transport or energy to the country or responsible for managing and operating transport infrastructure such as roads and motorways) whose operations are being obstructed. As “persons unknown” injunctions are undoubtedly a novel concept which have the potential to restrict the rights of a large number of people, the Courts have set out procedural safeguards. For example, Mr Justice Ritchie in Valero described them as a “nuclear option” to be used only where there are strict safeguards. The criminal sphere has arguably gone much further. This is largely due to the confluence of developments in both legislation and the common law. Although cases such as Cuciurean and AG’s Reference No 1 adopt a narrow application of Convention rights and limit the availability of the defence of “lawful excuse” in the case of protest, it is the increased criminal penalties in legislation that has dramatically narrowed the scope of protest in England by increasing the breadth of available criminal offences against those engaging in environmental protest.

Mark O'Brien O'Reilly is a barrister at Francis Taylor Building. The content of this post was originally presented at the University College Cork's Centre for Law and the Environment annual conference in April 2024. He was assisted in preparing the talk by Gabriel Nelson, also a barrister at Francis Taylor Building.