“47. I also note from national media coverage that on20 June 2024 , two supporters of Just Stop Oil trespassed onto the airfield at London Stansted airport where private jets are parked, and sprayed an orange paint-like substance over two parked-up private jets. 48. The incident at London Stansted airport appears to be in keeping with Just Stop Oil’s current target, as the group has announced its intention to target what it calls the ‘centre of the carbon economy’ in the summer of 2024, by gathering at airports. The homepage to the Just Stop Oil website can be found at https://juststopoil.org, on which there is a link to a video that announces this intention, along with a photograph of a small jet plane being sprayed in what appears to be orange paint. I exhibit a PDF of the webpage at AA3/10. 49. The targeting of airports in the summer of 2024 is especially concerning to the Claimants for two reasons: i. The Borough houses two fuel terminals that supply the aviation industry (Shell Haven and the Navigator fuel terminals). As the group has stated its intention to target the ‘centre of the carbon economy’, the Claimants reasonably apprehend that the fuel terminals that service the aviation industry are also at risk of direct-action protest. It is difficult to imagine that significant protest activity at sites as security-sensitive as airports will be tolerated, and those protests may well be displaced to the fuel terminals and surrounding areas, or the fuel terminals may fact themselves be the primary target of protest action. If the aim is to bring the aviation industry to a halt, targeting its fuel supply seems a logical way to achieve that aim; relatedly ii. The County houses London Stansted airport. More concerning though is that Southend airport is located proximate to the Borough and its fuel terminals. It is entirely possible that displacement of the protestors from the airports could see the protests spill over into the Borough and the County, with a focus on the area around the fuel terminals. 50. The threat to target airports appears credible, not least because it has already happened at London Stansted. Further, I note that Just Stop Oil are holding a specific fundraiser to support the protest: https://chuffed.org/project/just-stop-oil-resisting-against-new-oil-and-gas (I exhibit a PDF of the webpage at AA3/14). The group state that “we’re going so big that we can’t even tell you the full plan, but know this – Just Stop Oil will be taking our most radical action yet this summer”, and have set a fundraising target of£50,000 for this month. 51. As such, the Claimants reasonably apprehend that the threat to airports is credible and could lead to further protest activity in Thurrock and the County, which would cause further harm. The Claimants are anxious to avoid further protest activity and harm of the kind suffered in 2022.”
“Without prejudice to their powers undersection 222 of the Local Government Act 1972 , a council may, in the performance of their functions under the foregoing provisions of this section, institute legal proceedings in their own name, defend any legal proceedings and generally take such steps as they deem expedient.”
“(1) This section applies to proceedings in which a local authority is a party by virtue ofsection 222 of the Local Government Act 1972 (c.70) (power of a local authority to bring, defend or appeal in proceedings for the promotion or protection of the interests of inhabitants in their area). (2) If the court grants an injunction which prohibits conduct which is capable of causing nuisance or annoyance to a person it may, if subsection (3) applies, attach a power of arrest to any provision of the injunction. (3) This subsection applies if the local authority applies to the court to attach a power of arrest and the court thinks that either – a. the conduct mentioned in subsection (2) consists of or includes the use or threatened use of violence, or b. there is a significant risk of harm to the person mentioned in that subsection.”
“(3) Interim injunctive relief may only be granted if there is a sufficiently real and imminent risk of a tort being committed to justify quia timet relief.”
“PERSONS UNKNOWN WHO ARE TRESPASSING ON, UNDER OR ADJACENT TO THE ROADS LISTED AT ANNEXE 1 TO THE CLAIM FORM BY UNDERTAKING EXCAVATIONS, DIGGING, DRILLING AND/OR TUNNELLING WITHOUT THE PERMISSION OF THE RELEVANT HIGHWAY AUTHORITY”
“43. Some obstructions of the highway will amount to a public nuisance. I did not hear detailed submissions as to what amounts to a sufficient obstruction of the highway for the purposes of public nuisance. Instead I heard submissions as to what would amount to an obstruction of the highway for the purposes of the criminal offence created bysection 137 of the Highways Act 1980 . The parties assumed that the same basic principles applied to the public nuisance and to the criminal offence. 44. The position in relation to actions which amount to an obstruction of the highway, for the purposes of public nuisance, is described in Halsbury's Laws, 5th ed. (2012) at para. 325 where it is said: (1) whether an obstruction amounts to a nuisance is a question of fact; (2) an obstruction may be so inappreciable or so temporary as not to amount to a nuisance; (3) generally, it is a nuisance to interfere with any part of the highway; and (4) it is not a defence to show that although the act complained of is a nuisance with regard to the highway it is in other respects beneficial to the public. The notes to para. 325 contain references to cases where the test for obstruction is variously described. Thus, it has been said that any wrongful act or omission upon or near a highway whereby the public is prevented from freely, safely and conveniently passing along the highway is a nuisance. An obstruction is caused where the highway is rendered impassable or more difficult to pass along by reason of some physical obstacle. 45. In Harper v G N Haden & Sons[1933] Ch 298 at 320, Romer LJ said: ‘The law relating to the user of highways is in truth the law of give and take. Those who use them must in doing so have reasonable regard to the convenience and comfort of others, and must not themselves expect a degree of convenience and comfort only obtainable by disregarding that of other people. They must expect to be obstructed occasionally. It is the price they pay for the privilege of obstructing others.’” ‘The law relating to the user of highways is in truth the law of give and take. Those who use them must in doing so have reasonable regard to the convenience and comfort of others, and must not themselves expect a degree of convenience and comfort only obtainable by disregarding that of other people. They must expect to be obstructed occasionally. It is the price they pay for the privilege of obstructing others.’”
“75. As in Ineos (above), the Claimants asked me to proceed on the basis that the same core principles applied to public nuisance and the criminal offence of obstructing the highway undersection 137(1) of the Highways Act 1980 . I am content to do so, and would expect the two to march hand in hand.”
“(1) there is an obstruction of the highway which is more than de minimis; occupation of a part of a road, thus interfering with people having the use of the whole of the road, is an obstruction: Nagy v Weston[1965] 1 All ER 78 at 80 B-C; (2) the obstruction must be wilful, ie deliberate; (3) the obstruction must be without lawful authority or excuse; ‘without lawful excuse’ may be the same thing as ‘unreasonably’ or it may be that it must in addition be shown that the obstruction is unreasonable.”
“on the ground that the plaintiff was on the highway, the soil of which belonged to the Duke of Rutland, not for the purpose of using it in order to pass and repass, or for any reasonable or usual mode of using the highway as a highway, I think he was a trespasser.”
“Highways are, no doubt, dedicated prima facie for the purpose of passage; but things are done upon them by everybody which are recognised as being rightly done, and as constituting a reasonable and usual mode of using a highway as such. If a person on a highway does not transgress such reasonable and usual mode of using it, I do not think that he will be a trespasser.”
“if a person uses the soil of the highway for any purpose other than that in respect of which the dedication was made and the easement acquired, he is a trespasser. The easement acquired by the public is a right to pass and repass at their pleasure for the purpose of legitimate travel, and the use of the soil for any other purpose, whether lawful or unlawful, is an infringement of the rights of the owner of the soil …”
“the right of the public upon a highway is that of passing and repassing over land the soil of which may be owned by a private person. Using that soil for any other purpose lawful or unlawful is a trespass.”
“The rigid approach of Lopes and Kay L.JJ. would have some surprising consequences. It would entail that two friends who meet in the street and stop to talk are committing a trespass; so too a group of children playing on the pavement outside their homes; so too charity workers collecting donations; or political activists handing out leaflets; and so too a group of members of the Salvation Army singing hymns and addressing those who gather to listen. The question to which this appeal gives rise is whether the law today should recognise that the public highway is a public place, on which all manner of reasonable activities may go on. For the reasons I have set out below in my judgment it should. 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 public to pass and repass, they should not constitute a trespass. Subject to these qualifications, therefore, there would be a right to peaceful assembly on the public highway.”
“I conclude therefore the law to be that the public highway is a public place which the public may enjoy for any reasonable purpose, provided the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and repass: within these qualifications there is a public right of peaceful assembly on the highway.”
“So far as the manner of the exercise of the right is concerned, any use of the highway must not be so conducted as to interfere unreasonably with the lawful use by other members of the public for passage along it. The fundamental element in the right is the use of the highway for undisturbed travel. Certain forms of behaviour may of course constitute criminal actings in themselves, such as a breach of the peace. But the necessity also is that travel by the public should not be obstructed. The use of the highway for passage is reflected in all the limitations, whether on extent, purpose or manner. While the right to use the highway comprises activities within those limits, those activities are subsidiary to the use for passage, and they must be not only usual and reasonable but consistent with that use even if they are not strictly ancillary to it. ….. In my view the argument for the defendants, and indeed the reasoning of the Crown Court, went further than it needed to go in suggesting that any reasonable use of the highway, provided that it was peaceful and not obstructive, was lawful, and so a matter of public right. Such an approach opens a door of uncertain dimensions into an ill-defined area of uses which might erode the basic predominance of the essential use of a highway as a highway. I do not consider that by using the language which it used Parliament intended to include some distinct right in addition to the right to use the road for the purpose of passage.”
“57. Article 11(2) states that 'No restrictions shall be placed' except 'such as are prescribed by law and are necessary in a democratic society'. In Kudrevicius v Lithuania(2015) 62 EHRR 34 , para 100 the European Court of Human Rights (‘ECtHR’) stated that 'The term 'restrictions' in article 11(2) must be interpreted as including both measures taken before or during a gathering and those, such as punitive measures, taken afterwards' so that it accepted at para 101 'that the applicants' conviction for their participation in the demonstrations at issue amounted to an interference with their right to freedom of peaceful assembly. Arrest, prosecution, conviction, and sentence are all ‘restrictions’ within both articles.”
“22. Section 137 and the equivalent predecessor provisions have a long and specific history, and have been the subject of a great deal of judicial consideration. The approach adopted to section 137 and its predecessors for over a century prior to Ziegler was rooted in authorities which treated the question to be decided under the statute as similar to the question to be decided in civil nuisance cases of an analogous kind. On that basis, it was held that it was necessary for the court to consider whether the activity being carried on in the highway by the defendant was reasonable or not: see, for example, Lowdens v Keaveney [1903] 2 IR 82, 87 and 89. That question was treated as one of fact, depending on all the circumstances of the case: Nagy v Weston[1965] 1 WLR 280 , 284; Cooper v Metropolitan Police Commissioner(1985) 82 Cr App R 238 , 242 and 244.That approach accorded with the general treatment in the criminal law of assessments of reasonableness as questions of fact. In cases where the activity in question took the form of a protest or demonstration, common law rights of freedom of speech and freedom of assembly were treated as an important factor in the assessment of reasonable user: see, for example, Hirst v Chief Constable of West Yorkshire(1986) 85 Cr App R 143 . That approach was approved, obiter, by members of the House of Lords in Director of Public Prosecutions v Jones[1999] 2 AC 240 (Jones), 258-259 and 290. Lord Irvine of Lairg LC summarised the position at p 255: “the public have the right to use the public highway for such reasonable and usual activities as are consistent with the general public’s primary right to use the highway for purposes of passage and repassage”
“26. On the subsequent appeal to this court, the decision of the Divisional Court was reversed. However, it was agreed between the parties, and this court accepted, that section 137 has to be read and given effect, in accordance with section 3 of the Human Rights Act, on the basis that the availability of the defence of lawful excuse, in a case raising issues under articles 10 or 11, depends on a proportionality assessment carried out in accordance with the approach set out by the Divisional Court: see paras 10-12 and 16. As that question is not in issue in the present case, we make no comment upon it.”
“28. … One might expect that to be the usual position at the trial of offences charged under section 137 in circumstances where articles 9, 10 or 11 are engaged, if the section is interpreted as it was in Ziegler; and that was the only situation with which Lord Hamblen and Lord Stephens were concerned. The dictum has, however, been widely treated as stating a universal rule; and that was the position adopted by counsel for JUSTICE in the present case. 29. That view is mistaken. In the first place, questions of proportionality, particularly when they concern the compatibility of a rule or policy with Convention rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case. Domestic examples include R (Baiai) v Secretary of State for the Home Department[2008] UKHL 53 ;[2009] 1 AC 287 , the nine-judge decision in R (Nicklinson) v Ministry of State for Justice[2014] UKSC 38 ;[2015] AC 657 , and the seven-judge decisions in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening)[2017] UKSC 51 ;[2020] AC 869 and R (SC) v Secretary of State for Work and Pensions[2021] UKSC 26 ;[2022] AC 223 .”
“82. In the Safe Access Zones Bill Reference case, Lord Reed, giving the judgment of the Court, considered that the Divisional Court in Ziegler should- before resorting to the special interpretative duty imposed by section 3 of the HRA- have considered whether the established interpretation of section 137, as stated for example by Lord Irvine in Jones, would result in a breach of Convention rights: [23]. However, given that the question of the need to apply in the context of section 137 the proportionality test set out in Ziegler was not before the Court, Lord Reed made no specific comment on it: [26]. 83. What he did address was the comment in Ziegler at [59] that ‘[d]etermination of the proportionality of an interference with ECHR rights is a fact-sensitive enquiry which requires the evaluation of the circumstances in the individual case’ He stated that while this might be the useful position in a criminal trial of offences charged under section 137 where Article 9, 10 or 11 rights were engaged, if the section was interpreted as it was in Ziegler, that would not universally be the case: [28]-[29]. Questions of proportionality, particularly where they concerned the compatibility of a rule or policy with ECHR rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case: [29]. Further, it is possible for a piece of legislation to ensure that its application in individual circumstances will meet the proportionality requirements under the ECHR without any need for evaluation of the circumstances in the individual case: [34]. 84. Therefore, when a defendant relies on Article 9, 10 or 11 in the defence of a protest-related defence, the Court should- if those articles are engaged- consider whether the ingredients of the defence themselves strike the proportionality balance: [55]. If it considers that they do not strike such a balance, the Court's duty under section 6 of the HRA is to consider whether there is a means by which the proportionality of a conviction can be ensured, whether through using the interpretative duty under section 3 in the case of construing the legislation creating a statutory offence or developing the common law where the offence arises at common law: [56]-[61]. 85. In the present case, the Claimants accept, as explained above, that the requirements for public nuisance should be the same as those insection 137 of the Highways Act 1980 . Therefore, on the face of it, the proportionality requirements set out in Ziegler would apply, and I consider that I should apply them given that Lord Reed made clear in Safe Access Zones Bill Reference that he was not specifically considering this point in the context of section 137. 86. The Claimants submit in relation to the injunction sought against persons unknown that it is not possible to apply the proportionality requirements under the ECHR to specific individual protestors because by definition the identity and circumstances of those individuals is not presently known. Rather at one should apply a proportionality test to the restrictions imposed by the draft order sought with future protests in mind. I accept that I should take the latter course.”