Court of Appeal to hear unprecedented right to protest case in March, Heather Willams QC and Jennifer Robinson act for Joe Boyd

In the first week of March 2019 the Court of Appeal will hear a challenge to the unprecedented anti-protest injunction granted by the High Court in favour of INEOS, a large multi-national company involved in fracking, and its supply chain companies. It is test case and represents a vital chance to reverse a recent pattern of fracking companies obtaining wide-sweeping injunctions criminalising protest activity.

Heather Williams QC, Blinne Ní Ghrálaigh and Jennifer Robinson act with Leigh Day for Joe Boyd, an environmental campaigner who has, along with many others up and down the country, been involved in strongly opposing the fracking industry for a number of years. A recent Government survey has shown fracking is at its lowest popularity ever with just 16% of the population in favour of it. It is in that context, that INEOS went to court in 2017 and obtained an injunction to prevent protests against their activities. Mr Boyd is challenging the injunction because it represents an attack not only on the right of people to protest against fracking, but on the freedom of peaceful protest and freedom of speech more generally, particularly in challenging the activities of multinational companies operating in the United Kingdom.

On 27 July 2017, INEOS was granted an unprecedentedly wide injunction against “persons unknown” in relation to seven of its proposed fracking sites, its corporate headquarters, and companies in its ‘supply chain’. The injunction was granted by the High Court at a hearing, held in secret, at which only INEOS, and the landowners who lease their land to INEOS, were represented. 

This was the first time in legal history in this country that such a wide injunction was granted extending to a network of supply chain companies and without evidence of  protest-related trespasses or other unlawful activity having taken place on INEOS’ sites. In addition, even though INEOS were unable to identify any individual who they said had acted or would act unlawfully, the injunction was still granted, although against ‘persons unknown’, meaning any and all protestors could be caught by its terms. For this reason, the campaign against the injunction uses the hashtag #INEOSvThePeople.

Anyone who is found to have breached the injunction is liable to arrest and a prison sentence of up to two years and a fine of up to £5,000. It exposes people who engage in what would otherwise be lawful protest to serious financial penalties and to the risk of imprisonment.  As Mr Boyd has said,

“This is a serious attack on the human rights of people wanting to speak out and protest against the devastating risk that fracking poses to our countryside, our families and our health… The current injunction seriously undermines all of our rights to protest effectively and our collective ability as citizens to peacefully challenge the powerful corporations which operate in our societies. If it is allowed to remain in place, the injunction will set a precedent which will be used to undermine social movements and the work of NGOs, including those working to protect the environment.”

In two hearings in September and October 2017, Heather Williams QC, Blinne Ní Ghrálaigh and Jennifer Robinson argued that the injunction breached Articles 10 and 11 of the European Convention on Human Rights and was based on a complex and obscure legal doctrine (conspiracy to use unlawful means) that had never been used before to restrain free speech or protest rights in this country. Their argument highlighted to the Court that because people were uncertain about the terms of the injunction, they were wary of acting in ways that might breach it, so it was having a serious ‘chilling effect’ on the rights of those wanting to raise their voices to protest and challenge the fracking industry. In a judgment handed down on 21 November 2017, the Court did not agree and most parts of the injunction were upheld. Permission to appeal to the Court of Appeal was granted and a full hearing will take place in the first week of March.

Importantly, the injunction strictly prohibits protest strategies that have long been used in this country, including strategies like slow-walking, which had in fact previously been facilitated by the police in fracking protests, rather than criminalised.

Since INEOS obtained the injunction in the High Court, other fracking companies have relied on the Court’s decision to obtain similar injunctions in relation to other companies in other parts of the country. The judgment has also been cited to secure criminal convictions for lock-on protests at other sites, and in relation to other issues, wholly unrelated to INEOS.

INEOS is an multi-billion pound offshore petrochemicals company with a widely reported track record in environmental pollution. This major fracking company wants to use the by-products of shale gas for use it its plastic producing petrochemical plants. The British Government have announced a ‘War on Plastics’, whilst simultaneously trying to fast-track the agenda of polluting fracker and plastics producer INEOS.

60 percent of the company is owned by Sir Jim Radcliffe, the founder and chief executive of INEOS, who is Britain’s richest man and a vocal supporter of Brexit. Radcliffe, who has lobbied the Government to weaken green taxes and reduce restrictions on fracking, is reportedly planning to save up to £4bn in tax by moving to Monaco pre-Brexit.

Mr Boyd has been running a Crowd Justice campaign to help support the case, calling for donations to support the case and “spread the word about INEOS and their attack on the rights of citizens trying to freely protest in the United Kingdom”:

“I and my fellow defendant Joe Corré have been fighting the injunction. We could not have done it without the invaluable support of the public, and of people like you who are concerned about fracking and about the right to free speech. If this is left unchallenged, then other broad injunctions preventing protest will be obtained not only by fracking companies, but other companies that face protests against their controversial activities, like fur traders and arms dealers.”

The Crowd Justice site is available here.