be an unlawful activity under the Air Navigation Order 2016 (SI 2016/765), which prohibits drone flights that endanger p
FOCUS DISRUPTIVE PROTESTORS Minimising the damage In recent years, a number of high-profile campaign groups have carried out protests which have had a significant impact on those whom they are targeting. From anti-fracking and environmental causes, to Occupy London and wage protests, the range of causes which these groups have promoted through protest tactics is ever broadening. It is not just the businesses that are directly involved in activities to which the protestors object that could be in the line of fire. Contractors and customers of businesses have often found themselves the target of secondary protest. In an age of social media, individuals coalescing around a common cause can plan and mobilise quickly, and coordinate disruption across multiple locations simultaneously and with little warning. All this adds up to the potential for significant disruption to business and a risk to reputation that few businesses can afford to ignore. It also means that matters can escalate quickly so understanding the options for protecting the business will be important if the various risks are to be effectively managed (see box “Practical points”). Injunctions At its most basic, an injunction in this context is an order prohibiting unlawful activity. The fundamental aim of protestors is usually to disrupt the business with whose activities they disagree. The tactics used will almost inevitably therefore involve unlawful conduct, whether that is trespassing on private land, blockading the access to premises, obstructing the public highway or applying verbal pressure aimed at dissuading individuals from going to a site. Although issuing legal proceedings is unlikely to be the first tactic that the board will want to employ, in the right circumstances, it can provide the company with effective protection against disruption. It offers the possibility
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Drone use One current tactic used by protestors is to use drones as part of the campaign. Any incursion into airspace at a height which interferes with the reasonable enjoyment of property will amount to a trespass. Even at a greater height, however, it could still be an unlawful activity under the Air Navigation Order 2016 (SI 2016/765), which prohibits drone flights that endanger persons or property or within prescribed limits of congested areas or open-air assemblies. The use of drones is likely to become more heavily regulated in the near future. Following a consultation, the government has announced its intention to lay new powers before Parliament in spring 2018 (www.gov.uk/government/speeches/dronesupdate-27-november-2017).
of putting beyond doubt the specific scope of prohibited conduct in any particular protest scenario. It also puts any protestor who flagrantly and persistently ignores an injunction at risk of contempt of court. An interim injunction can be sought at the outset of legal proceedings, which will remain in place until full trial. At that point, a final, permanent injunction is then sought. The art of timing In principle, an injunction is available where there is a real and imminent risk of unlawful conduct occurring (London Borough of Islington v Elliott and others [2012] EWCA Civ 56). Once that disruption begins, the case for an injunction is therefore usually fairly clear. However, the position may not be as straightforward for a business that fears disruption, perhaps because it operates in a sector which is the focus of a campaign, but which has not yet experienced direct action. If an application is made too soon, the business runs the risk of being unable to persuade the court that an injunction is really necessary, which might cause reputational harm. An injunction is a discretionary remedy and a court’s willingness to grant one will always depend on the specific evidence
available in any case. However, the recent decision in Ineos Upstream Ltd and others v persons unknown and others indicates that, in the right circumstances, a court may be sympathetic to the concerns of a business that fears protestor activity and seeks the protection of an injunction before significant disruption occurs ([2017] EWHC 2945 (Ch)). Ineos has plans to pursue shale gas exploration using the process known as hydraulic fracturing, or fracking. So far, protestor activity against Ineos has been limited but other fracking companies have been the subject of significant protest events. The evidence was that the protestors objected to the whole industry, so what had happened to others in the past would be likely to happen to Ineos if an injunction was not put in place. The court said that this was sufficient to justify an injunction for Ineos. Ineos obtained an injunction initially without notice to the protestors. Without notice injunctions are always possible but are usually reserved for emergency situations. The rationale for granting one in Ineos was that, had the protestors been given notice of the application, it might have led them to take the very action that the injunction was intended to prevent.
© 2018 Thomson Reuters (Professional) UK Limited. This article first appeared in the March 2018 issue of PLC Magazine, published by Practical Law, part of Thomson Reuters (Professional) UK Limited, and is reproduced by agreement with the publishers.
Practical points Whenever the risk of disruption from protesters or campaign groups arises, the key to successfully dealing with the risks posed and minimising the disruption caused will be proactive planning. Self-help options. Proactively protecting sites will be the first line of defence if it can be achieved. Up-to-date records. A business will need to prove ownership of the sites that it wants to be covered by any injunction. The entity with the immediate right to possession is entitled to an injunction. Therefore, where land is leased, the tenant needs to apply. Being able to produce evidence of ownership quickly and identify if the support of other landowners is required will be important to obtain maximum protection. Formulate a plan. Establishing an effective structure for handling any protest situation will be critical to successful crisis management (see feature article “Planning for a crisis: and weighing up the risks”, www.practicallaw.com/7-503-2403). That means advance planning to establish clear lines of communication and decision making. It is important to understand who needs to be involved and in what capacity, whether that is consulting, informing or making decisions, so that decisions can be made effectively and communicated swiftly when a protest arises. A holistic approach. The organisation’s plan ought to consider the range of effects that protestor activity may be having on premises, the business’s reputation and staff. Engage with the police. The swift support of the police will always be useful and will be critical if matters escalate rapidly. Understanding and engaging with the command structure of the local police early is likely to be time well spent. Be prepared. If legal remedies ever need to be pursued, capturing and retaining relevant evidence will be important. Even if legal remedies are not being pursued, the board will want clarity on the magnitude of the problem to understand its options and the best tactics to employ. Capturing relevant information effectively will be critical, especially when matters escalate and feelings are running high. Taking some time so that everybody knows what and how information must be obtained will help a company to retain its options to escalate the response if necessary.
Prohibited activities Trespass on private land by protestors is clearly an unlawful activity justifying an injunction. In addition, evidence of trespass at one site will usually be enough to persuade a court that the risk exists across the organisation’s portfolio of properties. However, campaigner action is becoming ever more multi-faceted (see box “Drone use”). Identifying which activities cross the line between lawful and unlawful protests can sometimes be challenging.
For instance, slow walking down a road, lockons (where protestors attach themselves to each other or to an immoveable object to obstruct access) and lorry surfing (that is, the tactic of climbing onto a vehicle so that it becomes unsafe to drive) are all activities that usually take place on public land. Whether these activities can be prohibited by a civil injunction has therefore been a matter of some debate. Ineos confirms that if those activities effectively prevent free passage on the highway they will amount to an unlawful obstruction which can be prohibited by an injunction.
Ineos is the latest in a line of recent decisions which confirm that this sort of direct action goes beyond the lawful exercise of the right to freedom of expression and freedom of peaceful assembly under the Human Rights Act 1998 (City of London Corp v Samede [2012] EWHC 34 (QB); Appleby v United Kingdom (44306/98) [2003] ECHR 222). Harassment As well as physical disruption at a site, protesters sometimes adopt a strategy of harassing employees or contractors in order to dissuade individuals from engaging in the business of the target company. In those circumstances, the Protection from Harassment Act 1997 (1997 Act) may offer assistance to prohibit conduct amounting to harassment or intimidation. Any injunction under the 1997 Act would also carry with it an immediate power of arrest if breached, as opposed to the usual common law injunction where enforcement requires an application for contempt of court. Ineos illustrates, however, that it will not always be straightforward to obtain an injunction under the 1997 Act. The court in Ineos reflected on the difficulty of establishing the boundary between voicing strongly expressed views about a particular cause and harassment. It refused to grant an injunction against harassment because it concluded that, in the particular circumstances of Ineos, it was not possible to prescribe sufficiently precisely what conduct was, and was not, prohibited. Discouraging access Understanding what can be achieved by an injunction will be critical for the board to make informed decisions. Usually it will also want to consider whether it is possible instead to take practical action to resolve the problem. A landowner is entitled to use reasonable force to evict a trespasser from its land if the trespasser has been asked to leave and refused to do so (Green v Goddard (1702) 2 Salk 641). The devil is in the detail. What amounts to reasonable force is an uncertain concept which depends on the circumstances of the case. Excessive force will be unlawful and the perpetrator risks committing criminal assault. Therefore, direct action to evict protestors is usually a very high-risk strategy.
© 2018 Thomson Reuters (Professional) UK Limited. This article first appeared in the March 2018 issue of PLC Magazine, published by Practical Law, part of Thomson Reuters (Professional) UK Limited, and is reproduced by agreement with the publishers.
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However, taking action to dissuade potential trespassers from coming onto the site in the first place can be a more effective and less risky tactic. Considering ways of rendering premises difficult to access and as inhospitable as possible could be time well spent. Police intervention Police intervention may sometimes be possible. Very often, aspects of the protestors’ activity will amount to criminal conduct. For instance, protestors that trespass on the site and intentionally obstruct or intimidate lawful activity may be committing the offence of aggravated trespass under the Criminal Justice and Public Order Act 1994. Activities
that obstruct the public highway will be a criminal offence under the Highways Act 1980. The police have a duty to act to apprehend crime but they also have a discretion as to how to apply their limited resources. In practice, their approach can therefore vary, particularly where an activity constitutes both criminal and civil misconduct. The extent to which they are able or willing to become involved in the protest is likely to depend on the perceived severity of the behaviour and the degree of risk to public order or safety. If the police are willing to support or lead on a response to the protesters, that will usually
be an effective option for a business. Early engagement with police forces at the right level will therefore be an important part of an effective response strategy. The local authority could also have a role to play in resolving issues. For example, the local authority may have statutory powers to take action if some of the protestor activity is taking place on its land, such as verges of the public highway, or to move protesters on if they have established an encampment on local authority land. Alison Oldfield and Stuart Wortley are partners at Eversheds Sutherland (International) LLP.
© 2018 Thomson Reuters (Professional) UK Limited. This article first appeared in the March 2018 issue of PLC Magazine, 3 published by Practical Law, part of Thomson Reuters (Professional) UK Limited, and is reproduced by agreement with the publishers.
