8 July 2020
RED Alert - Summer 2020 – 1 of 4 Insights
Three protestors against fracking were given suspended prison sentences for contempt of court after breaching an injunction against "persons unknown" restraining certain forms of protests at and around a fracking site. One part of the sentence was reduced on appeal. The Court of Appeal made clear that the right to peaceful protest was relevant when considering the sanction to impose for breach of injunction order.
Cuadrilla was engaged in the business of "fracking", the controversial process of shale and gas extraction by fracturing rock formations at a site near Blackpool.
There had been a long history of protests at this Cuadrilla site starting in around 2014. This led to protesters occupying the site before any drilling works commenced. An order for possession and an injunction prohibiting further trespassers was granted until October 2016. Drilling then commenced in January 2017 and the protests intensified and 350 arrests were made up to May 2018.
The lead to a further application for an urgent temporary injunction which was granted on 1 June 2018 to restrain four named individuals and “persons unknown” from trespassing on the claimants’ land, unlawfully interfering with the claimants’ rights of passage to and from their land and unlawfully interfering with Cuadrilla’s supply chain. The temporary injunction (known as an interim injunction) was then made permanent at a subsequent hearing and was to continue until 1 June 2020.
However that was not the end of the matter. On 24 July 2018 (the July Incident), the three appellants (with others) lay down on the road leading to the site entrance for a period of 6.5 hours before being removed by the police. On 3 August 2018 (the August Incident), one of the Appellants, Ms Lawrie, stood in the path of a lorry en route to the site causing it to veer onto the other side of the carriageway. There were also some other further minor breaches of the injunction.
Given the terms of the injunction, Cuadrilla applied for a committal order against the three appellants, essentially asking the court to send them to prison for contempt of court.
A person is guilty of contempt of court by disobeying a court order that prohibits particular conduct only if it is proved beyond reasonable doubt (ie the criminal standard of proof) that the person:
After a four day hearing in June 2019, the appellants were found guilty of contempt of court. In terms of sentencing, the judge recognised that the breaches were committed as part of a protest but was not persuaded that this should result in lesser penalties.
As punishment for two deliberate breaches of the injunction, the judge imposed a suspended sentence of four weeks on all of the protestors for the July Incident and a further two months for Ms Lawrie in respect of the August Incident. The committal order was suspended on condition that each obeyed the injunction for a period of two years. So in effect there was no immediate custodial sentence.
The protestors appealed against the committal orders on the grounds:
The first ground concerned the use of the word "intention" in two sections of the injunction order. The appellants argued this introduced uncertainty because they made the question of whether conduct was prohibited dependent on the person's intention. For that reason, a committal order was inappropriate. The Court of Appeal rejected this argument and held that there was no real legal meaning of the word "intention" in this context and so a member of the public should be able to understand what it meant.
In relation to the second ground, the Court of Appeal accepted that in deciding on the sanction, the judge was wrong not to have regard to the fact that the breaches were committed as part of their right to protest. However, that fact did not protect those breaching the order from the sanction of imprisonment in appropriate cases.
The Court of Appeal upheld the suspended sentence for four weeks for the July Incident but reduced the suspended sentence for the August Incident from two months to four weeks given its impact had been slight.
It had already been established by the Court of Appeal in Ineos Upstream Ltd v Persons Unknown  4 WLR 100 that an injunction of this nature could be made against persons unknown at the time and then enforced against named individuals. This has not always been clear and so this case demonstrates the application of this principle. Conversely, the case supports the right to protest and the ensuing remedy that might be sought by those seeking to punish protestors. In any event, the protestors' efforts did not go unrewarded as the government announced a moratorium on fracking on 2 November 2019.
by Saleem Fazal
by Emma Archer
by multiple authors