Legal challenge against anti-protest injunctions goes to human rights court

In a first for the environmental justice organisation, Friends of the Earth has filed an application with the European Court of Human Rights (ECtHR), challenging the use of anti-protest injunctions in the UK.

This follows deep concern about the rapid and widespread increase in their use since 2017, which is having a chilling effect on environmental protest. 

These orders are taken out against unknown and unidentifiable defendants (“persons unknown”) instead of named defendants as is normal practice, thereby maximising the range of people who can be caught by their terms - even if they do not know about them, and face potential imprisonment, asset seizure and exorbitant cost consequences if they are found in breach.  

Anti-protest injunctions are a means for private companies and public authorities to effectively create their own, bespoke public order offences - instead of relying on the criminal justice system. These orders can and do have a chilling impact on peaceful, lawful protest, and have been used by companies like oil and gas exploration company Cuadrilla - which was at the forefront of efforts to exploit UK shale gas - to target anti-fracking protestors.  

Friends of the Earth’s appeal to the ECtHR follows a Supreme Court ruling in November last year over the use of injunctions that targeted both the Gypsy and Traveller communities and environmental protesters. The Supreme Court imposed significant constraints on their usage relating to Gypsy and Traveller communities, but it made clear that these constraints do not apply to anti-protest injunctions. This means that environmental protestors continue to be at risk from this parallel system of law enforcement [1].

Friends of the Earth’s case is the first time that an application relating to orders of this kind in the UK has been filed at the ECtHR.

The organisation believes that anti-protest injunctions obtained against unknown and unidentifiable defendants are fundamentally unfair and breach human rights safeguards under national law and our international human rights obligations.

Friends of the Earth’s application will centre on articles 10 and 11 (freedom of expression) and article 6 (right to a fair trial) of the European Convention of Human Rights.

There are great practical difficulties to challenging these anti-protest orders:

•   They are often obtained on a ‘without notice’ basis, meaning that the party seeking the injunction does not need to notify any defendants that it is making the application, as is normally required under the court rules. The effect is that the judge asked to grant the injunction will often only hear arguments in favour of the order being granted; rather than any arguments in opposition. 
•   Fighting these injunctions can be very or even prohibitively expensive. There are huge uncertainties over the availability of any cost protection, which can price people out of court – as has happened in the past to Friends of the Earth – or result in enormous cost liability if someone decides to participate in proceedings anyway.  

Sentencing for breach of an injunction is often more severe than the equivalent offence under the criminal law, and there can also be huge cost consequences. One HS2 protestor was ordered to pay costs of £25,000 for breaching their injunction [2].

The use of anti-protest injunctions is part of a wider landscape of increasing criminalisation of protest generally within the UK; the Police Crime Sentencing and Courts Act is another example, which restricts the right to peaceful protest and puts people who take part at greater risk of prosecution.  

Friends of the Earth lawyer, Katie de Kauwe, said:  

“We believe that the increasing use of anti-protest injunctions breach our fundamental rights and stifle peaceful, lawful protest.  

“Protest through history has been a powerful means to achieve positive change in this country and throughout the world, from the women’s suffrage movement to the dismantling of apartheid in South Africa.

“With the climate crisis spiralling out of control, it’s disturbing that both private companies and public authorities are putting so much effort into preventing people from sounding the alarm, instead of intensifying efforts to build a cleaner future.  

“The European Convention of Human Rights is crucial to protecting the space for citizens to express dissent in a democratic society. We’ve done everything we can to uphold these rights in our domestic courts, so now we’re taking this issue to the European Court of Human Rights.

Global disputes-only law firm Hausfeld and barristers Garden Court Chambers assist Friends of the Earth with their legal application to the ECtHR.

Wessen Jazrawi, partner at Hausfeld, explains:

“The significant increase in the use of such injunctions – and the stifling of protest which results – is extremely concerning, in particular because ordinary people who are concerned about climate change and who take to the street to protest are unlikely to know they may be in breach of an injunction and at risk of severe consequences such as prison, high fines or even asset seizure. We are proud to be assisting Friends of the Earth on this important application to protect our democratic rights and resist the increasing criminalisation of the right to protest.”  

Stephanie Harrison, barrister at Garden Court Chambers, said:

“Friends of the Earth must be commended for their enduring commitment to defending the right to protest as a cornerstone of our democracy. Peaceful protest is vital to the success of environmental campaigning given the obvious need to continue to press the government and corporations to take the urgent action needed to protect the planet and local communities under threat in the UK and across the world from the climate crisis.”              

As well as its involvement in the Supreme Court legal challenge (above) Friends of the Earth has extensive experience of challenging these injunctions in the UK courts - particularly those taken out by fossil fuel companies.  

The environmental justice campaigners also intervened in a successful 2019 appeal against an injunction obtained by Ineos [3] and resisted UKOG’s injunction alongside six women known as the Sussex and Surrey 6 [4].  

ENDS

For more information and interview requests contact the Friends of the Earth press office on 020 7566 1649 or email [email protected].  

Notes to editors:  

1.  Supreme Court judgment on 'Persons Unknown' injunctions | Friends of the Earth briefing: https://friendsoftheearth.uk/system-change/supreme-court-judgment-persons-unknown-injunctions#:~:text=Friends%20of%20the%20Earth%20and%20Liberty%20have%20responded,Families%20and%20Travellers%20and%20Derbyshire%20Gypsy%20Liaison%20Group.  
2.  The Secretary of State for Transport & Anor v Cuciurean [2022] EWCA Civ 661 (16 May 2022) (bailii.org) 
3.  Anti-fracking campaigners win legal victory against energy giant Ineos over ‘draconian’ injunction | Independent: https://www.independent.co.uk/climate-change/news/fracking-court-appeal-ineos-injunction-fossil-fuels-friends-earth-a8852336.html 
4.  Fighting back: defending the right to protest | Friends of the Earth briefing: https://policy.friendsoftheearth.uk/insight/fighting-back-defending-right-protest
5.  Why we must protect our right to protest | TEDxLondon talk by Miriam Turner, co-executive director Friends of the Earth: https://www.youtube.com/watch?v=FGWeeIdr880 
6.  Friends of the Earth is represented in these proceedings by Stephanie Harrison KC, Stephen Clark and Fatima Jichi of Garden Court Chambers and by Wessen Jazrawi at the law firm Hausfeld.