Anti-fracking campaigns have won a legal challenge to an injunction granted to the shale gas company, Ineos Upstream.
Three law lords this morning granted an appeal brought by Joe Corre and Joe Boyd.
In a reserved judgement, Lord Justice Longmore, Lord Justice David Richards and Lord Justice Leggatt ruled that sections of the injunction, first granted in July 2017, were unlawful.
The case could have implications for similar, injunctions granted to four more oil and gas companies.
The original injunction prevented “persons unknown” from trespassing on or obstructing access to eight shale gas sites and company offices. It also prohibits people from combining together to commit unlawful acts “with the intention of damaging” Ineos or any other companies in its supply chain.
Today, the court of appeal struck out the sections applying to protests on the public highway, including slow walking protests, climbing on to vehicles and blocking the road. It also removed the section on protests against the supply chain.
The ruling said:
“The concept of slow walking in front of vehicles or, more generally, obstructing the highway may not result in any damage to the claimants at all” .
It questioned the lack of precision in the prohibition of slow walking, asking
“how slow is slow? Any speed slower than a normal walking speed of two miles per hour? One does not know”,
“A person faced with such an injunction may well be chilled into not obstructing the highway at all.”
The ruling said the High Court order was “both too wide and insufficiently clear”. It said:
“The citizen’s right of protest is not to be diminished by advance fear of committal except in the clearest of cases.”
The sections on trespass and private rights of way were maintained in the injunction for the time being. But the law lords ruled that the High Court had applied the wrong test in approving this part of the order. The ruling said there was no time limit on the order and this was unsatisfactory. It added:
“The [High Court] judge has held that the threat of trespass is imminent and real but he has given little or no consideration … to the question whether that is likely to be established at trial.”
Ineos was ordered to go back to the High Court so that these sections could be assessed against the Human Rights Act.
The law lords did not accept the campaigners’ arguments that the injunction should not have been brought against “persons unknown”.
Outside the court, Joe Corre said:
“Ineos painted ordinary people as dangerous fanatics. This result has restored my faith in the justice system. I was always appalled that Ineos was able to bring this case in a secret court.
“It shows they cannot pick on ordinary people because we will stand up and defend ourselves.”
Referring to a new Ineos motto (I came, I bought, I conquered), Mr Corre said
“Ineos tried to buy the law and they lost. They have not conquered anything.”
Joe Boyd said:
“We are delighted. This has been a campaign about people power.”
He paid tribute to the legal teams and barristers who took the case for “their approach to human rights, with freedom of expressions at the heart of all arguments, and those who have faith in me as the rights of a person to act freely under consciousness.” Mr Boyd dedicated his win to the campaigner, Polly Higgins.
Rosa Curling, solicitor at the law firm, Leigh Day, which represented Mr Boyd, said:
“Our client is delighted with his victory in the Court of Appeal today. The pre-emptive injunctions ordered by the High Court were unprecedented in their scope and undermined the protections of civil liberties and human rights in the UK. The rights to freedom of expression and peaceful protest are crucial in any democracy. That includes unruly, potentially disruptive protests.
Friends of the Earth, which intervened in this case, said the decision marked a turning point in the use of injunctions against fracking protests.
The organisation’s in-house lawyer, Katie de Kauwe, said:
“This is a massive victory for civil liberties and human rights across the country.
“It has knocked the teeth out of the Ineos injunction restraining what it called unlawful protest.
“Its impact will also extend to the injunctions obtained by other fracking companies.”
“Friends of the Earth is so proud to have been part of this legal action.”
Dave Timms, head of political affairs at Friends of the Earth, said:
“This is a humiliating defeat for INEOS and a victory for campaigners and human rights. We believe that these injunctions are a sinister attempt to use the law to stop peaceful protest against the fracking industry. The ruling today confirms our view that INEOS’ injunction was wrongly granted and unlawfully stifled protest. Wherever fracking is attempted it meets fierce resistance by local communities. The Court of Appeal today stood up for their right to peaceful protest and free speech.”
Friends of the Earth said it would now write to other firms granted similar anti-protest injunctions informing them that they should withdraw or substantially amend them or face possible legal action.”
Stephanie Harrison QC, who represented Mr Corre, said:
“Today’s judgement recognises the serious chilling effect of the INEOS injunction on civil liberties, particularly the broad, sweeping terms of the injunction against wide categories of persons unknown.
“The outcome of this case serves to underline the importance of the Human Rights Act 1998 as a safeguard for fundamental freedoms like free speech and the right to protest. These rights are the life blood of our democracy. This judgement makes clear that the Court will intervene to prevent powerful companies like INEOS using draconian injunctions to intimidate and deter people from participating in lawful protest against fracking, which is widely seen by campaigners and local people affected to be dangerous and damaging to the environment and their communities.”
Ineos chief operations officer, Tom Pickering, said in a statement:
“We welcome the Court of Appeal’s decision to uphold our injunctions protecting people on and around our sites. We only secured these injunctions because we are determined to project our people and suppliers, as well as the communities we work in. We are talking with our legal team about our next steps, because we believe it is essential that the forces of law-and-order prevail.”
“We will always do all we can to protect our colleagues, suppliers and peaceful, law-abiding local people. We respect peaceful protest, but we must stand up to the militants who game the legal system with intimidation and mob rule. We stand for jobs and opportunity. They stand for anarchy in the UK.”
Ineos had argued that the injunction was necessary to protect the locations against what it said was “a real threat of interference from protests”. The company denied it prevented the peaceful right to protest.
But at a court hearing last month, Mr Boyd and Mr Corre argued that the terms of the injunction unlawfully breached human rights.
They said the injunction was “unprecedented, wide-ranging, unclear, unfair and based on exaggeration and untested evidence”.
Heather Williams QC, barrister for Mr Boyd, described the injunction as “novel, uncertain, unnecessary and disproportionate”
She said it exposed
“a significant number of people to serious penalties for freedom of speech and protest-related activities and is already having a serous chilling effect.”
She said Mr Justice Morgan, the High Court judge who granted the injunction, had failed to distinguish between lawful freedom of expression and assembly, protected under the Human Rights Act, and unlawful activities. He also failed to acknowledge that the evidence had been disputed at an earlier challenge to the injunction, she said.
Stephanie Harrison QC, for Mr Corre, said of the injunction:
“It is having an impermissible and severe chilling effect on the right to free speech and to protest. It is an unlawful interference with those rights.”
She said the injunction had been used as a template for similar orders granted to four other oil and gas companies,:Cuadrilla, IGas, UK Oil & Gas and Angus Energy.
Alan Maclean QC, for Ineos, said the injunction followed legal precedence and “contains no error of law”. He said the conclusions of Mr Justice Morgan were “not impeachable on appeal”.
“There is no violence done to the rules. No injustice has been done to any individual.”
Mr Boyd and Mr Corre both brought appeals against the use of “persons unknown”. Mr Boyd also appealed on the grounds that the injunction should not outlaw protests against Ineos’ supply chain and Mr Justice Morgan had failed to assess Ineos evidence in the light of the Human Rights Act.