Wolverhampton City Council and others (Respondents) v London Gypsies and Travellers and others (Appellants) [2023] UKSC 47 – On appeal from: [2022] EWCA Civ 1
Between 2015 and 2020, several local authorities obtained wide injunctions against ‘persons unknown’ to prevent unauthorised camping on public land, some covering entire boroughs. In Bromley London Borough Council v Persons Unknown [2020], the Court of Appeal ruled that such injunctions should be a last resort. Following this, the High Court discharged several injunctions, citing a lack of power to bind newcomers. However, the Court of Appeal overturned this decision, allowing final injunctions against newcomers. The Supreme Court upheld this but recognised the impact on Gypsies and Travellers’ nomadic lifestyle. It set strict limits on the scope and duration of such injunctions, noting they should not cover entire boroughs or be indefinite. The Court also emphasised the importance of protecting Gypsy and Traveller rights, though protest-related injunctions remain unaffected.
The case involved Friends, Families and Travellers, London Gypsies and Travellers, and Derbyshire Gypsy Liaison Group, who intervened in the proceedings. These organisations were represented by Marc Willers KC and Owen Greenhall. Further information on the case is available here.
Friends of the Earth, also interveners, were represented by Stephanie Harrison KC, Stephen Clark and Fatima Jichi. Friends of the Earth are challenging anti-protest injunctions at the European Court of Human Rights, with further details available here.
National Highways Ltd v Kirin & Ors [2023] EWHC 3000 (KB)
National Highways Ltd brought contempt proceedings against over 40 Just Stop Oil protestors for breaching an injunction after they climbed and attached themselves to gantries on the M25, disrupting traffic. The defendants claimed they were unaware of the injunction. The Court ruled that while knowledge of the injunction was not required for liability, it was relevant for sentencing. Defendants had to prove lack of knowledge to the civil standard. After hearing evidence, the Judge found most defendants were unaware of the injunction and had met the burden of proof, so no penalty was imposed for the technical breach. Owen Greenhall, Audrey Cherryl Mogan and Michael Goold acted for the defendants in this series of cases.
Esso Petroleum Co Ltd v Breen and Persons Unknown [2023] EWHC 2013 (KB), 31 August 2023
The claimant, an oil pipeline company, sought a final injunction to stop protestors interfering with its oil pipeline construction project between Southampton and London Heathrow Airport. Julian Knowles J granted the injunction, holding that, while some of the acts done pursuant to the conspiracy were not directly actionable by the claimant, the claimant had made out a claim of conspiracy to injure by unlawful means. The relevant requirements for making an injunction against “persons unknown” had been followed, and the interference with the protestors’ Article 10 and 11 ECHR rights was justified.
R v Trowland and Decker [2023] EWCA Crim 919, 31 July 2023
Two Just Stop Oil protestors, convicted of causing a public nuisance by closing the QEII bridge for 40 hours, appealed their sentences of three years and two years, seven months imprisonment. The Court of Appeal acknowledged the relevance of Articles 10 and 11 ECHR to sentencing, stating that a conscientious motive might justify a lesser sentence, particularly for law-abiding citizens. A more proportional approach to sentencing may be taken if the protest caused minimal damage or inconvenience. However, if the protest was extreme, leniency was less justified. In this case, the Court dismissed the appeals, finding the sentences appropriate given the disproportionate impact of the protest. Jacob Bindman acted for the First Appellant.
Director of Public Prosecutions v Eastburn [2023] EWHC 1063 (Admin)
In 2020, Cathy Eastburn participated in an Extinction Rebellion protest on Parliament Street, despite a direction under section 14 of the Public Order Act 1986 limiting the assembly to Parliament Square Gardens. She was arrested for failing to comply with the direction. The trial judge, citing Ziegler, found that while the police’s direction was lawful, convicting Eastburn would violate her Article 10 and 11 ECHR rights. On appeal, the High Court ruled that once the offence’s elements were met, no further proportionality assessment was needed and substituted a conviction. Henry Blaxland KC acted for Cathy Eastburn on appeal.
Attorney General’s Reference (No. 1 of 2023)
The Court of Appeal ruled on the defence in criminal damage cases, where a defendant believes the property owner would have consented to the damage if aware of the circumstances. This case arose from a protest where the defendant was acquitted. The Attorney General referred two legal questions: what constitutes the “circumstances” of damage under section 5(2)(a) of the Criminal Damage Act 1971, and whether the judge should have withdrawn the defence during the trial. The judgment clarified that the defence remains available in protest cases, and the jury must consider the circumstances. Judges should be cautious when considering withdrawing the defence, as the jury’s judgment, not the judge’s, is paramount. Henry Blaxland KC, Tom Wainwright and Owen Greenhall represented the acquitted person before the Court of Appeal. Audrey Cherryl Mogan represented the acquitted person in preliminary hearings and legal arguments in the lower Court.
National Highways Ltd v Persons Unknown, Rodger and 132 others [2023] EWCA Civ 182, 23 February 2023
National Highways Limited brought a claim in trespass, private nuisance, and public nuisance against protestors. The judge granted a final injunction against 24 named defendants but only an interim injunction against 109 others, as the claimant had not proven on balance that those defendants had committed the tort. On appeal, the Court of Appeal ruled that for a final anticipatory injunction, it is not necessary to show the defendant had already committed the tort. Given that few defendants had engaged with the proceedings, the Court granted summary judgment for the injunction, as they had no realistic prospect of defending the claim at trial.
Director of Public Prosecutions v Bailey and others [2022] EWHC 3302 (Admin), 21 December 2022
This was an appeal by the prosecution against the acquittal of two protestors, who had been charged with aggravated trespass, but acquitted on the basis that the prosecution had not proved that they knowingly or recklessly trespassed. The Divisional Court allowed the appeal, holding that, in order to found an aggravated trespass conviction, it was not necessary to prove that the defendant knew, or was reckless as to whether, they were trespassing. Owen Greenhall acted for the Respondents.
Attorney General’s Reference on a Point of Law No 1 of 2022 [2022] EWCA Crim 1259, 28 September 2022
The Attorney-General referred a point of law to the Court of Appeal after the acquittal of four protestors charged with criminal damage for toppling the Edward Colston statue. The Court ruled that Articles 9, 10, and 11 ECHR do not protect violent or non-peaceful conduct, nor damage to public property that causes significant harm. However, minor or transient damage may still fall under Convention protection, with prosecution and punishment subject to proportionality. In cases involving damage over £5,000, issues of peaceful conduct should not be left to the jury. The Colston case was outside Convention protection as the statue’s toppling was violent and caused significant damage. Owen Greenhall provided written submissions on behalf of Liberty, and Tom Wainwright represented Milo Ponsford, the first of four defendants, all of whom were found Not Guilty by a Bristol jury.
MBR Acres Ltd and others v McGivern [2022] EWHC 2072 (QB), 2 August 2022
The applicants, a company which bred dogs for laboratory testing, applied to commit a solicitor to prison for breach of an injunction prohibiting entry into an “exclusion zone” around their premises. Nicklin J refused the committal application, holding that the applicants had not properly complied with the order for service. The application was certified as totally without merit.
Director of Public Prosecutions v Cuciurean [2022] EWHC 736 (Admin), 30 March 2022
The defendant was charged with aggravated trespass for digging and occupying a tunnel to halt the HS2 construction. The deputy district judge acquitted the defendant, finding that the prosecution had not proven the interference with the defendant’s Article 10 and 11 ECHR rights to freedom of expression and association was proportionate. The prosecutor appealed to the Divisional Court, which allowed the appeal. The Court held that DPP v Ziegler [2022] AC 408 did not require the prosecution to prove proportionality for all “non-violent” protest offences. It ruled that for aggravated trespass, proportionality is inherent in the offence’s elements, so no further proof was needed.
R v Brown [2022] EWCA Crim 6, 14 January 2022
The defendant, a protestor who glued himself to an aeroplane at London City Airport, was convicted of public nuisance. He appealed, arguing that it was an abuse of process to prosecute him for public nuisance instead of aggravated trespass or breach of bylaws. The Court of Appeal dismissed his appeal, stating that charging a common law offence instead of a statutory one was a matter of good practice, but not an abuse of process. The Court found good reason for charging public nuisance due to the significant disruption to public rights and flight operations, which went beyond aggravated trespass. The prosecution was compatible with Articles 10 and 11 ECHR. The Court reduced his sentence to four months’ imprisonment.
Aghaji and Garforth v Secretary of State for Business Energy and Industrial Strategy (CO/1097/2022)
Successful judicial review challenge of the government’s Net Zero Strategy. The government conceded that the NZS was unlawful in circumstances where it had failed to comply with sections 13 and 14 of the Climate Change Act 2008.
Finch v Surrey County Council and Horse Hill Developments Ltd (with Friends of the Earth Ltd intervening) (2022) PTSR 958
Appeal against the decision of Holgate J to refuse the claimant’s judicial review challenge of SCC’s decision to grant planning permission for oil production at the Horse Hill site for 25 years. The main issue in the appeal concerned the adequacy of the environmental impact assessment (“EIA”) and focused on the requirement to include within the EIA an assessment of the significant indirect effects of the development on the climate and an assessment of those GHG emissions (known as “scope 3 emissions”). Press Coverage: The Independent, Financial Times.
Cuciurean v Secretary of State for Transport and High Speed Two (HS2) Ltd [2021] EWCA Civ 357, 16 March 2021
An anti-HS2 protestor appealed a finding of contempt of court for breaching an injunction prohibiting trespass on land, as well as the sanctions imposed. The Court of Appeal dismissed the appeal on liability, rejecting claims that there was insufficient evidence regarding land boundaries or that the wrong standard of proof was applied. It ruled that actual knowledge of the order was not required, as long as it had been served, and upheld the judge’s finding that the appellant had knowledge. However, the Court allowed the appeal on sanction, determining that the committal period was excessive and disproportionate.
Thornton v Oil and Gas Authority and Third Energy UK Gas Limited (2020) EWHC 2615 (Admin)
Judicial review challenge of the decision of the Oil and Gas Authority to approve the sale by Barclays of Third Energy (a fracking company) to York Energy (a newly incorporated affiliate of a Caymans company (Alpha Energy) with no history of operating in the UK) given the risk that the purchasing company might not pay for the decommissioning costs associated with the operation.
Kenyon v Secretary of State for Housing Communities and Local Government (2020) EWCA Civ 302
Represented a local resident who unsuccessfully challenged a decision by the Secretary of State that no environmental impact assessment was required for the proposal that 150 homes be built on a site in Hemsworth, in circumstances where the development would lead to an increase in traffic and nitrogen dioxide levels in the town centre, which had been designated as an Air Quality Management Area.
Hudson v Royal Borough of Windsor and Maidenhead and Legoland (2019) EWHC 3505 (Admin)
Judicial Review challenge on behalf of the Campaign to Protect Rural England, to the decision of the Royal Borough of Windsor and Maidenhead to grant Legoland planning permission for the construction of a holiday village and other works at its Legoland Windsor site. The claimant complained about the impact of the development on veteran trees within the site and the inadequacy of the proposed buffer zone between the site and the adjacent Windsor Forest and Great Park Site of Special Scientific Interest and Special Area of Conservation, and the council’s failure to undertake an appropriate assessment. Court of Appeal upheld Lang J’s decision, although it concluded that the protective buffer zone between the site and the adjacent Windsor Forest and Great Park Site was wider than Lang J had assumed.
Frackman v SSCLG and Cuadrilla [2018] EWCA Civ 9
Challenge to the decision by the Secretary of State for Communities and Local Government to grant Cuadrilla planning permission for fracking operations at a site in Lancashire.
Andrews v Secretary of State for Business, Energy and Industrial Strategy and the Secretary of State for Housing, Communities and Local Government (2018)
Challenge brought by the Mayor of Malton against the government’s decision to issue a written ministerial statement (WMS) requiring local authorities to ‘recognise’ the statutory definition of fracking set out in the Infrastructure Act 2015. This challenge aimed to prevent fracking operations (which use slightly less fluid than the statutory threshold) being granted planning permission in areas of outstanding natural beauty and national parks, such as the North York Moors.
MCS, Richard Haward Oysters v SSEFRA
Judicial review challenge to the government’s Storm Overflow Discharge Reduction Plan on grounds that it fails to accord with statutory obligations, human rights and the public trust doctrine. Press Coverage: The Guardian, BBC News, Financial Times, iNews.
M4 Corridor (Relief Road) Around Newport Inquiry
Irena Sabic KC and Grace Brown were instructed in Inquiry through the Environmental Law Foundation by several organisations including the Wildlife Trust, Gwent Wildlife Trust and Campaign for Protection of Rural Wales. This concerned a scheme with an estimated cost of £1 billion; see here, which resulted in the plans of the Welsh Government to build the road being rejected.
Carolyn Brown v London Borough of Ealing and Queen’s Park Rangers [2018] EWCA Civ 556
Challenge to Council’s decision to grant Queen’s Park Rangers planning permission to redevelop the 61-acre Warren Farm site in the Metropolitan Open Land (MOL) for mixed-use as a training facility for the football team and community open space/sports facilities. The appeal concerned the meaning of the term “very special circumstances” but also had a very important environmental angle, namely the application of the London Plan’s policies on the development of protected open spaces within the MOL.
LGT FFT and DGLG v Wolverhampton CC (FoE and Liberty intervening)
The Supreme Court has granted Friends, Families and Travellers (FFT), London Gypsies and Travellers (LGT) and Derbyshire Gypsy Liaison Group (DGLG) permission to appeal the use of these wide-ranging ‘anti-Traveller’ injunctions taken out by Wolverhampton City Council and numerous other councils. Marc Willers KC is leading Tessa Buchanan and Owen Greenhall, and Stephanie Harrison KC is leading Stephen Simblet KC and Fatima Jichi.
