Two friends are holding hands, blocking the entrance to the Royal Courts of Justice. Their grasp is stuck with glue, and they’ve fixed their free hands to the metal gateposts. The pair are making a stand against the justice system itself and its treatment of protesters. In particular, they’re trying to draw attention to what they see as the scandal of injunctions.
Callum Goode and Tez Burns are meant to be inside the court for breaking an injunction brought by National Highways Limited (NHL) for climbing gantries over the M25, London’s ring road, to demand an end to new oil and gas licences. But instead of facing the judge, the Just Stop Oil activists are outside. Goode’s T-shirt bears the words “Justice for Sale”. Both defendants, who identify as non-binary, say they can’t accept the authority of a court that grants companies private laws that suppress protests.
An injunction is a court order that usually prohibits an act by either a specific person or group. They were designed to address behaviour by known and named individuals, and can be used, for example, to stop one person harassing another or from revealing company secrets.
In recent years, injunctions have increasingly been deployed to stop protesters who are targeting public and fossil fuel infrastructure. Where once an injunction might have protected a small area of private property, such as a factory, there are now injunctions that cover huge areas of land, such as the whole strategic roads network or the entire route of HS2. Injunctions are being levied not only at named individuals but at “persons unknown”, making them catch-all. The barrister Adam Wagner has called these more repressive examples “Mega Person Unknown Injunctions”.
Given the serious disruption just a few individuals can cause—for example preventing the use of key motorways—it is understandable that government and the companies affected may seek legal means to quickly restore order. Injunctions can prove a more effective deterrent than the criminal justice system, and give parties the opportunity to protect their own property and directly pursue anybody causing disruption and posing safety risks. But the use of injunctions in such cases is being seen by many legal experts as a cause for concern.
In Goode’s case, the broad injunction prevented protests on structures on the M25. Two days before their action in November 2022, NHL, which had been tipped off about the planned protest, targeted Just Stop Oil with this injunction—but the news never reached Goode. By the time they discovered they were being pursued for breaching the injunction, they’d already been arrested, held in prison for 11 weeks on remand and were still awaiting their criminal trial. Now they faced a further penalty for breaking an injunction they say they didn’t know about, in a civil court without a jury.
As another activist put it to me, injunctions make actions “doubly illegal”. An act of civil disobedience may involve committing a crime, such as obstructing the highway, which will be dealt with in a criminal court. But if an injunction is in place, protesters could additionally find themselves pursued through the civil courts for breaching it. For this, they may be found in contempt of court, facing potentially unlimited fines and up to two years in prison.
In legal parlance this is a remedy rather than a punishment, but in commonsense terms, it amounts to a form of double jeopardy, with protesters potentially paying twice for the same act. The criminal trials of around 40 people who scaled motorway gantries with Just Stop Oil were scheduled to begin this summer, but most have already been in the civil courts for breaching the NHL injunction, receiving suspended prison sentences and bills for court costs. The highest bill presented to any individual so far is £22,000, with the average nearer £3,000.
Some activists worry that the threat of unlimited fines and the seizure of assets is having a chilling effect on protest. In September 2021, David Nixon, a care worker from Barnsley, and Catherine Rennie-Nash, a retired schoolteacher from Kendal, joined Insulate Britain in blocking the M25. They were calling on the government to insulate all social housing by 2025 and all homes by 2030 (the UK has some of the least energy efficient homes in Europe, and around 18 per cent of emissions come from heating homes). While their action was disruptive to many, Nixon told me that he felt it was “worthy of what we’re facing. It was a hand up to society saying business as usual can’t continue”.
It amounts to a form of double jeopardy, with protesters potentially paying twice for the same act
Nixon and Rennie-Nash knew they were committing a criminal offence (wilful obstruction of the highway) and expected to be held on remand for being repeat offenders. But to their surprise, the police released them. Rennie-Nash says she warned officers: “If you release me from this police station, I will at the earliest opportunity go out and disrupt and sit on the road again.” They went on to occupy sections of the M25 five times in a fortnight.
When National Highways Limited took out an injunction covering the M25 and forbidding any form of disruption, Nixon and Rennie-Nash knowingly broke it—but many of the group were deterred by the possible costs, which are typically much higher than those given as punishment in criminal courts. “It’s hard to maintain collective solidarity in the face of injunctions when people’s houses, assets and businesses are at risk. It’s a big scary thing,” Nixon says. He received a suspended sentence of 42 days in prison and a £5,000 fine, to which £3,000 of costs were later added; yet in terms of the crime, he was eventually charged around £400 in fines and costs at Chelmsford Magistrates Court.
Lawyers sympathetic to the actions of climate protesters worry that the use of injunctions in this context is fundamentally anti-democratic, because the legislature is bypassed and rules that might be decided by parliament are put in place at the request of those with means to pay for lawyers.
Ordinarily, “if you want to change the criminal law, you have to go to parliament and seek to do so. If you are an oil company and you think that the punishments for things that protesters are doing are insufficient, then you should go to parliament and lobby to get those sentences increased,” says barrister Paul Powlesland. But when used against climate protesters, “what injunctions do is effectively allow those with money to bypass that and buy their own laws that apply solely to them.” This undermines the idea that the law should apply equally to everyone, he says. Injunctions “attack the heart of our constitutional system, the principle of equality under the law”.
Raj Chada, a criminal defence lawyer, similarly describes anti-protest injunctions as “a private law system for those that can afford it”. He points out that a rape victim may have to wait more than three years for a court date in our underfunded criminal justice system, while the grievances of those with injunctions get fast-tracked through.
Anti-protest injunctions have also been described as a means of bringing in legislation through the back door. Even as the draconian Police, Crime, Sentencing and Courts Bill was working its way through parliament in 2021, the then Conservative transport secretary Grant Shapps backed NHL’s injunction as an immediate way to bring forward harsher punishments for Insulate Britain activists and others, deterring more from getting involved in protest and accelerating the process of justice through the courts.
Local governments, too, have used injunctions against citizens. In 2022, Just Stop Oil protesters disrupted an oil terminal in Kingsbury, Warwickshire, blocking the entranceway and climbing on top of tankers. The oil company Valero took out its own injunction forbidding protest at the site, but then North Warwickshire Borough Council followed suit—adding powers of arrest.
Rennie-Nash, fresh from breaking the NHL injunction, was part of a group of 50 activists disguised as birdwatchers who boarded a bus from Birmingham to protest. She was arrested after sitting peacefully in the terminal’s entrance and unfurling protest banners, taken straight to Bronzefield prison and held on remand for a week. Why put herself through it? She tells me, “We were challenging the absurdity of a council taking out an injunction to protect an oil company that’s got billions.”
Elsewhere, councils have been forced to backtrack. When residents in Sheffield protested against plans to remove thousands of street trees as part of a highway maintenance programme, the council spent over £400,000 on an injunction to prevent residents standing under trees to protect them from felling. A few local residents who breached it were made to pay £60,000 in costs. Some received suspended prison sentences.
Since then, the tree-felling programme has been recognised by the council as a mistake and an independent inquiry has ruled the council misled the court when obtaining the injunction. The local government has refunded the victims’ costs, but the court’s finding remains. Last year, Sheffield Council finally published an open apology to residents for “removing healthy trees which should still be standing today… Residents should not have had to fight their council to retain and value healthy trees, particularly not those with special significance such as memorial, rare or veteran trees”. The council described its injunction as “unwise”.
While anti-protest injunctions are usually temporary at first, and can later be countered in court, they are often granted with very limited challenge. Ordinarily in a civil dispute where both parties are named, the person served the injunction will represent their own interests in court or employ a lawyer. In criminal law, the interests of the public at large are represented by parliamentarians who scrutinise legislation. But, Powlesland says, the interests of the protesters “are often just completely unrepresented and their interests are not heard” at the time a judge is deciding whether to approve protest injunctions. He thinks for any such order, the court should appoint an amicus curiae—a sort of advocate to represent the public interest or the interest of people who would be bound by it, but who aren’t represented in the court. Chada agrees that the way injunctions are obtained is in need of reform. He also questions whether it is ever appropriate for public bodies to use them.
Injunctions are proving to be effective at dividing protest movements
By the time most protesters discover they’re hit by an injunction, it’s too late to challenge the terms of its creation and they must simply face the consequences of having breached it. In practice, judges are unlikely to impose penalties on those who genuinely did not know that the injunction existed—especially when the injunction is targeting “persons unknown”—but claimants often put a lot of energy into capturing evidence of protesters being served injunctions, so that they can’t deny knowledge in court.
When activists are named on injunctions, it can feel intimidatory. Protesters say they have returned home to find thick bundles of paperwork gaffer-taped to their front door, and Nixon tells me that Shell served him with injunction papers that filled five deep ring-binders. Insulate Britain activists had a competition for who had the highest pile of injunction papers.
As those papers stack up, injunctions are proving to be effective at dividing protest movements. Burns, who is working-class and from Swansea, tells me that fellow activists with something to lose are terrified. “I haven’t got enough money to pay and I’m not afraid to have nothing. Everyone with something is afraid of injunctions, they’re afraid of losing what they’ve got”. It’s unsurprising that many have signed undertakings not to breach an injunction, either to remove their name from the injunction or reduce their liability for costs from ongoing legal proceedings. Sometimes those costs can then transfer to the people whose names remain on the injunction, putting increasing pressure on an ever-shrinking group. Burns has fallen out with friends over it.
Goode and Burns haven’t signed any undertakings and want to stay in resistance against them. But it’s risky to challenge injunctions, because doing so takes up court time, potentially increasing costs for yourself and everyone else.
Goode is one of hundreds named on an injunction taken out by Thurrock Council (as a result of actions at an oil terminal), the vast majority of whom have signed an undertaking. They fear the mass decision to sign may ultimately undermine any resistance. Another activist, a doctor, tells me that he signed the Thurrock undertaking in order to safeguard his house, because “some of us have to keep something”. He’s already received a suspended sentence for breaching the injunction and paid thousands of pounds, all while awaiting his criminal trial for the same action. He describes the situation as “Kafkaesque”.
After being released from prison following the glue incident this March, Goode returned to the Royal Courts of Justice in June, this time venturing inside. The judge said they’d face no penalty or costs because there was no evidence they knew about the NHL injunction before climbing the gantry. Goode is boosted by the win, though if they breach the injunction again, they’ll be on the hook with everyone else.
Civil disobedience is disruptive by design, so it’s no surprise that governments, business and much of the public want it to go away. But it is, and always has been, a fundamental part of democracy. The United Nations Special Rapporteur for Environmental Defenders, Michel Forst, released a statement in January condemning the severe crackdown on peaceful protest in the UK, including “regressive new laws”. He said he’s “deeply troubled at the use of civil injunctions to ban protest in certain areas”, and that protesters being punished twice for the same action is “a matter of grave concern”.
There’s a video of Burns and Goode defiantly standing outside the Royal Courts of Justice, as police officers diligently unglue them. As they’re escorted into police vans they continue their appeal to the moral conscience of the public—and those in power. Will the next government heed the concerns of Forst and others and seek a different social compact between the courts and protesters? Will it release the grip of anti-protest injunctions on our justice system?
