How effective will the injunction obtained by National Highways against the M25 “Insulate Britain” protestors be?
It is seen as necessary because the criminal law alone is fairly toothless against such protestors.
On the face of it, S.137 of the Highways Act 1980 should be sufficient. This is what it says:
137.— Penalty for wilful obstruction.
(1)If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale.
Protestors can be arrested and prosecuted for “obstructing the highway.” That is helpful for police, but the maximum punishment available is a paltry £1,000, and in practice very few protestors are likely to be fined anything like that amount.
The punishment might be trivial, but at least the law seems very simple.
There is a complication. The offence is committed only when a person obstructs the highway “without lawful authority or excuse.”
The usual “protestors’ defence” is that they do have a lawful excuse, namely the exercise of their democratic right to protest. That such a right can constitute a “lawful excuse” was put beyond doubt in the Supreme Court last June in the case of DPP v. Ziegler [2021] UKSC 23. Courts judging whether a protest is lawful have to decide whether the degree of disruption caused by a protest was “proportionate.” If it was, there was a lawful excuse for obstructing the highway. There must be, said the Supreme Court, “an assessment of the facts in each individual case to determine whether the interference with article 10 or article 11 rights was ‘necessary in a democratic society.’”
So the answer to whether someone participating in a protest which blocks a major road is committing a criminal offence is that “it depends.”
For practical purposes it is not a terribly helpful test, although it’s no doubt much better than a draconian ban on all protests on any highway.
In fact it is hard to see any Magistrates’ court holding that the persistent and deliberate blockage of the M25 could ever be proportionate, and so lawful. Ziegler was a case which involved anti-arms trade protestors blocking a small section of a road leading to an arms fair for about 90 minutes. By comparison the Insulate Britain protests have blocked or delayed huge lengths of motorway for days on end. There is no likelihood that any Magistrates Court could hold that such a protest was “proportionate.”
On the other hand it is not at all hard to see protestors making the argument, at great inconvenience and expense, with the additional bonus of achieving more publicity for their cause, whatever the outcome in court.
There has been some talk of charging the organisers of the protests with more serious charges, such as “conspiracy to cause a public nuisance.” This may sound promising to Home Office ministers. It is a common law offence, triable only on indictment in the Crown Court, and carrying a theoretically unlimited prison sentence. A conspiracy prosecution – although prosecution decisions are made by the CPS not the Home Office – could be hailed by the Home Secretary as a long overdue “crackdown.”
The reality is that even if such a charge were ever to reach a jury, and there are plenty of reasons why it would not even after the now normal years of waiting, the chances are high that the jury would then acquit. Juries cannot be compelled to convict and they have a habit of giving the benefit of the doubt to political protestors. Many people are sympathetic to the aims of Insulate Britain and even those, like me, who are unsympathetic might consider a conspiracy charge a somewhat disreputable way of dealing with what is normally a very minor offence.
For these reasons the government appears to have encouraged National Highways to use the civil law and to obtain an injunction.
The effect of the injunction is meant to be that the law relating to the M25 protest is clarified. Anyone covered by the injunction who does something which the injunction forbids is breaking the law. They may or may not be breaking the ordinary criminal law: that is beside the point. The point is that they are committing contempt of court. They can then be dealt with not in the Magistrates Courts but in the High Court, by a single judge. The maximum sentence for committing contempt of court is 2 years imprisonment, and/or an unlimited fine.
Two questions arise: to whom does the injunction apply, and what does it actually forbid?
It is an unusual legal instrument because it is made against “persons unknown.” That is perfectly possible in English and Welsh law, although in a recent case which concerned protestors against the fur trade, memorably entitled Canada Goose v. Persons Unknown [2020] EWCA Civ 303, the Court of Appeal said that if the identity of the persons to whom the injunction is directed are known, and have been identified, “they must be joined as individual defendants to the proceedings.” Since at least some of the protestors seem to have been completely open about their identities – in fact one of them gave an interview to the Radio 4 PM programme yesterday afternoon – and since they were not joined to the proceedings, that particular Goose test may not have been met.
But given that no-one is named as a defendant, to whom does the injunction then apply?
In fact the defendants are not just “persons unknown,” they are:
“Persons unknown causing the blocking, endangering, slowing down, obstructing or otherwise preventing the free flow of traffic onto or along the M25 for the purpose of protesting.”
The injunction contains a Penal Notice – a stern and legaly essential warning of the punishments that might flow from breaching the injunction – addressed, in bold capitals, to:
“YOU THE WITHIN NAMED DEFENDANTS”
Since there are in fact no “within named” defendants this strikes me, admittedly a criminal hack more accustomed to quibbling over the wording of sexual harm prevention orders more than that of High Court injunctions, as slightly peculiar. It is almost as though someone has used a precedent for an injunction but hasn’t bothered to adapt it to the particular facts of this case.
Presumably the injunction applies to those who were actually protesting at the time the injunction was issued. Given that most of their identities are unknown, there may be difficulties in any enforcement proceedings: in particular National Highways might struggle to prove that anyone said to be breaching the injunction was within the class of “persons unknown …” to whom the injunction applies.
Does it apply to those who decide to join the protest after the injunction was issued?
Not directly, it seems, although the penal notice continues, still in bold capitals continues:
“ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS THE DEFENDANTS TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE IN CONTEMPT OF COURT”
But what if others, not involved yesterday, are convinced by the arguments of Insulate Britain and, learning of the injunction decide tomorrow to block the M25 themselves? Will they be in contempt of court or not?
Whilst this blog is very much not a source of legal advice, the answer seems to be that they will not; unless they help or permit “the defendants” (the mysterious unnamed “within named defendants” who were previously blocking the M25) to breach the order.
Let’s leave the technicalities of who the injunction covers.
Equally problematic is what it covers.
This is the meat of the order, setting out precisely what is forbidden:
There are various ambiguities and uncertainties which need not detain us for long. For example, another Swampy has been foreseen, so the order specifically prohibits “tunnelling in the vicinity of the M25.” What does “in the vicinity” mean? Perhaps that will never need to be tested.
But there is a much more fundamental problem.
It only applies to the M25, defined as:
“The London Orbital Motorway including but not limited to the verges, central reservations, on- and off- slip roads, overbridges and underbridges including the Dartford Crossing and Queen Elizabeth II Bridge, and any apparatus related to that motorway.”
That is fairly clear – despite scope for argument in defining “apparatus related to that motorway.”
But something else is even more clear.
It does not bite on protestors blocking any other motorway, or indeed any other road, unless, perhaps, that protest has a knock-on effect on the M25.
It might have been possible to ask for a wider injunction but that could have been met with the response that it was unnecessary. Courts don’t like dealing with hypotheticals.
What will happen if protestors switch their activities to other motorways?
As judges like to say: “at present that question does not arise and does not need to be answered.”
But it will arise, and then it will need to be answered. In fact I think it already may have done so on the M3.
One answer will be a second injunction. And then a third. And a fourth. More injunctions like this might be rather futile.
Another answer might be a change in the law, removing any possibility of a “lawful excuse” defence to obstructing motorways, and increasing the penalties for doing so.
This blog generally opposes crackdowns. But on this occasion it might make an exception.
UPDATE 24th September 2021 10.15
As predicted, the Insulate Britain protestors have now moved off the M25 and onto other roads; at the time of writing the A10 outside the Port of Dover.
We must wait and see whether an attempt is made to obtain another injunction. It is very unlikely that any judge will – or should – issue an injunction against protest on every major road in the country, and any more limited injunction will simply move the protest somewhere else.
Nor, on reflection, is my suggested solution of removing the “lawful excuse” defence from acts of motorway obstruction either sensible or workable: not because it is necessarily a disproportionate interference with the right to protest – as some have persuasively suggested below – but because it too can be easily avoided by blocking other roads (and in any case there are other good reasons, occasionally, for people to block motorways, for example in the aftermath of accidents).
I am not sure what the solution is, but I would guess that at the very least Ms Patel will be giving consideration to increasing the powers of punishment under S.137 of the Highways Act. The Police, Crime, Courts and Sentencing Bill currently going through Parliament could provide such an opportunity. It won’t be much of a deterrent, but at least it will allow the Home Secretary to appear to be doing something.
Surely changing the law would be incompatible with the HRA?
Not at all. The HRA doesn’t mean protestors have a human right to block motorways.
Does Ziegler not explicitly mean that in some circumstances, they might?
Yes it does, but the HRA does not mean the law cannot be changed.
I don’t understand this argument at all, Matthew. If there exist circumstances where Bob’s human rights would be violated by a prosecution for blocking the highway (which, according to the Supreme Court, there do), and the only way of preserving Bob’s human rights is through a ‘lawful excuse’ defence, how can removing that defence possibly be done in a way that will not result in a violation of Bob’s human rights?
Would a statute removing the “lawful excuse” defence from the obstruction of motorways engage Art 10/11? Yes.
Would the interference with those rights (restricted to motorways) be proportionate / justifiable in a democratic society? In my view yes.
But if that defence hadn’t been available to the defendants in Ziegler, there would have been a violation of their rights that would not have been justified by 10(2).
There is a human right for a protestor to express himself, including by blocking a motorway, if that is how he chooses to express himself. Any interference with that right must be proportionate. Whether an interference is proportionate is fact-sensitive in every case. Therefore any blanket prohibition on anybody ever blocking a motorway, on any occasion, for any reason whatsoever however good a reason for blocking that motorway he might plead, might be held, on occasions, to be a breach of the protestor’s human right. Checkmate, unfortunately. We can never say “never”, ever again, unless we can be sure that a fact-sensitive evaluation will always succeed in proving proportionality of that which we wish to prohibit, always. What modern judge will ever rule, ab initio, that a modern legislature was *that* sure that whatever it enacted should be prohibited was always wrong, never right? (You tell me. You’re the lawyer.)
Speaking as a highway lawyer, I suspect that the current case-law shows a blanket ban on unlawful assembly on a motorway. Leaving aside matters of common law nuisance etc, I am pretty sure that the motorway regulations prohibit pedestrian use of a motorway ab initio and I would argue that the balancing exercise was already carried out when the regs were drafted. But please keep the questions coming … gives me a break from writing books etc
Thank you, Thomas Graham.
I was specifically thinking of legislation with what I think is called an “ouster” clause, forbidding the courts from even hearing a necessity defence (as I learnt to call it) in a prosecution of a class of offences. That seemed to be what Matthew was suggesting could be enacted.
John . .. I think you are referring to offences of strict liability rather than ouster clauses. The latter appear in public law from time to time but judges have found ways of wriggling around them in practice. As to strict liability offences, they are few and far between but are created when the matter to be protected is very important. Arguably, the matter of proportionality is taken into account when the legislation goes through Parliament . . certainly since 2000 (when the HR Act 1998 took effect) . . . . Tom
You’ve over complicated it. What lawful authority or excuse did they have? None!
And, with respect, he has not overcomplicated it. If you have a look at the case law on section 137 then it you will see that it is an extremely problematic provision. Among other things, I would be looking at “aggravated trespass” under the Criminal Justice and Public Order Act 1994. If anyone is interested, then I would be happy to provide them with some citations. As a starter, it might be worth looking at DPP v Jones (1999) 2 AC 240.
Some case-law
Seedings -v- Clarke (1961) 59 L.G.R 268 Lord Parker of Waddington:
“It is perfectly clear that anything which substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature is an unlawful obstruction.”
• Harrison v Duke of Rutland (1892): D used public path to disrupt grouse shooting. Held: he was trespasser.
• Fabbri v Morris (1946): shopkeeper sold ice-cream from shop window. Crowd assembled and blocked pavement. Held: she caused obstruction.
• Harper v Haden (1933): erection of scaffolding and hoarding on highway for building works. Held: erection was temporary and reasonable therefore no obstruction.
The ‘A’ board cases:
– Westminster Council v Moran (1998)
– Kent County Council v Curtis (1998)
DPP v Jones (1999): HL held that peaceful assembly on highway at Stonehenge was reasonable and usual use of highway therefore not trespass.
Good hunting !
I think you’ve been suckered. This is state sponsored “controlled opposition”, and the injunction is just further theatre. The big clue is that it gets onto the BBC News, whereas the vastly larger Lockdown/Vaccine Passport Freedom demonstrations happening in cities across UK never feature. Same goes for BLM and extinction rebellion. Only fake protest gets into the mainstream media.
Speaking as a highway lawyer who has Published a book on the topic I would be presumptuous enough to say that this is a very good article. I, too, have been pondering this particular point. The problems with section 137 have been known for some time and my advice to my local highway authority clients is to try and avoid it because it is so fraught with difficulties. I have, also, spent many happy hours in the courts trying to persuade judges to enforce injunctions which, on the face of it, appears to be clear-cut. The usual defence is “I didn’t understand it”. Whilst I have yet to delve into this topic in this particular context, I normally look at the laws relating to trespass (because the surface of a highway maintainable at public expense is vested in the highway authority) and public nuisance. A prosecution for public nuisance is much more powerful than section 137. As I say, I will probably have a look at this in the near future and report back
Thanks Thomas, you obviously know far more about this than me, but I’m reassured that the blog I not entirely gibberish.
Thanks Thomas, you obviously know far more about this than me, but I’m reassured that the blog is not entirely gibberish.
I can remember from the 1980s, an arrest for obstructing the highway was the quick method that unlicensed street traders were removed from outside places like Harrods and the South Kensington museums.
Magistrates accepted that the queue of people on a pavement caused by a person selling ice cream from a van, was in itself an obstruction caused by the seller.
The ‘ice creamies’, as they were known, saw the fines as just a business overhead, and were regular visitors to the magistrates’ court! They were cooperative with the police, in the hope that they would not be reported to the council and be investigated for trading and hygiene offences.
The ones I became involved with had more trouble with Customs & Excise than the police. Their VAT affairs were not always in as good order as they ought to have been.
Mark, I seem to recall that Esther Rantzen was arrested for obstruction for trying some form of bat soup on passers-by in Regent Street or thereabouts. I have a few stock jokes that I trotted out of my seminars; however, not many people now recall it.
I agree that someone seems to run off the draft injunction from the precedent without thinking too much about it. As to the point about confining it to the M25 I would have thought it more appropriate to say something like “…… and other highways and roads managed or operated by the claimant” I presume the counterargument might be that this places a difficulty insofar as the person unknown might argue that he or she does not have any way of knowing whether or not a road it is managed or operated by highways England; however, it is pretty clear that motorways such as the M3 et cetera fall within that description.
Well now they’ve moved onto the A10 anyway, so even my floated solution of a total ban of protests on motorways would be just as flawed.
National Highways (aka Highways England to us in the trade) operates the strategic highway network and this would probably include the A10 . . . hence my suggested wider wording … there are numerous examples of blanket bans in town & country planning ….. so my wider wording is not without precedent. I probably have some sample area injunctions somewhere in my PC . . if I can find them … Pretty sure I have some Powerpoint slides for those who want them. Having looked at the filed claim form , my instinct is that the lawyers acting for National Highways are not well versed in this aspect of public law. They seem to have conflated civil and criminal law. For those who are interested, I have now asked my webinar provider to set up a webinar so I can talk about this topic … I can supply contact details
If someone can tell me how to cut & paste power point slides to this string, then I can show some on area injunctions
I certainly can’t, but it would certainly be interesting to see some!
If you email them to me m.scott@pumpcourtchambers.com I might manage to put them into the body of the blog.
My webinar provider, IQ Legal Training, has now set up a webinar on this for 12 October. For those who may be interested, the link to their website is below. Many thanks to Matthew and all for staring and continuing this debate.
https://iqlegaltraining.com/
The Motorways Traffic (England and Wales) Regulations 1982 – Restrictions affecting persons on foot on a motorway – Reg. 13. No person shall at any time while on foot go or remain on any part of a motorway other than a hard shoulder except in so far as it is necessary for him to do so to reach a hard shoulder or to secure compliance with any of these Regulations or to recover or move any object which has fallen on to a motorway or to give help which is required by any other person in any of the circumstances specified in paragraph (2) of Regulation 7.
Weirdly that Regulation was repealed by Reg 5 of the Motorways Traffic (Amendment) Regulations 1992, and I can’t find its replacement. Surely there must be one? There must be a regulation prohibiting pedestrians on motorways?
The reason, according to the explanatory note to the 1992 regulations, was to tidy things up:
“The use of motorways by pedestrians will nevertheless be restricted by section 17(1)(a) of the Road Traffic Regulations Act 1984 as read with regulation 15(1)(b) of the 1982 Regulations.”
Thanks. I will have a look
why? people have evry right to cross the road surely…and no bugger thought to build a bridge or underpass? not all of us drive…..
Jake
I will track the relevant regs down but, the argument is that there is a statutory prohibition on pedestrians on motorways . . . save in exceptional and narrow defined circumstances. Matthew has pointed out that there has been some tweaking of the regs and so I need to track the references he has supplied to see where this takes us. Ergo, watch this space.
Tom
Doesn’t that ban road works and emergency response too?
Thanks. I will have a look
paltry £1000? how many protestors do you think actually have that kind of money…..? you born silver spoon up the arse types makes me sick 🙁
Jake
Bit of a stereotype there ! I was born in a slum in the 1950s with an outside bog which we shared with neighbours etc. Left school at 15 and then worked my way up the pole. One of my barrister friends was an orphan and became a QC by sheer hard work. As to these fines, my experience is that the mags usually award around £40/£50 + costs . . .
Convict them. Put them in the stocks. Encourage the population to stroll up to them and indulge in ostentatious acts of urination.
Its a no Brainer, they should not be allowed to protest on the road, your holing the traffic up. There could be an ambulance half a mile back, and Dr trying to get to work doing a life saving operation, nurses, or anyone going to work or just out driving, its not allowed, but there should be more to stop them, like hefty builders. Assholes do this, without any consideration for anyone else. Fools, not nice people who have nothing better to do, give them a job and see how they like it.
Wayne