Briefing: our case in the European Court of Human Rights

Summary

• In March 2024, Friends of the Earth (England Wales and Northern Ireland) filed an application on protest rights to the European Court of Human Rights. This is likely our most important civil liberties case to date. Democratic freedoms are increasingly under attack in the UK (see this TED X talk by Friends of the Earth), as well as in other signatory states to the European Convention of Human Rights (the Convention).
• Our application concerns anti-protest “persons unknown” injunctions. These civil law orders, which apply to anyone in the world, are being sought in the UK by a host of private companies and public authorities. They’re obtaining, in effect, their own bespoke public order laws, and bypassing the criminal justice system.
• We’re concerned by these injunctions’ intrinsic unfairness, the punitive cost consequences people can face when challenging them (if they lose the case, they can be ordered to pay the other side’s legal fees which can come to tens of thousands of pounds), and the severe penalties for people found in breach of their terms. Their use was strongly criticised by a UN Special Rapporteur in January 2024 [PDF].  
• We argue that these injunctions breach the Convention through Articles 10 and 11, concerning freedom of expression, and Article 6, concerning the right to a fair trial. These rights are vital given the importance of protest to advocate for action on the climate and nature crises, especially when governments are not doing enough. Our case can help protect these rights.
• This application is the culmination of Friends of the Earth’s work over the last 8 years resisting anti-protest injunctions, mainly obtained by the oil and gas industry, in the UK courts. We’ve filed this case following the Supreme Court’s ruling in the Wolverhampton case (in which we intervened), which we believe did not properly engage with the human rights issues intrinsic to these injunctions. 

What's the case about?

The case concerns the protection of a core aspect to a democratic society: the right to protest. We believe this right is severely threatened by “persons unknown” injunctions, which are frequently obtained to target environmental protestors.  

Injunctions are orders granted by a judge that prohibit specific behaviour. Normally, they (like any other type of court order) must be sought against identified individuals. That’s important for procedural fairness as it ensures that the defendant knows about the proceedings and can defend themselves against them. However, persons unknown injunctions are being granted against unnamed defendants whose identities are unknown at the time that the order’s granted. Instead, they’re defined only by the actions which are prohibited by the injunction (for example, entering a specified area of land without permission, or obstructing access to or from a site).

As an environmental justice organisation, Friends of the Earth is committed to undertaking peaceful, lawful protest, and to upholding the right of people to peacefully express dissent. Protest is an essential mechanism (among others) to build pressure on politicians to take the action necessary to combat the climate and nature crises. As things stand, the UK government is failing woefully to address either. Protest, however, has a long history in this country and beyond of achieving positive change; the women’s suffrage movement and the campaign to end apartheid in South Africa are famous examples. More recently, the moratorium on fracking in this country was achieved owing to communities’ sustained resistance to this industry.  

Yet in the UK, the space for civic society to express dissent is narrowing. The Police, Crime Sentencing and Courts Act 2022 and the Public Order Act 2023 have created new protest-related offences. At the same time, private companies and public authorities are increasingly using the civil courts to obtain anti-protest injunctions which bypass the criminal justice system (and its comparatively stronger protections for defendants) altogether.  

The global civil society alliance Civicus has downgraded the UK’s level of civic freedom from "narrowed" to "obstructed"; it’s now the most restrictive (in terms of civic freedom) of all Western European countries. For example, Ireland, Portugal and Norway are classified as "open"; and France and Spain are both classified as "narrowed" (this was also the UK’s classification prior to 2022). 

Why's Friends of the Earth taking this case?

Friends of the Earth has been directly impacted by persons unknown injunctions, as have people and organisations across the country. We’ve challenged the principle of these injunctions given their fundamental unfairness at each level of the court system in the UK, but with mixed results. Our application seeks to defend the rights of people to express dissent and to champion the right to a fair trial in the highest possible forum: the European Court of Human Rights (see below for more details).  

Our history of challenging anti-protest injunctions

Back in 2017, we became concerned at a trend by the oil and gas industry to take out anti-protest injunctions against persons unknown. Firms engaged in fracking and other unconventional fossil fuel extraction techniques, such as Ineos, UKOG, Igas, and Angus Energy, took out similar injunctions in a short space of time. They were broadly and ambiguously drafted, so it was unclear which activities were prohibited and which were not. They included bans on activities such as slow-walking in the road, which can be legal; Friends of the Earth staff have engaged in slow-walking protests, often with the co-operation of local police forces. The overall effect of these orders was to stifle peaceful and lawful protest. Their chilling effect deterred those concerned with acting within the law, including Friends of the Earth, from taking part in protest.  

Alongside community groups and concerned citizens, we therefore sought to push back against these orders. For example, we intervened to support the appeal in 2019 taken by Joe Corré and Joe Boyd against Ineos’ injunction, which succeeded and resulted in a significant reduction in the scope of that injunction. Most recently, we intervened alongside Liberty in support of a Supreme Court appeal brought by 3 Gypsy and Traveller charities against Wolverhampton City Council and 10 other local authorities. The judgment, published in November 2023, imposed onerous conditions to obtaining these orders in relation to Gypsy and Traveller communities, an outcome which we welcome given the severely detrimental impact of these orders on these communities’ traditional, nomadic way of life. But it did not impose these or similar conditions in the protest context. See our legal briefing for further details.

In the last couple of years, there’s been a further surge of injunctions taken out in relation to various protest activities. These have included a route-wide injunction obtained by HS2, which was strongly criticised by the Wildlife Trusts given the potential implications for protest rights and also nature reserve visitors, and an injunction obtained by Walleys Quarry Ltd [PDF] in connection with its controversial land fill site near Newcastle-under-Lyme. Local residents have complained about the noxious emissions from the site. Significant parts of the road network have also been subject to high profile persons unknown injunctions, and Shell has obtained a nationwide anti-protest injunction covering all of its petrol stations.  

Unfortunately, the Supreme Court’s recent ruling in Wolverhampton is likely to embolden private companies and public authorities to continue seeking these injunctions in the protest context. Given the UK’s highest court has not, in our view, engaged properly with the human rights issues associated with these orders, despite having the opportunity to do so, we decided to take a case to the European Court of Human Rights. 

Why’s Friends of the Earth concerned about injunctions?

We’re deeply concerned at the expansion over recent years in persons unknown injunctions where fundamental rights are engaged. These civil law mechanisms are being used by private companies and public authorities to obtain, in effect, their own bespoke public order laws. We believe this is dangerous and undermines the function of the criminal justice system. Our key concerns over these orders are as follows:

• They can have a chilling effect on peaceful, lawful protest. They can and have been granted on broad and sometimes ambiguous terms, so that it’s unclear what is and is not prohibited. This can mean that someone who wishes to engage in lawful protest is deterred from doing so, out of fear of the consequences of being found in breach of an injunction (see below). Friends of the Earth saw and experienced this first hand when injunctions were taken out by fossil fuel companies in relation to fracking projects, which were strongly opposed by local communities. We’ve included evidence of this chilling effect on peaceful, lawful protest in our application to the European Court of Human Rights.
• They’re a misuse of a civil law mechanism which in our view is ill-equipped to deal with complex human rights issues. These injunctions amount to a parallel system of law enforcement to that in the criminal justice system, but one which lacks its safeguards. For example, the decision to enforce an injunction is simply taken by the entity who obtained the injunction and is complaining of the alleged breach, not by any independent third party. By contrast, in the criminal justice system, the Criminal Prosecution Service (CPS) has been appointed by parliament to make the decision to prosecute independently of either the complainant (the alleged victim) or the police (which investigates the offence). Furthermore, no public interest test is applied as part of the decision to take enforcement proceedings (contempt of court proceedings), as happens in prosecutions brought by the CPS. In addition, some of the activities which are prohibited by injunctions are not themselves criminal offences. And even where they are, then unlike in Crown Court proceedings under the criminal law, the trial for contempt of court will be before a judge, not a jury, even though the accused could receive a prison sentence.  
• The penalties for breaching an injunction can be very severe. Breaching an injunction can constitute a contempt of court, and result in imprisonment of up to 2 years and/or an unlimited fine. Notably, penalties are sometimes more severe than for the comparable offence under the criminal law. For example, the offence of obstruction of the highway carries a maximum sentence of 51 weeks imprisonment and/or a fine not exceeding £1,000. We believe that it’s inappropriate for entities, including private companies, to be able to obtain orders like this that can impact so severely on members of the public. We think that public order issues can and should be addressed through the criminal law. In his January 2024 report following his visit to the UK, the UN Special Rapporteur stated [PDF] that he was "deeply troubled by the use of civil injunctions to ban protest in certain areas, including on public roadways."
• It’s very difficult to challenge these injunctions because cost protection is not available in civil law proceedings. This means that ordinary citizens can be priced out of courts. In 2019, we sought to reduce the scope of an injunction obtained by Cuadrilla. However, we were forced to withdraw from the case, as Cuadrilla threatened us with costs of £85,000 if we lost, and the High Court refused to grant us any cost protection. When injunctions have been challenged in court, public-spirited citizens have often taken on considerable financial risk to do this. That’s what happened in the appeal against Ineos’ injunction (see above). 

The grounds

In our application to the European Court of Human Rights, we’re arguing that anti-protest persons unknown injunctions breach the UK’s human rights obligations in 2 key ways. Firstly, in relation to freedom of expression, protected by Articles 10 and 11 of the Convention. We’re arguing that Friends of the Earth’s Article 10 and 11 rights are infringed by these orders in a way that’s arbitrary and disproportionate. We point to the chilling effect that these orders have on peaceful, lawful protest, and argue that they’re: a) not sufficiently precise, clear and understandable; b) not necessary in a democratic society; and c) not proportionate bearing in mind (among other factors) the State’s duty to use the least restrictive measure to achieve a legitimate aim.

Secondly, in relation to Article 6, the right to a fair trial. We argue that the process for obtaining these orders is inherently unfair. Specifically, that these are orders taken out against unknown and unidentifiable defendants, and often obtained on a "without notice" basis. This means that the court often doesn’t hear from anyone opposing the order until after it’s granted. That’s because the only party in court at the time is often the private company, or public authority, that’s seeking it. We’ve pointed to the inequality of arms between those seeking these orders and those impacted by them (notably, in terms of financial resources), and have submitted that this is made worse by the lack of cost protection available. And we’ve highlighted that people can be found in breach of these orders without even knowing about them or understanding their terms.

What do we hope the case will achieve?

We hope that the Court will ultimately find that these injunctions constitute a breach of fundamental rights. It’s notable that a UN Special Rapporteur (see above) has reported serious concerns on the use of persons unknown injunctions against protestors. A positive ruling from the Court would have significant practical implications and could help to bring an end to their usage in this country in the protest context, or at least significantly clamp down on it.  

Importantly, under the Convention, where the European Court of Human Rights finds a human rights violation, the contracting state concerned must abide by the judgment and correct the problem. Also, distinct from any new legislation or rules that parliament might introduce to remedy any violation, a judgment in our favour would in and of itself be highly influential in future decisions by courts in this country. Under the Human Rights Act 1998, which introduced the Convention rights into our national law, our domestic courts have to take account of the European Court of Human Rights’ decisions. In practice, they have very rarely declined to follow them.  

A judgment could also influence decisions positively in other states party to the Convention, which is especially important given that restrictions on protest are happening in other contracting states too. There could be benefits beyond Europe as well. The Convention is one of the most important human rights instruments globally.

Next steps

We filed our application at the European Court of Human Rights at the end of March 2024. They will conduct an initial review and decide whether to communicate our application to the UK.  If it’s communicated then the UK is likely to make submissions on admissibility, which we will respond to. The admissibility test determines if a case will proceed to a full examination by the Court. To satisfy this test, we must show that we have victim status (that we’ve been directly impacted by these orders; Article 34 of the Convention) and that we've exhausted domestic remedies (Article 35). If our case is found admissible, the Court will go on to examine it in full and then issue its judgment.

We don’t know how long the entire process will last, but it’s likely to take a few years. The court’s recent landmark ruling in the Swiss Older Women’s (KlimaSeniorinnen) climate case against Switzerland took several years to conclude, as did the Portuguese Young Persons’ climate case (Duarte Agostinho and Others).

Further information

Friends of the Earth is represented in this application by barristers Stephanie Harrison KC, Stephen Clark and Fatima Jichi, all of Garden Court Chambers, and by solicitor Wessen Jazwari at the law firm Hausfeld. For further information, please contact the Friends of the Earth Media team on 0207 566 1649 or email: [email protected]  

Katie de Kauwe, lawyer

Will Rundle, head of legal

Denis Fernando, campaigner