High Court rules on badger cull protestor injunction

High Court rules on badger cull protestor injunction

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Author: Kath Livingston

In a ruling yesterday on application of the National Farmers Union, the High Court granted an interim injunction to restrain the activities of animal rights campaigners planning protests at next week's government-sanctioned badger cull.

Injunction issues

Recognising that there will be differing views on this emotive subject, it is instructive to consider the legal context of the court's decision.  

In the context of emotive issues of moral or ethical significance (the controversial issue of fracking provides another recent example) there are huge difficulties to be had balancing competing rights and interests - the right to conduct one's lawful business without interference, intimidation or threat of or actual violence together with the right to privacy on the one hand, versus the democratic rights to freedom of assembly, freedom of speech, and to engage in peaceful protest on the other.    

These were the difficult issues that the court had to again grapple with, yesterday. First, the injunction was sought against named individuals and also 'persons unknown'; in other words, anyone who might protest against the cull (note the possibility to get an injunction against 'persons unknown').    

Secondly; the conduct sought to be restrained was wide, extending to any protest within 100 metres of the cull zone.  

Scope of injunction

It had been said in support of the application that local farmers and landowners from the cull area had been subjected to harassment and intimidation. Evidence of acts of this nature was put before the court.  

The scope for an injunction to protect against such activity, bordering on if not criminal in nature, is well recognised. Injunctions to prevent trespass on private land, damage to physical property or invasion of privacy (such as in this case publication of farmer's details across social networking sites) are similarly recognised.  

But extending the injunction out beyond the perpetrators of those acts, to persons unknown, and beyond those acts, to otherwise lawful acts would, it had been argued, capture protestors with an interest only in making a peaceful protest within the confines of the law and would criminalise their activities, having a 'chilling effect' on convention rights.       

A balancing act?

This is a common problem in protestor cases. Within any campaign group there will be individuals committed to lawful and peaceful protest, but others - typically a minority - with more concerning and potentially criminal intent.   

The problem is exacerbated when, as in this case, multiple groups exist that share a common interest but different views about modus operandi.  

This presents huge difficulties when it comes to drafting an injunction order, which must finely balance the competing interests.  

Media reports of yesterday's hearing suggest that several hours were spent negotiating the wording of the eventual order. The injunction order is reported to be centred on restraint of acts of harassment, intimidation and trespass and to include a prohibition against any protest within 100 metres of the homes of the farmers and landowners involved, or 25 metres of their businesses.  

Practical implications

The case illustrates the ability to seek emergency relief from the court when a physical protest is imminent or in progress.   

It is possible to apply to the court on an urgent basis, sometimes without notice (i.e. privately) or on very short notice and against named individuals where these are identified and/or, as mentioned above, against persons unknown i.e. a campaign group collectively.  

Orders for substituted service can be obtained and service effected through for example displaying the order prominently on fence posts. However, careful consideration must be given to the breadth of the order sought and to the evidence in support of the application.   

A successful application will typically be founded on evidence of actual or threatened harassment, intimidation, trespass, breach of privacy rights or criminal acts; conduct, effectively, that oversteps the mark. The court will not intervene to restrain peaceful protest within the confines of the law.  

If you are facing the prospect of a physical protest or campaign against your business activities, please get in touch.