Helga Law Journal - 01.01.2021, Side 173

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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breach of the peace occurring, about to occur or likely to be renewed in ones’
presence.302 These powers are mainly concerned with ensuring wider public
safety and maintaining public order but are also conducive to a protestor’s ability
to partake in peaceful demonstrations without fear of violent repercussions.
6.4 Injunctions and the Courts
Although private individuals and bodies are not directly required to comply with
the rights contained in the ECHR, there is, occasionally, an indirect duty imposed
upon them when they interact with the courts. This is because the courts, as
public authorities, are subject to section 6 HRA and so must decide cases and
exercise discretion in a manner which aligns with Convention rights.303 This is
especially relevant, as Mead argues, due to the shift away from traditional public
law routes and towards private, civil remedies in relation to protest actions as
protestors now actively attempt to disrupt commercial business, e.g. by
persuading suppliers to cease their supply to certain businesses.304
The most common civil remedy utilised by private parties, such as
businesses, are injunctions. Injunctions are an order from the court and prohibit
specific individuals from undertaking specified activity in certain locations.305 As
injunctions impose conditions on expression and assembly, the court, in deciding
the order, is required to balance between the property rights of businesses or
privacy rights of company directors and people’s right to protest.306 Two types
of injunction are relevant in this case: ordinary civil injunctions and injunctions
under the Protection from Harassment Act 1997.
6.4.1 Civil injunctions
Civil injunctions can be granted as equitable relief in relation to protest activity
when claims in trespass or nuisance occur. An example of this is the 2017 INEOS
injunction in response to anti-fracking protests. INEOS submitted evidence
demonstrating that the company faced hostility from protestors and of actions
taken against other similar firms that it could expect to face in the future e.g.
repeated trespass.307 In the INEOS case, the possible effects on the freedom of
expression if an injunction was ordered was considered, as section 12(3) HRA

302 A breach of the peace as whenever ‘harm is actually done or is likely to be done to a person or in
his presence to his property or a person is in fear of being so harmed through an assault, an affray, a
riot, unlawful assembly or other disturbance’ (R v Howell (Errol) [1982] QB 416).
303 Mead, ‘The New Law of Peaceful Protest’ (n 1) 47.
304 David Mead, ‘A Chill Through the Back Door? The Privatised Regulation of Peaceful Protest’
[2013] PL 100.
305 ibid 103.
306 Mead, ‘The New Law of Peaceful Protest’ (n 1) 382-384.
307 Rob Evans, 'Fracking Firm Wins Extension To 'Draconian' Protest Injunction' The Guardian
(2017) <https://www.theguardian.com/environment/2017/nov/23/fracking-firm-wins-extension-
to-draconian-protest-injunction> accessed 12 July 2018.
was held to apply.308 The injunction, whilst having an effect on the right, was
regarded as justified as the laws of trespass and highway obstruction were lawful
and predictable. This case can be seen as an example of balancing between the
private rights of the company and the rights of the protestors to demonstrate.
The injunction is aimed at curbing unlawful behaviour, e.g. courses of conduct
that amount to criminal damage or obstructing highways via slow-walking,309 as
opposed to policing the actual expression – e.g. only allowing certain signs.
6.4.2 Use of the Protection from Harassment Act 1997
The use of injunctions to prevent protest has increased since the Protection from
Harassment Act 1997 (PFHA) as its broad powers and vague definitions lend
itself to wide applicability.310 Under the Act, “if someone pursues a course of
conduct which amounts to harassment of another person and which he or she
knows or ought to know amounts to harassment,’311 they may be guilty of an
offence,”312 and the victim may seek an interim injunction.313 This was widened
by s125 of the Serious and Organised Crime and Police Act 2005, which included
within the definition of harassment, the harassment of “two or more people with
the intention to convince them to do or refrain from doing an act there are
entitled to do,”314 thus allowing both victims of the harassment and those
intended to be persuaded e.g. higher up company officials, to seek injunctions.
There is no clear statutory definition of harassment beyond ‘alarming’ or
‘distressing’ an individual, and so it is open to broad interpretation.315 Injunctions
under the PFHA 1997 allow the company to protect itself from demonstrations
in areas beyond company property, e.g. to nearby roads, to establish wider
exclusion areas.316 For example, the Badger Cull injunctions prohibited any
protest-related activities within 100m of homes/25m of businesses, the use of
artificial lights to harass protected persons and the use of flying remote controlled
objects by anyone protesting against the cull.317
6.4.3 A Balancing Act
It is evident that such injunctions can have a deterrent and impinging effect upon
freedoms to protest, as a result, the courts have had to balance between the rights
of those being targeted and those of the protestors. As recognised by Walker J:

308 Ineos Upstream Ltd & Ors v Persons Unknown & Ors [2017] EWHC 2945 [86].
309 INEOS, Injunction https://www.ineos.com/businesses/ineos-shale/injunction/.
310 (n 29) 105.
311 Protection from Harassment Act 1997 s 1.1.
312 ibid s2.1.
313 ibid s3.1.
314 Serious and Organised Crime and Police Act 2005 s 125.
315 Mills (n 43) 128.
316 Mead, ‘The New Law of Peaceful Protest’ (n 1) 264.
317 Mills (n 43) 130-132 see https://www.nfuonline.com/cross-sector/farm-business/legal/legal-
news/high-court-injunction-in-full/.