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.

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