27th February 2014

Two anti-fracking campaigners arrested at the Balcombe protests were convicted this week of the ancient act of besetting. Sussex Police tried to prosecute more than 20 others for the same offence. So is besetting making a comeback and could it be a threat to environmental campaigning?

Early on July 31^st last year, Natalie Hynde and Simon Medhurst glued their hands together around the gate to Cuadrilla’s site entrance as a symbolic reference to the Australian “Lock The Gate” campaign.

Their intention was to create a media spectacle that would raise awareness of fracking. Miss Hynde, the daughter of singers Chrissie Hynde and Ray Davies, believed the media would pay attention because of her family connections. And she was right. Their picture was on the front page of most national papers the next day and they were interviewed by several national broadcasters.

The campaigners were, however, also arrested. They were charged under the rarely used Section 241 of the Trades Union and Labour Relations (Consolidation) Act. It was alleged they beset Cuadrilla’s employees, contractors and suppliers. They denied the charge when they appeared before Brighton Magistrates Court.

There is no formal legal meaning of besetting. Its roots are in old English and its dictionary definition is: “to surround with hostile intentions, to besiege, to assail mentally, perplex, endanger with problems, temptations obstacles etc; to surround or set round with anything”. It was included in trades union legislation in 1992 but its use dates back much further and is not restricted to labour disputes.

Section 241, under which the anti-fracking campaigners were charged, covers “intimidation or annoyance by violence or otherwise”.

It says a person commits an offence if they watch or beset “the house or other place where that person resides, works, carries on business or happens to be” with a “view to compelling another person to abstain from doing or to do any act which that person has a legal right to do or abstain from doing”. To succeed, the prosecution has to prove a civil wrong as been committed, from which injury occurs to another.

The prosecution said that by blocking the gate, Miss Hynde and Mr Medhurst were compelling Cuadrilla’s staff, contractors and suppliers to not go about their lawful business. It said the delay prevented deliveries to the site and cost Cuadrilla £5,000.

Miss Hynde and Mr Medhurst argued they were exercising their right to expression under Article 10 of the European Convention on Human Rights and that there were alternative entrances to the site. But District Judge William Ashworth disagreed, saying “I am sure you did beset the Cuadrilla site by locking yourselves around the gate. Your intention was to slow the trucks. This went beyond what was reasonable for freedom of speech.”

During the protests against Cuadrilla’s oil exploration site at Balcombe, Sussex Police arrested a total of 30 people under Section 241. Of these, 25 people had the charges either dropped or changed, often to obstructing the highway. The remaining five, including Miss Hynde and Mr Medhurst, went on trial this month.

The others included Robert Basto, a 66-year-old software engineer, who locked himself to the top of a water tanker as it was leaving the site. Another, Jamie Spiers, 29, locked and glued himself to a tripod made from scaffolding poles which was set up in the middle of the road outside the site. Halfway through their trials, District Judge Ashworth ruled there was no case to answer and dismissed the charges. He said the prosecution had to show some proximity to the individuals allegedly being beset. “It causes me some problems with Mr Basto and Mr Spiers because they were not physically in proximity to the workforce. I would never become sure that your activities amounted to besetting.”

The fifth person, Nichola Sanger, handcuffed herself to the site gate at 5.20am and was cut free by police and security guards about 15 minutes later. She was found not guilty. District Judge Ashworth described her protest as “ham-fisted” and said “little if any impact took place.”

This week’s convictions are not the first time the charge of besetting has been used against environmental campaigners. About 15 years ago, solicitor, Mike Schwarz, represented a roads protester, Ivan Todd, who was successfully prosecuted on a Section 241 charge. On appeal (Todd versus the DPP, 1996), the High Court rejected the idea that Section 241 was limited to trade disputes and held there were no such restrictions.

However, in recent years besetting has much more commonly been used against secondary picketing rather than protesters. During the Balcombe protest trial, a police witness, PC Mark Cullen, said “I had not heard of it before this particular operation”. And Miss Hynde’s barrister, Srikantharajah Nereshraaj, said “I’ve been representing protesters (mainly anti-war, anti-fascist, student and environmental) for about five to six years and this is the first time that I or even people like Tom [a colleague] (whose been doing it for about 10 years) has come across its use.”

Mr Nereshraaj said “Besetting seems to have been an offence that for some years fell out of fashion. It was used a lot in the 1980s in the context of prosecutions during the miners’ strike and other trade union disputes, such as the print workers. It also seems to have been used in the context of stalking and harassment cases, prior to the legislation in the late 1990s that was specifically designed to tackle this issue.

The significance of Section 241 for environmental campaigns may lie in its maximum penalty.  Miss Hynde was given a 12-month conditional discharge and Mr Medhurst was fined £200 but the maximum available to the judge was six months in prison and a fine of £5,000.

Mr Nereshraaj said he was concerned that the convictions might embolden the police to start charging this offence more routinely and against a larger number of protestors. “The danger is that unlike offences, such as obstructing the highway, for which the maximum penalty is a fine, this offence carries a maximum penalty of six months imprisonment.”

He said arrests under Section 241 could have other implications “It might be a mechanism for the police and the Crown Prosecution Service to ask for the imposition of more onerous bail conditions on protesters arrested/charged with the offence”. He said these could include exclusions from protest zones, which might have been regarded as disproportionate if imposed for less serious offences such as obstruction of the highway.

The barrister’s concern could be well-placed. At Balcombe, the first group of people arrested under Section 241 received police bail conditions that excluded them from a 25 square mile area, including the main railway line from Brighton to London. The bail conditions were soon challenged and dropped, but this was probably because the people involved were represented by a firm of solicitors that was experienced and confident in protest law.