Supreme Court to Consider if Anti-Protest Power Grab Injunctions Should be Struck Down

Those breaching ‘persons unknown’ injunctions face an unlimited fine and up to two years in prison, with the potential for their assets to be seized. Their quiet roll-out goes far further than the Policing Act passed last year, Josiah Mortimer reports

The Supreme Court could rule that injunctions banning anonymous protestors en masse from huge tracts of land need scaling back, amid fears over the curbing of the freedom to protest. 

So-called “persons unknown” injunctions can be applied for by companies and public bodies to evict nomadic Gypsy, Roma and Traveller (GRT) communities – and increasingly protestors – from large parts of land. 

A Court of Appeal judgment last March overturned previous court rulings and said that the court orders can apply to ‘newcomers’ – in other words, those not involved in the original court case and who turn up on one of the parcels of land covered by the injunction. 

Opponents say the orders were limited in their use and scope when they first started being used after 2003 but are now frequently requested by firms engaging in controversial practices or local authorities that fail to provide enough space for GRT people to camp. 

The controversial orders not only rule that those on the land are there illegally, but that anyone else entering the land with similar intent – such as blocking machinery for new fossil fuel production or parking a caravan – can face unlimited fines and hefty prison sentences. 

On Wednesday and Thursday this week, the Supreme Court will discuss an appeal that could deem the sweeping injunctions against Gypsy and Traveller communities unlawful and, in doing so, reverse the previous Court of Appeal judgment.

A Friends of the Earth spokesperson told Byline Times that this would “press a reset button” so that persons unknown injunctions (PUIs) can only be granted in very exceptional circumstances. 

Katie de Kauwe, a lawyer for the organisation, believes the dial needs to shift on the use of the practice so they can, for example, only be used to protect someone’s life. “Instead of protecting fundamental rights, the injunctions obtained by these local authorities in this case are infringing on the rights of an already marginalised community (Gypsies and Travellers),” she said. 

FoE is intervening in the case that is being fought by three charities – Friends, Families and Travellers (FFT); London Gypsies and Travellers (LGT); and Derbyshire Gypsy Liaison Group (DGLG). 

Since 2015, a host of PUIs have been granted to disperse unauthorised encampments, which GRT groups say flies in the face of the right of traveller communities to maintain a nomadic way of life. There is a national shortage of allocated stopping sites, leading some traveller communities to access private land. 

The Dale Farm traveller site in Essex, prior to the community’s eviction in 2011. Photo: Michael Kemp/Alamy

FoE believes the injunctions amount to infringement of the right to peaceful assembly – as effectively sweeping protest bans – under Articles 10 and 11 of the Human Rights Act, as well as Article 8 on the right to family life for GRT people. 

There are 10 local authorities opposing the appeal – plus the Department for Transport and HS2 Limited, which has an injunction against protests along all of the HS2 route following environmental opposition. 

Councils defending PUIs are: Wolverhampton, Walsall, Barking and Dagenham, Basingstoke and Deane, Hampshire, Redbridge, Havering, Nuneaton and Bedworth, Warwickshire, Rochdale, Test Valley and Thurrock.

Rights group Liberty is also backing the appeal alongside Friends of the Earth and the GRT groups.

Abbie Kirkby, policy and public affairs manager at Friends, Families and Travellers, said in October the anti-discrimination group was “determined to continue challenging the discriminatory and disproportionate use of these injunctions” and “if local authorities do not identify suitable stopping places for nomadic communities, then they must not be allowed to use punitive measures to cover up their failings”.

Katie de Kauwe added: “Persons unknown injunctions used to be very exceptional. But there’s been an explosion in the last few years. Now they are seen as a default mechanism for private firms and public authorities – effectively creating their own bespoke public law orders.”

Among protest groups, they are understood to have been first used against anti-fracking campaigners in 2017 and 18 at fracking sites such as Cuadrilla’s well at Preston New Road. The development was imposed on the local community after the council said no. However, the Secretary of State reversed the decision. “Protest was all the community had left,” de Kauwe said. “But Cuadrilla took out persons unknown injunctions.”  

There is also currently an injunction out against protestors at a controversial landfill site in Newcastle-under-Lyme. Many in the community are concerned about noxious fumes.

Transport for London, chaired by Labour Mayor of London Sadiq Khan, has taken out injunctions against groups including Just Stop Oil. In October, TfL successfully won a sweeping PUI against “persons unknown deliberately causing the blocking, endangering, slowing down, obstructing or otherwise preventing the free flow of traffic” around 17 bridges, tunnels and junctions of London including Westminster Bridge, the Blackwall and Rotherhithe Tunnels, and London Bridge.

HS2’s injunction has been criticised by the Wildlife Trust amid fears it criminalises those accessing woodland along the proposed route. There are concerns it will even impact those just visiting nature reserves. 

“It’s a privatisation of public order laws – and creating a parallel system,” according to de Kauwe. 

There are public order offences against protest that are set in criminal law – for example causing “serious nuisance” as set out in the recent Policing, Crime, Sentencing and Courts Act. But now other entities can “sidestep” the verdict of the Crown Prosecution Service on whether to charge someone with a criminal protest offence. 

“It’s just whoever manages to get an injunction past a judge,” said de Kauwe. “And it’s having a chilling effect on people who want to engage in lawful peaceful protest.” 

The penalties for breaching an injunction are sometimes more severe than equivalent offences under criminal law – giving commercial companies access to a harsher sanction for breaching protest restrictions than the CPS would grant. 

For the criminal offence of “obstruction of the highway” – often used against Insulate Britain and Just Stop Oil protestors – the maximum prison sentence is 51 weeks or a fine of up to £1,000. 

But those breaching a PUI face an unlimited fine and imprisonment of up to two years, with the potential for their assets to be seized. 

If “persons unknown” challenge proceedings, they face the other side’s costs if they lose. That could easily amount to tens of thousands of pounds, as there is no cost protection limiting the maximum amount. FoE says that this creates an incentive for firms to apply for harsher injunctions and severe penalties.

Campaigners are calling for the Supreme Court to clarify the legal status of PUIs as there is currently “conflicting case law” on when injunctions can be used.  

A key call for reform is introducing legal cost protection for those on the receiving end of PUIs. It is not currently available for challenging the scope of an injunction, unless the company or public body agrees, which is unlikely. 

During the injunction by fracking firm Cuadrilla, Friends of the Earth had to withdraw from its legal challenge as the non-profit was facing a £85,000 bill if it lost. “How is it possible for ordinary citizens to challenge injunctions in that case?” Katie de Kauwe asks. 

After Thursday’s hearing, a ruling from Supreme Court judges is expected to take around two to four months. 

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