The Independent 26 September reports that three anti-fracking activists have been jailed for halting a convoy of lorries in a four-day protest outside a shale drilling site. Simon Roscoe Blevins, Richard Roberts, and Rich Loizou, are thought to be the first environmental demonstrators to receive custodial sentences in the UK since 1932. Blevins and Roberts were each imprisoned for 16 months and Loizou was jailed for 15 months at Preston Crown Court on Wednesday. Further reports at The Guardian 26 September , Channel 4 News (video) and The Canary.
As is so often the situation, sentencing remarks have not (yet) been published by the Judiciary and so our views are informed by media reports.
The men were sentenced
for the common law offence of Public Nuisance.
Private Nuisance is a tort (civil wrong) which developed at common law and the law was reviewed by the Supreme Court in Coventry v Lawrence  UKSC 13 and a good article on the case by David Hart QC is at UK Human Rights Blog.
Public Nuisance is both a tort and a common law offence.
The Attorney General is able to bring proceedings with a view to restraining the tort of public nuisance - see Attorney General (on the relation of Glamorgan County Council v PYA Quarries  EWCA Civ 1 - Denning, Romer and Parker LJJ. A private individual can sue for the tort only if he or she suffers damage over and above the effect on the general public.
The offence of Public Nuisance was considered by the House of Lords in R v Rimmington and R v Goldstein  UKHL 63
In R v Rimmington, Lord Bingham noted (para 31) - " ... the circumstances in which, in future, there can properly be resort to the common law crime of public nuisance will be relatively rare."
Public Nuisance as an offence was also the subject of a Law Commission report published in June 2015 - Simplification of the Criminal Law: Public Nuisance and outraging Public Decency. The Commission recommended that Public Nuisance be made a statutory offence covering any conduct which endangers the life, health, property or comfort of a section of the public. Or obstructs them in the exercise of their rights.
Unlike most crimes of comparable seriousness, public nuisance contains no requirement that the defendant intended or was reckless about whether his conduct caused the relevant kind of harm. The fault requirement is the same in the crime as in the tort: namely, that the defendant ought reasonably to have foreseen the consequences of the act or omission. The Law Commission recommended reform so that nuisance offence would require that the defendant either intended or was reckless in the act.
The underground existence of extensive shale gas has been known for several years. In September 2011, Oil Price published Fracking coming to the UK following massive natural gas discovery in Lancashire where it was said that Cuadrilla Resources has discovered "huge underground deposits of natural gas in Lancashire, up to 200 trillion cubic feet of gas in all."
In 2016, the government overturned refusal of planning permission for fracking at Preston New Road - The Guardian 6 October 2016.
Hydraulic fracturing, or ‘fracking’, involves the extraction of natural gas from shale formations deep underground using vertical and horizontal drilling technologies and vast quantities of chemically treated water injected into the wells under high pressure. Although commercial fracking has been underway in the USA since the 1990s, the industry is in its infancy elsewhere in the world.
In July and September 2018, Cuadrilla received hydraulic fracturing consents from the Department for Business, Energy and Industrial Strategy (BEIS) for horizontal shale exploration well at its Preston New Road site in Lancashire. See Government - Cuadrilla.
The first horizontal shale well was completed by Cuadrilla in April 2018 through the Lower Bowland shale rock at approximately 2,300m below surface and extends laterally for some 800m. The second horizontal shale gas well was completed in July 2018 and was drilled through the Upper Bowland shale at an approximate depth of 2,100m below the surface, extending laterally for some 750 metres through the shale. These are the first two horizontal shale exploration wells to be drilled onshore in the UK. Following hydraulic fracturing of these first two horizontal wells Cuadrilla will run an initial flow test of the gas produced from both wells for approximately six months.
A considerable number of Cuadrilla companies exist. It is Cuadrilla Bowland Ltd which manages the site at Preston New Road, Lancashire.
It is beyond dispute that fracking is capable of environmental damage. It is not possible to cover this topic adequately in a post of this nature but the Environment Agency included fracking as a potential risk to water quality in its February 2018 report - State of the Environment: Water Quality and see Drill or Drop 19 February 2018.
Fracking does not only influence ground water but most environmental elements including but not limited to air, water, soil, rock, vegetation, wildlife, human, and many other ecosystem components - see Science Direct - February 2017
This August 2013 Enviroment Agency Risk assessment considered various possibilities for environmental harm which could arise from fracking.
The Petroleum Act 1998 defined the word "petroleum" to include any mineral oil or relative hydrocarbon and natural gas existing in its natural condition in strata. Rights in petroleum (as so defined) are vested in Her Majesty - (in effect, the government) - and licences are required to search and bore for and get petroleum.
The Infrastructure Act 2015 made significant changes to the law relating to petroleum and geothermal energy - see Explanatory Notes. Changes included the introduction of a statutory right to carry out works at such depths that it would not affect a landowner’s use of the land. Also, the Act provided for certain safeguards for Onshore hydraulic fracturing.
The European Commission has been concerned with Shale Gas extraction and also see EU Commission: Environment. Unsurprisingly, Brexit has raised concerns that the regulatory regime for Shale Gas extraction will change - for example, see The Independent 21 June 2016
It is against the above complex background that some have decided to protest against fracking and the potential for environmental damage. The European Convention on Human Rights does not give a specific right to protest but there is Article 10 (Freedom of Expression). In England and Wales there is neither a statutory right to protest nor a common law right.
Nevertheless, PROTEST has a lengthy history. So far as English common law was concerned, a person was permitted to do that which was not prohibited by law. Thus, in common law, peaceful protest is a sort of negative right - we may do it because it is not prohibited.
Protest is restricted by numerous legal considerations. There is even old legal authority that certain kinds of assemblies or riots might come within the treasonable head of "levying war" under our immensely unsatisfactory law of treason: Dammaree's Case (1710) 15 ST 522.
The reign of Charles I saw use of an armed force aimed at the destruction of all brothels and in Henry VIII's time there was an insurrection for the purposes of fixing a wage rate. In 1839, a "Special Commission" comprising Chief Justice Tindal, Baron Parke and Williams J was set up to try alleged offences committed during disturbances at Monmouth. Subsequent centuries saw the activities of Chartists ; Suffragettes/Suffragists ; "right to roam protests 1932", the Aldermaston Marches ; Miner's Strike of 1984-5 ; riots against the "Poll Tax" ; Iraq war protest and G20 protests in 2009.
Protest - often in the face of vested interests imbued with immense wealth and power - has frequently been a way by which legislators have been forced to eventually bring about beneficial changes.
The sentence imposed at Preston:
The essential facts of the 48 hours protest are set out by The Guardian 26 September.
Counsel for the prosecution said the police argued that the demonstration resulted in significant travel disruption, causing the road to be closed initially until a contraflow was established. Police said local residents had had their lives disrupted and local businesses suffered a loss of trade. Lorry drivers had been told to stay with their cabs and were unable to return home. He said the protest had cost the police £12,000 and Cuadrilla approximately £50,000.
The judge was HHJ Robert Altham who was appointed Circuit Judge in July 2011 and is a descendant of Sir James Altham who conducted the notorious Lancashire Witch Trial of 1612.
The Judge is reported as saying that he thought the three men posed a risk of reoffending and could not be rehabilitated as “each of them remains motivated by an unswerving confidence that they are right." In passing one notes that numerous protesters of the past -including the suffragettes - had an unswerving confidence that they were right! The judge went further and said that even at their trial they felt justified by their actions.
Given the disruption caused in this case, the judge concluded that only immediate custody could achieve sufficient punishment though the judge noted that the defendants were motivated by a serious concern for the environment but they saw the public as “necessary and justified collateral damage."
In the period 2003-15, around 15 defendants each year were tried for public nuisance and 22 were tried in the Crown Court - (see para 3.7 HERE). One defendant was sentenced to life imprisonment. Yes - LIFE is the maximum sentence. Technically, as a common law offence, the sentence is "at large" so that the judge can impose whatever sentence is deemed appropriate.
A sentence of imprisonment is appropriate if neither a fine alone nor a community sentence can be justified (Criminal Justice Act 2003 s.152). Any such sentence must be for the shortest term that in the opinion of the court is commensurate with the seriousness of the offence(CJA 2003 s.153). Having determined those points there is the question of whether the sentence can be suspended - (CJA 2003 s.189). A fourth man, Julian Brock (47), was given a 12-month suspended sentence after pleading guilty to the same charge.
These sentences of 16 months appear to be imposed purely for punishment and / or deterrent purposes. To me they seem excessive and bordering on the oppressive. I join with Caroline Lucas MP who has condemned the sentences - The Guardian 26 September - as a "clampdown on peaceful protest" reeking of "desperation from the fracking industry and the government."
Finally, it is worthy of note that one of the men (Roberts) was represented pro bono by Kirsty Brimelow QC - Charity Today.
|Cuadrilla Site - Preston|