Defence argues police order at anti-fracking protest was illegal and campaigners should be acquitted

4th April 2014

Section 14 trial: Day five
A group of anti-fracking campaigners on trial for failing to comply with a police order should be acquitted because the order was illegal, their barristers claimed today.

The group of nine campaigners were arrested on August 19th last year at a sit-down protest outside Cuadrilla’s oil exploration site at Balcombe. Four locked their arms together inside plastic tubes to form a square. The others either sat inside or next to the square. It is alleged they obstructed the highway and did not move to a protest area designated by the then deputy chief constable of Sussex under Section 14 of the Public Order Act. The protest area was on the verge and part of the road, north of the Cuadrilla site.

Tom Wainwright, summing up the defence at the end of the five-day trial, argued that the order which established the protest area was illegal for a number of reasons. The deputy chief constable was not the right person to impose the order. It should have been the senior police officer on the ground. The order referred to assemblies but in law could apply only to a single assembly underway at the time. The order was in force during the period of the No Dash for Gas climate camp from August 16th-21st, Mr Wainwright said, but the legislation did not envisage a blanket order. It was also applied retrospectively, because it was signed at 3pm on August 16th but applied from 1pm on that day.

“Interference with human rights”
Mr Wainwright said the order was an interference in the freedoms of speech and assembly given under Articles 10 and 11 of the European Convention of Human Rights. To be lawful, Mr Wainwright said, any interference in these rights needed to be understandable. He said the order was vague, unclear and ambiguous. “If people cannot understand the order they cannot make a decision on that information.”

He also argued that the location of the designated protest area made the protest pointless. “That is a huge interference in the Article 10 and 11 rights. It would need to an extremely strong justification for these conditions to be upheld.”

Although the order covered the period of 16th-21st August, it was in force only on August 19th. Mr Wainwright said: “Someone who was given a notice about the order on 19th August, who had been present on the 18th, would be utterly confused”. Owen Greenhall, another defence barrister, said: “It was impossible to tell if the conditions would be imposed to people who sat down in the entrance for half an hour.” People needed to be able to regulate their behaviour in accordance with the order, he said.

Shahida Begum, also defending, said no notices had been put up at the site about the designated protest area. There was no barrier or cordon around the area. “It would be unfair in these circumstances to suggest that it was up to individuals to go and find out where it was. It is clearly the responsibility of the police to inform members of the public”.

The order said the designated protest area was confined to the “northern most edge of the gateway” to the Cuadrilla site. Mr Wainwright said there was no definition of “northern most edge”. He said a map attached the order did not help. It was upside down, he said, with no north sign or arrow. A line on the map marking the boundary of the protest area went along the edge of the driveway. “On one view they [the campaigners] were in the designated area.” The description, he said, was not clear enough to convict.

Mr Wainwright also argued that implementation of the order was arbitrary. Superintendent Jane Derrick, the officer responsible for tactical planning at the protests, had given evidence that she intended that people who were linking arms would be moved to designated area and released. Only people who actively resisted would be arrested. Mr Wainwright said other people had been removed from the site entrance and then de-arrested. “This was a peaceful protest”, he said, and the demonstrators did not actively resist.

Necessary and proportionate?
For the order to be lawful, the deputy chief constable who made the order, needed to have a reasonable belief that it was necessary and proportionate. During his evidence, the then deputy chief constable had argued there were four reasons for the order:

  • Serious risk of public disorder
  • Serious risk of damage to property
  • Intimidation of staff
  • Serious risk of disruption to the community

Risk of public disorder and damage
On the serious risk of public disorder, Mr Wainwright challenged the word “serious” and said the risk would arise only if there was an incursion onto Cuadrilla’s site. “The Deputy Chief Constable failed to read the tactical plan which assessed the risk of public disorder as low”. There were to be no deliveries to the site during the period of the order and there would be minimal staff on duty. “The tactical plan also undermined the risk of incursion because it referred to increased security”, Mr Wainwright said.

Police intelligence mentioned by Superintendent Derrick referred to people attending the climate camp who had the capacity to enter the site. “That was six individuals”, Mr Wainwright said, “out of hundreds expected to attend.” Mr Wainwright also said it was “fanciful” that the Section 14 condition would prevent people entering the site, particularly because the designated protest area was alongside the site perimeter.

On the risk of serious damage, Mr Wainwright said this was also not reasonable because it relied on the risk of incursion. “The Section 14 order added nothing to existing powers that police already had. Imposing a condition on hundreds of people because of six individuals was not proportionate”, he said.

Intimidation and disruption
Responding to the argument about intimidation of Cuadrilla’s staff and contractors, Mr Wainwright said there had not been a Section 14 order imposed before the climate camp and its powers would not prevent intimidation during the camp. In addition, he said the condition of the designated protest area was too broad. It could have been confined to the staff change-over times at 7am and 7pm.

The deputy chief constable had referred in his evidence to disruption in Balcombe and along the railway line. This was post-hoc rationalisation, Mr Wainwright said. The biggest disruption to the community came from closing the road. And imposing the Section 14 order itself closed the road.

The prosecution case also mentioned the need for 24-hour emergency access to the site for Cuadrilla to comply with its regulations. “We know they didn’t stop work on August 19th”, Mr Wainwright said, “even though there was no emergency access”.

Knowledge of conditions
Mr Wainwright said in order for the demonstrators to fail to go to the designated protest area they would have to know where it was. It is not true to say there is an obligation on the demonstrators to make enquiries.

Police officers had given evidence during the trial that they made announcements to the demonstrators. But Mr Wainwright said they had not said what the Section 14 area was or where it was. They had also not given out paper notices to the group. And some of them had not said it was Section 14 of the Public Order Act.

Obstructing the highway
Miss Begum said it was not obvious that the entrance area was part of the highway. It had a different surface and looked like a driveway. Several people, she said, thought it would be safer to be in that area, rather than on the road, or the verges, which were filled with tents.

Mr Wainwright said there were two questions over this charge: did the campaigners know the driveway was the highway and did they know it was to be in use? During the climate camp, Cuadrilla had announced it would not be drilling. Mr Wainwright said the protest had been going on for five hours and the police had tolerated it and done nothing about it. “Nothing changed to move this protest from reasonable to unreasonable”, he said. “The defendants all believed what they were doing was reasonable.”

The campaigners who appeared in court were: Katie Brown, 34, Luke Evans, 34, and James Jones, 19, all from Liverpool, Camille Herreman, 26, and Matthew Whitney, 30, both of Nottingham, Phillip Cawkwell, 52, of Ascot, Barry Slipper, 47, of Hythe, and Kim Turner, 57, of Brighton. Chris Seal, 30, of London, was also on trial but failed to appear in court. They were all charged with obstructing the highway. All except Mr Cawkwell were also charged with failing to comply with a police instruction imposed under the Public Order Act. They all deny the charges.

The judge is expected to give his verdict on Monday.

Prosecution summing up


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