THE anti-fracking lobby has suffered a blow against its direct action activities after a High Court judge this morning upheld temporary injunctions awarded in favour of shale gas explorer INEOS in July.
In his 47-page judgement (which can be downloaded at the bottom of this post) the Honourable Mr Justice Morgan rejected almost all the argument of the defendants – “persons unknown”, and two named defendants including Liverpool University student Joe Boyd – that any direct action-style activities should be dealt with by criminal law on a case-by-case basis; and that the temporary injunctions amounted to a breach of their human rights.
Following the judgement, 44-year-old Boyd said:
“What INEOS has obtained from the Court today is profoundly troubling, it allows for an unprecedented restriction on our fundamental rights. The removal of the harassment aspect of the injunction is an important victory for us but the rest of the injunction cannot be left unchallenged and we will be filing an application for permission to appeal.”
Mr Justice Morgan said the body of evidence he had sifted through prior to this morning’s judgement included more than 40 witness statements, several hours of video footage, and a core bundle of five Lever Arch files accompanied by a further 23 Lever Arch files of exhibits.
The only success for the anti-fracking lobby is that an earlier order covering “harassment” of INEOS staff, and those of its suppliers, should be excluded from the revised injunctions on the grounds that it is difficult to define “harassment” in law – but Mr Justice Morgan gave leave to INEOS to apply for a future injunction against harassment if it is able to demonstrate “the need for such an order in addition to the other orders which are in force”.
The judgement also sheds some light on Mr Justice Morgan’s decision to grant INEOS the original ex-parte (behind closed doors) injunctions in July – he feared that not to do so would “tip off” the anti-fracking lobby that such an injunction was imminent and that its protest activities would be stepped up as a result.
“The Defendants say that I was misled on the ex parte application into believing that an interference with Ineos’s rights was so imminent that it was appropriate for Ineos to apply to the court on an urgent ex parte basis. In fact, I did not grant the injunction ex parte on the basis of alleged urgency. I did not form the view that the order had to be made on 28 July 2017 and could not wait for a day or so to allow the Defendants to be given notice of the hearing. Instead, I took the view that the giving of notice of the application to the Defendants would tip them off as to what might happen at a hearing of the application which might have led them to take some of the action which the injunctions which were sought were intended to prevent.”
The outcome means that shale gas explorer INEOS continues to be protected by the existing temporary injunctions that effectively prohibit all forms of direct action – including lock-ons and “slow walking” – “provided that they can be expressed in clear terms”.
In handing down his judgement Justice Morgan said:
“The Defendants [persons unknown, Joe Boyd and Joseph Corre] submit that this is not a proper case in which the court should intervene by granting interim injunctions. It is said that the civil courts should leave it to the criminal law and to the police to deal with any criminal behaviour which arises. Put that way, I am not attracted to that submission. The fact that the same conduct might involve criminal offences as well as wrongdoing which is actionable in a civil court is not usually a reason to deny a claimant in a civil court an injunction to restrain interference with his legal rights. The detection and prosecution of alleged criminal offenders is generally left to public authorities but there is no reason for a civil court to deny to a claimant the advantages which ought to flow from the grant to it of an injunction. It was also suggested that if Ineos were granted injunctions that would complicate the position of the police and would result in Ineos being in a position to tell the police what to do and contrary to the wishes of the police. I do not see how that would be so. If the injunctions are complied with then the result ought to be that there would be less need for the police to be involved. If the injunctions are not complied with and the police are involved, then they will be free to form their own decisions as to the appropriate response to the situation as they find it. It is not appropriate for me to try to predict whether any injunctions which are granted will be obeyed. I was not asked to refuse to grant injunctions on the ground that they would not be obeyed and it would not be right to refuse relief on that ground. Equally, it is not appropriate for me to speculate as to the ease or difficulty which the Claimants would have in seeking to enforce any clearly expressed injunction.”
“I have held that there is an imminent and real risk that, in the absence of injunctions, the Defendants will interfere with the legal rights of the Claimants. Further, in the absence of injunctions, it is unlikely that the Claimants will receive any legal redress or compensation for the infringement of their rights. Ineos’s business activities are lawful. The Defendants wish Ineos to stop carrying on those activities and wish to put pressure on Ineos to stop. However, on my findings in this judgment, the Defendants’ means of putting pressure on Ineos involve unlawful behaviour on their part, including criminal acts. I have also held, applying section 12(3) of the Human Rights Act 1998, that it is likely that the court following a trial would grant a permanent injunction to restrain the interferences with the Claimants’ legal rights. The normal response of a court to this state of affairs would be to grant similar interim injunctions without further ado.”
The judgement is also specific about the nature of actions which will be subject to injunction, the majority of which involve slow-walking, chain-ons and lock-ons, and “lorry surfing”.
Mr Justice Morgan said:
“I consider that it is appropriate for any order to be more clear as to what is not allowed. I will restrain any obstruction which prevents the Claimants accessing the highway from any of their Sites, with the intention of causing inconvenience and delay. Given that there has been argument about slow walking on the highway, I consider that the injunctions should expressly state that walking in front of vehicles with the object of slowing then [sic] down and with the intention of causing inconvenience and delay is not permitted. Other activities which are not to be permitted are blocking the highway with persons or things when done with a view to slowing down or stopping the traffic and with the intention of causing inconvenience and delay. Similarly, I will restrain the climbing by protestors on to vehicles being used by the Claimants (which would be a trespass to such vehicles).”
Rosa Curling, a solicitor at law firm Leigh Day which represented Mr Boyd, said:
“Free speech is at the heart of any democracy. This case is about the right to protest, a right which has always been, and must continue to be, a fundamental aspect of peaceful political action in our society. Without the right to protest effectively, the ability of citizens to peacefully challenge injustices will be severely curtailed.”
More reaction and comment to follow.