The government is to be challenged at the European court of human rights over its use of “confusing and opaque” anti-protest injunctions.
The environmental group Friends of the Earth (FoE) is to argue such injunctions allow private companies to create bespoke public order laws that stifle peaceful protest.
In its challenge, FoE expressed concern over a “rapid and widespread” increase in use of the orders, known as “persons unknown” injunctions, in recent years, amid a wider crackdown on environmental protest and the introduction of strict anti-protest laws in Britain.
The injunctions, taken out against unknown and unidentifiable defendants instead of named defendants as normal practice, maximises the number of people who can be caught by them, even if they are unaware of the orders. Those found in breach of the orders face potential imprisonment, more severe sentences than the criminal justice system, asset seizures and exorbitant costs. One protester against HS2, the high-speed rail link, was ordered to pay costs of £25,000 for breaching an injunction.
Widely used by oil and gas companies at fracking sites, injunctions have been taken out by Ineos, one of the world’s largest petrochemical companies, which made a £500m profit in 2022, and Cuadrilla, a British-based shale company at the forefront of efforts to exploit UK shale gas, and UK Oil and Gas. Local authorities have also used them.
Katie de Kauwe, a lawyer at FoE, said: “Anti-protest injunctions are a confusing, opaque, parallel system of prohibitions that private companies and public authorities are using to create their own bespoke public order laws.”
“These measures have really gone under the radar,” she said. “People don’t realise how serious the issues are given the penalties for a breach are so severe. ”
Fracking companies increasingly used the orders around 2017 and 2018, De Kauwe said, when communities against fracking had exhausted other means of protest.
Sentencing for breaches of such injunctions was often more severe than the equivalent offence under the criminal law, and there could also be huge cost consequences, she said. FoE sought to challenge Cuadrilla’s injunction, but was faced with an £85,000 legal bill if it lost, so withdrew.
“It’s crazy that a private company can obtain a more severe sentence than the criminal justice system,” she said.
“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.”
“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,” said De Kauwe.
Others have warned about the impact of such injunctions. In January, the UN rapporteur on environmental defenders condemned the widespread use of civil injunctions to stop peaceful protest. And in 2022, the Wildlife Trusts expressed concern nature reserve visitors might fall foul of a civil injunction brought by HS2 if they strayed on to HS2-owned land, in addition to it stifling protest.
Katrina Lawrie, 46, was among three anti-fracking protesters given a suspended prison sentence in September 2019 for contempt of court by ignoring a “persons unknown” injunction brought by Cuadrilla to protect its Preston New Road site near Blackpool, Lancashire.
“We were shocked when told to expect a custodial sentence,” said Lawrie. “If you are a rich company, you can buy your own justice system. The injunction had a chilling effect on people in the community who wanted to protest but were frightened of what would happen.”
Lawrie’s initial suspended sentence of two months in prison was reduced by the court of appeal to four weeks in 2020. Lord Justice Underhill, presiding over the hearing, said at the time: “The court attaches great weight over the right of peaceful protest, even when this causes disruption to others.”
Cuadrilla was forced to halt fracking at the shale gas site after triggering what was thought to be the biggest-fracking related tremor seen in Britain in August 2019. The government banned fracking after industry regulators warned it could not be carried out safely without the risk of triggering tremors.
FoE’s appeal to the European court of human rights follows a supreme court ruling in November 2023, over injunctions that targeted the Gypsy and Traveller communities and environmental protesters. The court imposed constraints relating to Gypsy and Traveller communities, but made clear they did not apply to anti-protest injunctions.
An estimate by FoE counted 14 such injunctions taken out in relation to environmental protests between April and October 2022.
