The motives of the anti-fracking protesters are varied. Some have serious concerns regarding the threat to the environment; others the threat to health and associated cancer risk, others are concerned about the damage to property. Almost all are concerned about the impact the process has had on democracy. All of them are relying upon their rights of freedom of expression and freedom of assembly.
When reviewing these cases, the Crown Prosecution Service looks at the behaviour of the protesters and tries to find a crime that fits. This is not conjecture on my part. I have been told by a prosecution agent in a protest case that, “If this doesn’t fit we will find something that does.” Protest cases are almost exclusively prosecuted by a small number of agents who are paid at very high cost case rates.
Defendants are charged with offences never designed to be used against protesters. This makes cases exceptionally complex and difficult both to defend and to prosecute. A “prosecute at all costs” mentality has proven to be very expensive and has taken-up a great deal of court time.
The main offence with which the anti-fracking protesters have found themselves charged is “unlawful obstruction of the highway”. This offence is designed to prevent people from stopping the free flow of traffic on public roads without a reasonable excuse.
In protest cases, the offence is being used to arrest and prosecute protesters who attempt to block access to private roads by lying on the boundary of the public highway. Protesters lie in the entrance of the fracking site and lock their arms together into a device known as a “lock on”. This prevents drilling equipment entering the site while the protest is ongoing.
Because this offence is being used in a way in which it was never meant to be used, many of these cases devolve into complex legal arguments regarding where the boundary between the public and private road is and even what constitutes a highway.
Another charge that has been used by the Crown Prosecution Service to prosecute protesters is s.241 Trade Union and Labour Relations (Consolidation) Act 1992. This offence was created to deal with violent and disruptive pickets in trade union disputes. It is now being used against protesters who prevent heavy goods vehicles and heavy plant entering the site by peacefully sitting on the vehicles or chaining themselves to them. Protesters call this “lorry surfing”.
As this charge is being used for a purpose never envisaged by those who drafted the legislation, the cases become very complex indeed.
One trial I defended recently involved less than two hours of actual evidence being heard and more than two full days of legal argument involving law so complex that the lay bench felt the need to adjourn the case to allow the legal adviser two weeks to study the cited law.
The latest offence chosen by the Crown Prosecution Service is public nuisance. This has led to the controversial imprisonment of three protesters. Kirsty Brimelow QC stated that these would become the first environmental activists to receive jail sentences for a protest in the UK since 1932.
Public nuisance is a common law offence designed to punish those who cause injury, loss, or damage to the public. It is not designed to protect the interests of private individuals or companies.
The reality is that cases involving financial loss or nuisance to a private company or individual ought to be brought in the civil courts. Whilst various injunctions and counter-injunctions are being fought in the civil courts, and the very question of the legality of fracking at the site is being determined by the High Court, criminal cases continue.
At a time where there are significant cuts to police numbers, court staff and Crown Prosecution Service lawyers, it is difficult to see how the current regime of policing and prosecutions is anything but prioritising the business interests of the fracking industry over the wider public interest.
The government is disproportionately spending time, money and resources to protect a private industry with the means to protect itself. This is an industry that makes offers of investment to local councils when trying to get permission to set up drills in their backyards, after all.
It must be right that the law be used to protect individuals and companies as per the intentions of the legislature. But when old common law offences, road traffic laws, and brutal anti-Trade Union laws are used to prevent peaceful protests against a resource exploitation linked to countless geological, health, and environmental concerns, something is not right. When this is done at great cost to the taxpayer, there is something even less right.
When this is against a back-drop of CPS advocates being paid even less than under-paid defence advocates in “regular” criminal cases? Questions need to be asked and answers need to be given by those who are constitutionally accountable to the taxpayer.
Mark Pritchard is able to give advice on any cases where a lay client is being prosecuted for exercising their free speech and protest rights.
Central Chambers has a criminal team with experience in defending a variety of of public order, road traffic, protest, and human rights work.
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