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The felling of protest?

In Sheffield City Council v Fairhall [2017] EWHC 2121 (QB), the Court has been asked to consider the extent to which the decision in DPP v Jones [1999] UKHL 5; [1999] 2 AC 240 can be relied upon as a right to conduct peaceful but disruptive protest on the highway.

There has been a long battle in Sheffield to prevent the local authority’s tree-felling programme. In an effort to discharge its obligation under s.41 of the Highways Act 1980 more efficiently, Sheffield City Council contracted out its maintenance contract to Amey Hallam Highways Ltd. In operating the contract, Amey identified a large number of trees, many of them healthy, that it wished to cut down. Campaigners believed that the contract into which Sheffield City Council entered was unlawful as it put, the Defendant submitted, profiteering (by Amey) and cost-cutting (by the Council) ahead of its environmental obligations.

Campaigners had previously unsuccessfully challenged the lawfulness of the contract in judicial review proceedings, see R (Dillner) v Sheffield City Council [2016] EWHC 945 (Admin). As in many other cases, the unsuccessful legal challenge did not bring about the end of the resistance to the activity to which the campaigners objected. Peaceful protests continued, which mainly took the form of entering the safety zone of the area within which a tree was due to be felled.

Sheffield City Council successfully obtained an injunction to prevent protestors – both named and “Persons Unknown” from entering a safety zone around a tree to be felled, as well as other acts aimed at disrupting the tree felling activity. In granting the injunction, the Court had to consider a number of objections/defences by the protestors. Principally these covered:

1. The tree-felling programme was unlawful;

2. The ‘direct action’ that disrupted the tree felling was not unlawful, but a lawful exercise of the right to protest.

3. Even if the direct action were unlawful in domestic law, it was nevertheless a lawful exercise of the protestor’s Article 10/11 rights.

In light of the previously unsuccessful judicial review, the Court seemed to have little hesitation in dismissing arguments over the lawfulness of the PFI contract, and other objections to the lawfulness of the activity. The Court found that the felling of trees formed part of Sheffield City Council’s duty to maintain the highway under s.41 of the Highways Act 1980. Having done so, the Court said there was ‘no answer’ to the local authority’s submission that entering the safety zone and thereby disrupting the tree felling was an offence under s.303 of the Highways Act 1980:

“A person who wilfully obstructs any person acting in the execution of this Act or any byelaw or order made under it is, in any case for which no other provision is made by this Act, guilty of an offence and liable to a fine not exceeding level 1 on the standard scale; and if the offence is continued after conviction, he is guilty of a further offence and liable to a fine not exceeding £5 for each day on which the offence is so continued.”

The Court concluded that the protestors became trespassers on the highway when they entered the safety zone. This conclusion is a clear example of a factual scenario where a protestor will fall outside the scope of a reasonable user of the highway to conduct a protest as set out in DPP v Jones by Lord Irvine:

“Provided these activities are reasonable, do not involve the commission of a public or private nuisance, and do not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass, they should not constitute a trespass.”

The Court went on to consider the impact of article 10 and article 11 in this situation. The Council argued that:

1. the creation of a safety zone did not even engage the protestors’ Art 10/11 rights as they were free to conduct their protest outside the boundary of the safety zone; and/or

2. the use of unlawful ‘direct action’ did not fall within the protection of Arts 10/11.

The Court referred to the eviction case relating to the St Paul’s ‘Occupy London’ protest (City of London Corporation v Samede [2012] EWCA Civ 160; [2012] 2 All ER 1039). It reminded itself that “direct action” is not a term of art and it does not necessarily follow that all activities which may be so described are unlawful. Nor did it follow that every action which constituted a trespass or was contrary to some provision of domestic criminal law was necessarily outside the scope of the Articles.

In this particular case, Males J concluded that [79]:

“the location of the defendants’ peaceful protest, within a safety zone, is an intrinsic part of the protest in question and that the presence of the defendants within such a zone is itself intended to make and does make a powerful statement about what they see as the importance of the issue….In those circumstances I consider that the defendants’ Articles 10 and 11 rights are engaged.”

The Judge was therefore required to go on to consider whether the interference in the protestors’ Art 10/11 rights was justified. Having considered a number of authorities, the Judge stated [88]:

“…the lawfulness of a protest may change with time. In some circumstances it will be impossible to justify a restriction on freedom of expression or freedom of peaceful assembly which is of limited duration, even if it involves conduct which is tortious or which amounts to a criminal offence, and even if the conduct in question affects adversely the rights of others or – as in this case – prevents others from going about their lawful business. That is something which public authorities and others may have to put up with in view of the importance of these rights in a democratic society. However, a protest which starts as a legitimate exercise of Article 10 or 11 rights may become unlawful if it continues for a more extended period. The more serious the tortious or criminal conduct in question and the greater the impact on the rights of others, the shorter the period is likely to be before the initially legitimate protest becomes unlawful.”

This analysis is a model of clarity. It applies equally to both the protestor considering the appropriate limits on their action and to the police officer considering what restrictions on a protest would be lawful.

Applying that analysis to the situation before him, Males J concluded [90]:

“Thus a protest which may have begun with a view to causing the council to think again has now become an attempt to prevent the council indefinitely from carrying out work which it considers to be in the public interest. Accordingly the position has now changed. The decisive factor in my judgment is that the council is the democratically accountable statutory body charged with responsibility for determining how the highway should be repaired and maintained and how public resources should be allocated. It is required to act lawfully… and is accountable to the people of Sheffield through the ballot box. The defendants, on the other hand, are not accountable to anyone. Ultimately, what has been held to be the lawful decision of the democratically elected council as to where the public interest lies must prevail over the views of individual protesters who are not entitled to prevent the council from giving effect to its lawful decisions.”

So what do we learn from the case?

First, Males J’s observation that it does not follow that every action which constitutes a trespass or is contrary to some provision of domestic criminal law is necessarily outside the scope of the Articles is extremely important. There will be cases where the Article 10/11 rights of protestors participating in unlawful direct action are nevertheless engaged. It follows that any limitation must be in accordance with Articles 10(2) and 11(2), and must therefore be necessary for one of the aims set out in those articles. The Judge accepted that the consequence of this is that public bodies, “may have to put up with” protest action that adversely impacts on the rights of others or prevents them from going about their daily business.

Some direct action will be so serious that it is lawful to bring it to an end immediately. An example of this is the blockade of Heathrow Airport by ‘Plane Stupid’. However, ‘zero tolerance’ of peaceful low-level direct action might well be regarded as an unjustifiable infringement of the Art 10/11 rights of the protestors.

Secondly, and just as importantly, that there is a point at which the protestor is not entitled to continue to prevent others from carrying out lawful activity. The courts will not permit “indefinite” obstruction of lawful activity.

It will – inevitably – remain difficult to anticipate in every case where the boundary will lie. It must also be remembered that the activity in this case was taking place on the public highway. There remains no right to protest, still less to carry out direct action (regardless of its legality) on private land.