Challenge to INEOS injunction outside the High Court, 31 October 2017. Photo: DrillOrDrop

The UK’s biggest shale company has collected hundreds of Facebook posts and tweets, running to more than 3,000 pages, in support of its injunction against anti-fracking protests.

INEOS Shale gave details of some of the posts and messages at a hearing at the High Court today. It was seeking to continue the injunction first granted at a private hearing in July.

The company was making its case that the order was needed because it said there was “a real and imminent threat” of being targeted by unlawful protests. It told the court the injunction was needed because “the damage would be done” if it didn’t have the protection of the court.

The injunction covers INEOS sites and properties, proposed traffic routes, activities of its staff and contractors and premises belonging to its supply chain.

People who breach the injunction could be found in contempt of court and face prison or seizure of their assets, INEOS has said.

The hearing, which is expected to last three days, follows a challenge by two anti-fracking campaigners: Joe Corre, son of the fashion designer Vivienne Westwood, and Joe Boyd.

Their lawyers argue that the injunctions should never have been granted and should now be discharged or not renewed. They will say the injunction is an unlawful interference with the rights to freedom of expression and assembly under the Human Rights Act.

“Evidence of treat, damage and harassment”

Janet Bignell QC, for INEOS, said 22 videos submitted to the court provided evidence of harassment, threats, trespass and damage to company property.

She read large numbers of online messages, collected from Twitter, anti-fracking Facebook groups and websites.

A message “We’ve got pallets” was, she said, evidence of a direct threat that protesters would establish a camp and build structures from pallets.

Messages identifying INEOS vehicles in local car parks were, she said, “a clear threat to employees and criminal damage to vehicles.

Taking photos of the INEOS team was, she said, evidence of attempted harassment.

Ms Bignell also referred to messages in which people said “Set the dogs on them” and “A 12-bore would be better” as evidence of a risk to staff.

“Not curtailing lawful protest”

This morning, INEOS’s other QC, Alan Maclean, said the company was seeking to continue its interim injunction to prevent interruption of its activities across the country by anti-fracking protesters.

Mr Maclean said

“My client is concerned about the ability to conduct their lawful business. We are not interested in attempting to curtail lawful protest.”

He said the injunction order did not prohibit anything that was lawful.

He acknowledged that protesters had the right to freedom of expression and assembly, under Articles 10 and 11 of the Convention of Human Rights. But he said they must be balanced against INEOS’s right to enjoy its property and possessions without interference. He said:

“It is extremely rare that Articles 10 and 11 can override property rights.”

Mr Maclean said INEOS had provided evidence of examples of peaceful lawful protest that would not be covered by the injunction.

“There is absolutely nothing to prevent defendants from carrying out their protests lawfully and effectively elsewhere and/or by other means that do not involve interfering with the rights of the claimant and breaching domestic law.”

Slow walking protests

The judge, Mr Justice Morgan, suggested that a key issue for the injunction was the protest tactic of slow walking, where campaigners walk slowly in front of a lorry delivering to a site. Some police forces have facilitated slow walks and some courts have acquitted campaigners arrested for allegedly obstructing the highway during these protests.

The judge put it to Mr Maclean:

“Obstruction could be reasonable and would not be an offence”.

Mr Maclean replied:

“It is very hard to see why that type of slow walking could ever be said to be anything other than obstruction of the highway.”

He said:

“The extent of the interference that anti-shale gas protest tends to cause with the rights of others – not just my clients – but the industry and suppliers, other members of the public, is significant.”

But slow walking has been defended in a witness statement, expected to be heard tomorrow, from the MP Caroline Lucas. She said a constraint on slow walking was “extremely worrying and detrimental to our democracy”. She said:

“Reasonable obstructions of the highway, such as slow walking and peaceful protests are legitimate tactics in the anti-fracking and other political and civic movements.

“Slow walking has become a particularly important form of protesting in the anti-fracking movements across the UK.”

Opponents of the injunction have argued that protesters, who obstruct the highway, could face a conditional discharge if found guilty in a criminal court. But they could have their assets seized or go to prison if found in contempt of court for breaching the injunction.

The judge said:

“The courts should be thoughtful about the way its order may be used. If I give an order that is going to give rise to contempt proceedings that may be judged to be undesirable. An infringer could go to prison for two years, while a magistrate would deal with obstruction pretty reasonably.

“I should be alive of the consequences of what I do.”

Persons unknown

The injunction applies to several different categories of “persons unknown” across eight named properties and plots of land, as well as other unidentified sites across the country.

The judge described how a person who was not covered by the injunction would do so immediately they stepped off a footpath onto a piece of land referred to in the order.

He put it to Mr Maclean:

“It is a remarkable state of affairs. The general rule is that you name a defendant, who becomes a party. The order is made against the person and he or she knows they are not allowed to do this and if they do it there will be consequences.

“You’re not saying specifically what is prohibited or not, so there’s uncertainty about what is allowed or not – is it unreasonable or not?”

Mr Maclean replied:

“It is entirely justified when you have a developing section of industry which is lawful, controversial, of significance economically, which is opposed root and branch by well-organised protesters who have shown themselves not always to be respectful of private property boundaries.”

Disclosure duty

The challengers to the injunction have also argued that INEOS failed to give information to the judge that they should have done.

They said INEOS Shale’s Operations Director, Tom Pickering, had “unfairly characterised the nature of opposition to hydraulic fracturing”. He is also alleged to have over-stated the extent to which a “scientific consensus” that hydraulic fracturing is safe exists and failed to make clear that the exhibits he identified as supporting his proposition were INEOS’ own publicity material.

Mr Maclean denied there had been a breach. He said:

“The duty of candour is not to be applied in a disproportionate, unrealistic or unduly stringent manner, such as would make its discharge impossible to achieve in practice.”

Tomorrow the court will hear from lawyers for Joe Boyd and Joe Corre. They will argue that the injunction is:

• Not prescribed by law or necessary in a democratic society
• Conduct is prohibited already under criminal law
• Need has not been convincingly established by evidence
• Injunctions have to date failed to prevent any alleged criminality.

The case is expected to continue until Thursday.

Reports from day 2 and day 3 of the injunction hearing

This report was made possible by donations from individual readers of DrillOrDrop