BAA climate camp Injunction: What’s Happened At Court & legal briefing

Judge’s read­ing (reports from first two days below) —

Deliv­er­ing her rul­ing in a 90-speech this morn­ing, Mrs. Jus­tice Swift struck out most of BAA’s appli­ca­tion, point­ing out that much of their evi­dence was based on news reports and web sites, and rul­ing that, as there is a “diver­gence of inter­est” with­in the groups named, [with the excep­tion of Plane Stu­pid], they should not be tar­get­ed.

She said it is regret­table that Geral­dine Nichol­son was ever named in the appli­ca­tion, and that there had been no sug­ges­tion –despite par­tic­i­pa­tion in pre­vi­ous demon­stra­tions– that Joss Gar­man or Leo Mur­ray had ever harassed or intend­ed to harass any­one.

She has there­fore delet­ed the major­i­ty of BAA’s appli­ca­tion, sub­sti­tut­ing word­ing of her own, intend­ed to allow law­ful protest, [as enshrined by right in Arti­cles 10 and 11 of the Euro­pean Con­ven­tion on Human Rights], although pre­vent­ing unlaw­ful dis­rup­tion of air­port oper­a­tions, [as already cov­ered by Heathrow’s by-laws].

The word­ing of her draft is being stud­ied while the court adjourns for lunch. She is pre­pared to fine-tune the details, when the court resumes at 2 o’clock.
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1st August -
Please note: this is an arti­cle writ­ten after tele­phone con­tact with peo­ple out­side the court. Please see the oth­er report here.

The High Court in Lon­don was the scenery of some fun­ny encoun­ters today as BAA put for­ward their case for an injunc­tion they served indi­vid­u­als from cer­tain anti-air­port groups ear­li­er last week. We’ll spare you all the bor­ing details, so let’s jump to the excit­ing bits. Basi­cal­ly, the whole thing was bad­ly put togeth­er from BAA’s side. Tim­o­thy Law­son Crut­ten­den (TLC) was rep­re­sent­ing BAA in this case, inter­est­ing­ly enough the same lawyers firm that tried to slap injunc­tions on pro­test­ers at Brighton’s weapons man­u­fac­tur­ers EDO. This even­tu­al­ly failed mis­er­ably…

Any­how, the start of the hear­ing was brought back to the after­noon and once in full swing, BAA put for­ward some evi­dence to give their injunc­tion some sub­stance. Their evi­dence were some arti­cles from the Evening Stan­dard and the Times news­pa­pers and a chap­ter from the Eco Defence Hand­book. Anoth­er bit of evi­dence was an arti­cle about last years Cli­mate Camp in which it was said that local peo­ple had joined the pro­test­ers and men­tiones were made about rad­i­cal direct action tac­tics. Inter­est­ing­ly enough, the jour­nal­ist who actu­al­ly wrote that was in court today as well and said that some of the things in the arti­cle he had just ‘put in’ or made up. As one does…

Evi­dence like this is classed as ‘hearsay’ as it is no direct evi­dence and there­fore pret­ty irrel­e­vant in court.

It was unclear whether the injunc­tion applied to the named peo­ple with­in the var­i­ous organ­i­sa­tions they served the papers to, or all mem­bers from those organ­i­sa­tions. If it would apply to all mem­bers of the named organ­i­sa­tions (over 5 mil­lion), it would prob­a­bly be dif­fi­cult to enforce but if it only applied to cer­tain indi­vid­u­als, than the injunc­tion would­n’t have a lot of effect.

BAA was so unclear about this, the judge was said to be very con­fused and gave them until tomor­row morn­ing to get things straight: who are you ask­ing to be injunct­ed and for what rea­sons? The whole injunc­tion busi­ness seems to be a total joke, poor­ly pre­pared and main­ly used as a scare tac­tic. As things cur­rent­ly look, it won’t have any effect on the actu­al camp which is to take place from the 14th August. A spokesper­son for the Camp For Cli­mate Action was a lot clear­er than BAA: ’ This injunc­tion is total­ly irrel­e­vant to us. We won’t be intim­i­dat­ed or bul­lied. The camp is going ahead! ’

2nd August -
BAA used most of the morn­ing to put for­ward their case. It basi­cal­ly boiled down to a cou­ple of things. First­ly, BAA thinks that pos­si­ble dis­rup­tion caused by protests may high­t­en the risk of ‘Iraqi-style ter­ror­ism’ at the air­port. One of the exam­ples the BAA lay­w­er Tim­o­thy Law­son-Crut­ten­den used was that pro­test­ers might block­ade cars going to the air­port which in turn could ‘expos­ing them to a ter­ror­ist strike’. He added: ‘of course we see that in Bagh­dad every day’. Right.

The defence lawyer spent the after­noon putting for­ward that there are already far reach­ing laws in place as well as a com­pe­tent police force who will be able to take care of such events. An injunc­tion would just con­fuse the sit­u­a­tion, rather than add to it. The lay­w­er for Trans­port for Lon­don and the Lon­don Under­ground, agreed, urg­ing the court to throw out the injunc­tion, call­ing it ‘nei­ther nec­es­sary, desir­able nor clear’.

Sec­ond­ly, although BAA hint­ed yes­ter­day that they might not seek an injunc­tion for all mem­bers of organ­i­sa­tions sup­port­ing the camp for cli­mate action, it made it clear today that it is seek­ing to injunct the sup­port­ers besides the 4 named peo­ple on the injunc­tion.

The judge, Mrs Jus­tice Swift, said she will need the week­end to think things over, so a rul­ing can be expect­ed on Mon­day morn­ing. The hear­ing will con­tin­ue today (Fri­day) in the morn­ing, for a cou­ple of hours.

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Heathrow’s Injunc­tion — What it means

Every­thing you need­ed to know but did­n’t have a clue what to ask about Heathrow’s injunc­tion against pro­test­ers. Designed for the lay per­son, it is essen­tial read­ing for cli­mate campers.

Heathrow’s Injunc­tion – What it actu­al­ly means.

To say that Heathrow Air­port have shot them­selves in the foot with their mis­guid­ed attempt to impose an injunc­tion against all anti-air­ports pro­tes­tors, not just the Camp for Cli­mate Action, is an under­state­ment. There is an injunc­tion, but it is tooth­less. The main aim of the injunc­tion is to scare peo­ple off from com­ing to the camp and from tak­ing action at Heathrow Air­port so we want to explain what the injunc­tion real­ly means for Cli­mate Campers.

THE TERMS OF THE INJUNCTION

Who the injunc­tion applies to:
As well as a few named indi­vid­u­als, the injunc­tion has been grant­ed against a neb­u­lous group of ‘pro­tes­tors’, where pro­tes­tor means the anti-avi­a­tion protest group Plane Stu­pid, its sup­port­ers and those act­ing “in con­cert” with Plane Stu­pid to dis­rupt the oper­a­tion of Heathrow air­port.

What it restricts:
a) tres­pass­ing on Heathrow Airport’s land;
b) any activ­i­ty imped­ing, obstruct­ing or inter­fer­ing with the oper­a­tion of Heathrow Air­port;
c) incit­ing or help­ing oth­ers to do a) or b).

Noth­ing in the terms of the injunc­tion order exceeds cur­rent police pow­ers. Mrs Jus­tice Swift has based her order on exist­ing laws and bye-laws, and has not per­mit­ted the wide restric­tions that Heathrow want­ed.

SO WHAT DOES THIS MEAN FOR THE CLIMATE CAMP?
Noth­ing of sub­stance. The Camp for Cli­mate Action is not cov­ered by the injunc­tion. The Camp for Cli­mate Action is sep­a­rate from Plane Stu­pid. While it may be argued that there are links between indi­vid­u­als in Plane Stu­pid and the Camp, they are sep­a­rate organ­i­sa­tions. The Camp for Cli­mate Action exist­ed before Plane Stu­pid, and is a self-organ­is­ing enti­ty con­trolled by no oth­er organ­i­sa­tion.

ARE YOU COVERED?
The key phrase which deter­mines whether you become a ‘pro­tes­tor’ or not is whether you are act­ing ‘in con­cert’ with Plane Stu­pid and the three named indi­vid­u­als (col­lec­tive­ly called the Defen­dants) to dis­rupt oper­a­tions at Heathrow Air­port. Being part of the Cli­mate Camp does not auto­mat­i­cal­ly make you a ‘pro­tes­tor’ with­in the terms of this injunc­tion. You would need to do some­thing else in addi­tion which would link you with the defen­dants. Expe­ri­ence with oth­er injunc­tions indi­cates that to be act­ing ‘in con­cert’ with the Defen­dants would require you to:
a) be a known activist with Plane Stu­pid;
b) do an action explic­it­ly organ­ised by the Defen­dants for the pur­pose of dis­rupt­ing oper­a­tions at Heathrow Air­port;
c) use mate­ri­als pro­duced by the Defen­dants in an action which either tres­pass­es on, obstructs or inter­feres with Heathrow.

So to be safe we rec­om­mend that you don’t bring any ban­ners or leaflets or oth­er mate­ri­als with any ref­er­ence to Plane Stu­pid on them to the camp or on actions.

The injunc­tion comes to an end on 31st August. After that it dis­ap­pears alto­geth­er unless Heathrow can suc­cess­ful­ly apply to extend it.

SERVICE OF THE INJUNCTION
To be cov­ered by the injunc­tion you have to be served first. If you are not served then you can­not be cov­ered by its terms even if you fall under the def­i­n­i­tion of pro­tes­tor.

To prove you have been served Heathrow has to demon­strate that you were either
a) per­son­al­ly hand­ed a copy of the injunc­tion, or
b) seen / pho­tographed / videoed read­ing a copy of the injunc­tion whether on a web­site or the ones that are like­ly to be post­ed up on their prop­er­ty (this is called ser­vice by sub­sti­tu­tion).

We will deal with what to do about per­son­al ser­vice below, but ser­vice by sub­sti­tu­tion is very dif­fi­cult to prove. The injunc­tion requires Plane Stu­pid, HACAN and Air­port Watch to post the injunc­tion on their web­sites, and no doubt Heathrow will have it on theirs as well. How­ev­er, they still have to prove that you went to those web­sites and explic­it­ly viewed the terms of the injunc­tion – some­thing very dif­fi­cult to do, if not down­right impos­si­ble.

Heathrow will also dis­play the injunc­tion around its premis­es, in par­tic­u­lar on the fences and posts of its perime­ter. The pur­pose of this is to say that you must be aware of the terms if you were in the area. But it is an argu­ment like­ly to fall flat unless they have evi­dence to show that you actu­al­ly read the notices.

The court may decide that if you have been pro­vid­ed with the terms of the injunc­tion by some­one telling you (eg some­one shout­ing it over a mega­phone) then you have been served. How­ev­er there are any num­ber of prob­lems with prov­ing this in court (as has been show to be the case with the police using mega­phones to inform assem­blies of sec.14 orders).

PERSONAL SERVICE
It is very like­ly that, despite the hol­low­ness of their vic­to­ry that BAA will attempt to serve peo­ple per­son­al­ly with a copy of the injunc­tion order. The stan­dard tac­tic, prob­a­bly with the sup­port of the police, is to have spe­cial­ly appoint­ed indi­vid­u­als called ‘process servers’ whose job is to go around hand­ing out copies of the order to peo­ple they think are like­ly to be ‘pro­tes­tors’, and at the same time pho­to / video / record the fact with a descrip­tion of the per­son served.

To be served they must give you a copy of the order, but this can amount to tap­ping you on the body with it and drop­ping it at your feet, even as you are run­ning off. It is like­ly that these process servers will turn up at var­i­ous protests with copies to hand out. They are also like­ly to be out­side the cli­mate camp attempt­ing to serve it on peo­ple com­ing in or out.

You are not required to stand still and sim­ply wait to be served. As they are offi­cers of the court you are not sup­posed to active­ly inter­fere with them serv­ing peo­ple but there is no require­ment for you to make their life easy for them. If some­one dodgy look­ing comes towards you with a sheaf of paper don’t hang around and take it, or open your win­dow to accept it. Don’t let them into the camp – they have no right to be there. In the past peo­ple have been very cre­ative in pro­tect­ing those that have not been served, for instance, form­ing spon­ta­neous group hugs around them or sim­ply stand­ing in a line between them and the process serv­er – process servers are not allowed to break the law to serve the injunc­tion order.

If a process serv­er is being aggres­sive, take action and make com­plaints – the are not allowed to assault peo­ple or act aggres­sive­ly. Video their actions (though not faces of those being served) in case there are any sub­se­quent court cas­es – you have a right to video both process servers and police alike, regard­less of what they say.

And if you have been served with the injunc­tion this does not mean you are auto­mat­i­cal­ly cov­ered by it – you still have to fall into the def­i­n­i­tion of ‘pro­tes­tor’ giv­en above. Sim­ply being a cli­mate camper or involved in a cli­mate camp protest does not mean that.

WHAT IS A BREACH OF THE INJUNCTION
If you are a ‘pro­tes­tor’ with­in the mean­ing of the injunc­tion and you tres­pass on Heathrow Air­port Ltd’s land (there is a map attached to the injunc­tion) then you are in breach of the injunc­tion. You are also in breach if you block­ade any road or oth­er form of trans­port for peo­ple or vehi­cles reach­ing the air­port, as this would amount to inter­fer­ing with or obstruct­ing the oper­a­tion of the air­port. What it does not stop is action against com­pa­nies involved with the air­port being tar­get­ed in their own right. It does not stop leaflet­ing or oth­er law­ful protest activ­i­ties from tak­ing place in any place not cov­ered under the tres­pass clause.

It is not a crim­i­nal offence to breach the injunc­tion as it is a civ­il mat­ter only. You can­not be arrest­ed for breach­ing the injunc­tion, even if the police say oth­er­wise. Note, how­ev­er, you can still be arrest­ed for break­ing the law and local bye-laws relat­ing to tres­pass, etc.

Incit­ing peo­ple to tres­pass, or to impede / inter­fere with Heathrow’s oper­a­tion will also be con­sid­ered to be breach­es of the injunc­tion, but then, only if they can prove that you were served or had knowl­edge that it was breach­ing the injunc­tion. Note, incite­ment can be an offence in its own right depend­ing on what you are incit­ing oth­ers to do.

WHAT HAPPENS IF YOU BREACH THE INJUNCTION
The injunc­tion does not give the police any pow­ers of arrest for breach of the injunc­tion (of course you may still be arrest­ed if you are sus­pect­ed of com­mit­ting a crim­i­nal offence). To pur­sue you for breach of the injunc­tion Heathrow must get the Court’s per­mis­sion, which is decid­ed at a ‘com­mit­tal’ hear­ing. Heathrow will need to first get your name and address in order to serve you with court papers about the com­mit­tal hear­ing. At that hear­ing they will have to prove that you had been served with the injunc­tion, and that you did some­thing that breached the terms of the injunc­tion.

Tech­ni­cal­ly a breach is con­tempt of court, and can car­ry a vari­ety of penal­ties depend­ing on the sever­i­ty of the breach, these range from a con­di­tion­al dis­charge, through fines and jail time. But jail time in par­tic­u­lar is very unlike­ly except for per­sis­tent breach­es. Tak­ing you to court for breach of the injunc­tion is an expen­sive and fair­ly point­less route for Heathrow, and some­thing they are unlike­ly to do as by the time they get you to Court the camp will be over. Most oth­er injunc­tions of this sort, such as the one at the cli­mate camp at Drax last year have proved unen­force­able and have been ignored by pro­test­ers with­out reper­cus­sions.

The pub­lic­i­ty gen­er­at­ed by these injunc­tion pro­ceed­ings has been a fan­tas­tic boost for the Cli­mate Camp itself and the cam­paigns against Heathrow and avi­a­tion in gen­er­al. You couldn’t pay for this sort of cov­er­age. We hope that no one will be deterred from com­ing to the Cli­mate Camp by the injunc­tion – that would be a sur­ren­der of our right to free­dom of protest and expres­sion. We can all be at the Camp, sure in our right to be there.

FINAL NOTES ON THE PROTECTION FROM HARASSMENT ACT
The out­come of these injunc­tion pro­ceed­ings is a vic­to­ry for pro­test­ers in the UK and has made a laugh­ing stock of Heathrow’s own­er BAA plc, as well as their lawyer Tim­o­thy Law­son-Crut­ten­den, the self-declared ‘mar­ket-leader’ in these types of injunc­tions. Mrs Jus­tice Swift threw out BAA’s appli­ca­tion for an injunc­tion under the Pro­tec­tion from Harass­ment Act (PHA) forc­ing BAA to fall back on the more tooth­less com­mon law option, so dam­ag­ing great­ly the abil­i­ty of cor­po­ra­tions to use the PHA to sti­fle legal protest.

For the last four years cor­po­ra­tions have been using the PHA to attack legit­i­mate protest. Orig­i­nal­ly designed to pro­tect peo­ple from stalk­ers, the Gov­ern­ment and com­pa­nies who are the tar­get of per­sis­tent protests have been rel­a­tive­ly suc­cess­ful in attempt­ing to declare oth­er­wise law­ful forms of protest such as march­es and leaflet­ing, the use of mega­phones, drums, whis­tles etc as amount­ing to harass­ment and there­fore have been able to obtain court orders restrict­ing or ban­ning protests out­right. The mis­use of this law has lead to a dra­con­ian infringe­ment of the rights to protest and assem­ble. It has also allowed cor­po­ra­tions to obtain court orders based on low­er stan­dards of proof than would be allowed in the crim­i­nal courts, yet the penal­ties for breach­ing the orders made are crim­i­nal in nature.

As a last point, we would like to dis­tance our­selves from the neg­a­tive com­ments by some fight­ing the injunc­tion in refer­ring to ‘ani­mal rights nuts’. The ani­mal rights move­ment has been at the front line fight­ing the dra­con­ian terms of injunc­tions under the Pro­tec­tion from Harass­ment Act for four years now. These injunc­tions have nev­er been about stop­ping ille­gal activ­i­ties, but about curb­ing the right to law­ful protest. The out­come of these cur­rent injunc­tion pro­ceed­ings is anoth­er step in that same fight.

legal.collective3@yahoo.co.uk