SHELL UK LTD AGAINST STICHTING GREENPEACE COUNCIL AND ANOTHER [2020] ScotCS CSOH_7 (15 January 2020)

BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> SHELL UK LTD AGAINST STICHTING GREENPEACE COUNCIL AND ANOTHER [2020] ScotCS CSOH_7 (15 January 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_7.html
Cite as: [2020] CSOH 7, 2020 GWD 5-73, [2020] ScotCS CSOH_7, 2020 SLT 235

[New search] [Context] [View without highlighting] [Printable PDF version] [Help]


Page 1 ⇓
OUTER HOUSE, COURT OF SESSION
[2020] CSOH 7
A335/19
OPINION OF LADY CARMICHAEL
In the cause
SHELL UK LIMITED
against
STICHTING GREENPEACE COUNCIL AND ANOTHER
Pursuer
Defenders
15 January 2020
Pursuer: Barne QC; Pinsent Masons LLP
Defenders: Mure QC; Harper Macleod LLP
[1]       The pursuer seeks to interdict the defenders by themselves or by their agents,
employees, volunteers or servants, or by anyone acting on their behalf or under their
auspices, from approaching within 500 metres of or boarding or attempting to board four
offshore installations: Brent Alpha, Brent Bravo, Brent Charlie and Brent Delta, (“Alpha”,
“Bravo”, “Charlie” and “Delta”) and from instructing, procuring, encouraging or facilitating
others to do so.
[2]       The matter came before me as a motion for interim interdict on 28 November 2019.
The motion had called on an earlier occasion, upon which the defenders had granted an
undertaking which was due to expire on 29 November 2019.
Page 2 ⇓
2
[3]       The pursuer avers that the four installations are at various stages of operation and
decommissioning. Bravo and Delta have had their topsides removed. Only their legs and
cells remain in place, along with navigational aids which alert vessels to their continuing
presence. The last personnel occupying Alpha were removed on 20 October 2019. It is
planned that between April and May 2020 four of the six platform legs will be cut with the
topsides being lifted in June, and the removal of the upper jacket commencing in July 2020.
Charlie remains in operation, but decommissioning activities are being carried out. Alpha
has metal legs, whereas the others have concrete legs.
[4]       It is a matter of admission in the pleadings that on 14 October 2019, two Greenpeace
protesters boarded Alpha without permission in order to protest against the proposed
method of decommissioning the platforms in the Brent oil field. They erected a banner on
Alpha which stated “Shell! Stop Ocean Pollution” above the word “Greenpeace”. One or
more of the protesters scaled one of the legs of Bravo without permission. A second banner
was erected which stated “Clean up your mess, Shell”. The protesters approached Alpha
and Bravo on rigid hull inflatable boats (“RHIBs”) which were launched from the Rainbow
Warrior. The protesters remained in position for approximately 24 hours, after which, due
to deteriorating weather, they removed themselves and returned to the Rainbow Warrior.
At least three protesters, using climbing equipment, were involved in painting the words
“Toxic Waste” in large letters onto the side of one of the legs of Bravo.
[5]       The context for that course of action is the decommissioning of the pursuer’s
installations in the Brent field. The Convention for the Protection of the Marine
Environment of the North-East Atlantic (OSPAR) is the current legislative instrument
regulating international cooperation on environmental protection in the North-East Atlantic.
Work carried out under the Convention is managed by the OSPAR Commission, which is
Page 3 ⇓
3
made up of representatives of the governments of the 15 signatory nations, and
representatives of the European Commission, representing the European Union. The first
defender has observer status, so that it participates in meetings of the OSPAR Commission
and contributes to its work, and to the development of policy, but does not have voting
rights.
[6]       OSPAR Decision 98/3 on the Disposal of Disused Offshore Installations (“Decision
98/3”) provides that the dumping, and the leaving wholly or partly in place, of disused
offshore installations within the maritime area is prohibited. Derogations are available in
respect of certain categories of installation, if the competent authority of the relevant
Contracting Party is satisfied that an assessment shows that there are significant reasons
why an alternative disposal, such as leaving part of the installation in place, is preferable to
reuse or recycling or final disposal on land. Before a decision is taken to issue a permit for
an alternative method of disposal, the relevant contracting party is required to consult the
other contracting parties.
[7]       As part of the decommissioning programme, the pursuer is seeking permits for
derogations in terms of Decision 98/3. In relation to Bravo, Charlie and Delta, the proposed
derogations involve leaving in situ the concrete gravity based structures and cell sediment
contained within the structures on the basis that the risks associated with their removal are
too great when viewed against the assessed risks to the local environment of leaving them in
place. In respect of Alpha, the proposal is to remove the upper part of the steel jacket to
84.5 metres below sea level with decommissioning in situ of the jacket footings.
[8]       The relevant authority in respect of the United Kingdom is the Offshore Petroleum
Regulator for Environment and Decommissioning (OPRED). As part of the consultative
process, two contracting parties, Germany and the Netherlands, have objected to the
Page 4 ⇓
4
pursuer’s proposals. OSPAR held a special consultative meeting on 18 October 2019 in
London at which interested parties could make representations in relation to the proposed
derogations. At the meeting, OPRED committed to further discussions with parties before
making any final decision on whether or not to grant the permits sought by the pursuer.
[9]       It will be a decision for OPRED and the UK Government whether or not permits for
the derogations will be issued. It appears that both the oil industry and the defenders
regard the decision regarding derogation to be of great significance, and having the
potential to set a precedent in relation to the region regulated by OSPAR.
[10]       The pursuer maintains that the sediment contained in the base of the oil storage cells
on Bravo, Charlie and Delta does not flow and is difficult to move, and that it contains no
significant quantities of non-biodegradable compounds. They represent that when the oil
storage cells degrade over time, the sediment will remain largely contained in the footprint
of the structure, without significant impact on the local environment. The pursuer made
representations to that effect in an email to Greenpeace dated 17 October 2019 (6/7 of
process).
[11]       The defenders are concerned that, if the structures are left in the ocean as the pursuer
proposes, they may degrade and result in pollution of the marine environment. They
complain that there has been inadequate assessment of the risks. They refer in the pleadings
to a report and a review carried out for, respectively, the governments of Germany and the
Netherlands, which raise concerns as to the adequacy of the derogation assessments by the
pursuer and by OPRED. They have produced the report and review. They say that a
number of other prominent non-governmental organisations take the same view. They have
produced a letter from Scottish Wildlife Trust setting out that organisation’s concerns (7/1 of
process).
Page 5 ⇓
5
Submissions
Pursuer
[12]       The pursuer submitted that the Brent field was situated in a very harsh marine
environment. The protesters who took part on 14 October 2019 had put themselves in
danger. Although the summons merely contained an averment that they had put
themselves in extreme danger, they had boarded a spider deck at Alpha that was no longer
accessible to the pursuer’s employees and contractors, because of its condition. There was a
risk of rapid deterioration in weather conditions and freak waves. Protesters had climbed
on the legs of Bravo, using climbing equipment. The stability and security of the items to
which they had moored that equipment must have been entirely untested. The pursuer now
only had one support vessel in the region, serving Charlie, and that would not be able to
respond rapidly to any incident. Whether or not the pursuer had any legal duty to rescue a
protester who got into difficulties, it was likely that the pursuer’s personnel would try to do
so, thereby putting themselves in danger.
[13]       Other agencies, such as police and coastguard might require to intervene, and might
themselves be endangered. Counsel referred to Greenpeace action taken against the Paul B
Loyd Jnr rig in the Cromarty Firth in June 2019. The defenders had referred to it in their
own Note of Argument. Counsel referred to press articles relating that five protesters had
pled guilty to breaches of the peace libelling conduct involving placing the accused and
others in danger. Copy complaints were produced. The sheriff was said to have noted that
the activities of the protesters resulted in the RNLI and coastguard being diverted from a
possible legitimate emergency elsewhere. The press article narrated that the court was told
Page 6 ⇓
6
that when the platform was boarded it was in the process of raising anchors, which were
swinging loosely.
[14]       Parliament had made provision for a 500 metre safety zone around offshore
installations, which could be entered only for purposes specified in Regulation 21H of the
Offshore Installations and Pipeline Works (Management and Administration Regulations
1995 (SI 1995/738), or with the consent of the “duty holder” (the pursuer, in the present
context). Entry to the zone other than for those purposes, or pursuant to an exemption from
the requirement to observe it, was an offence: Petroleum Act 1987 sections 21, 23 provided:
21. (1) Subject to subsections (3) and (4), there shall be a safety zone around every
installation which, or part of which, is in waters to which subsection (7) applies if
(a) it is stationed there so that any of the activities mentioned in subsection (2)
may be carried out on, from or by means of it, or
(b) it is being assembled at a station where it is to be used for such a purpose, or
(c) it remains or is being dismantled at a station where it has been used for such
a purpose.
(2) The activities referred to in subsection (1) are
(a) the exploitation or exploration of mineral resources in or under the shore or
bed of waters to which subsection (7) applies;
(aa) the exploration of any place in, under or over such waters with a view to the
storage of gas in such a place;
(ab) the conversion of any place in, under or over such waters for the purpose of
storing gas;
(b) the storage of gas [in, under or over]2 such waters or the recovery of gas so
stored;
(ba) the unloading of gas at any place in, under or over such waters;
(c) the conveyance of things by means of a pipe, or system of pipes, constructed
or placed on, in or under the shore or bed of such waters;
(d) the provision of accommodation for persons who work on or from an
installation satisfying the condition in [any of paragraphs (a) to (c)]4 of
subsection (1).
(3) Subsection (1) shall not apply to an installation in respect of which an order
under section 22 has effect, or to one which
(a) is connected with dry land by a permanent structure providing access at all
times and for all purposes, or
(b) does not project above the sea at any state of the tide.
(4) The Secretary of State may by order exclude any installation or any
description of installation from the operation of subsection (1), and may do so
generally or by reference to specified activities or locations or in any other way.
Page 7 ⇓
7
(5) A safety zone established by subsection (1) shall extend to every point within
500 metres of any part of the installation (ignoring any moorings) and to every
point in the water which is vertically above or below such a point.
(6) A safety zone established by subsection (1) may extend to waters outside
waters to which subsection (7) applies.
(7) The waters to which this subsection applies are
(a) tidal waters and parts of the sea in or adjacent to the United Kingdom up to
the seaward limits of the territorial sea, and
(b) waters in an area designated under section 1(7) of the Continental Shelf Act
1964.
(8) In this section “gas” means gas within the meaning of section 2(4) of the
Energy Act 2008.
23. (1) Where by virtue of this Act there is a safety zone around an installation, no
vessel shall enter or remain in the zone except
(a) in the case of a safety zone established by an order under section22, in
accordance with that order, or
(b) in that or any other case, in accordance with regulations made by the
Secretary of State or a consent given by the Health and Safety Executive.
(2) If a vessel enters or remains in a safety zone in contravention of subsection (1)
then, subject to subsection (3), its owner and its master shall each be guilty of an
offence and liable
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment for a term not exceeding two
years or to a fine or to both.
(3) It shall be a defence for a person charged with an offence under this section to
prove that the presence of the installation or the existence of the safety zone was
not, and would not on reasonable enquiry have become, known to the master.
(4) Where the commission by any person of an offence under this section is due
to the act or default of some other person, that other person shall also be guilty of
that offence and shall be liable to be proceeded against and punished
accordingly.
(5) Where an offence committed by a body corporate under this section is proved
to have been committed with the consent or connivance of, or to be attributable
to any neglect on the part of, any director, manager, secretary or other similar
officer of the body corporate or any person who was purporting to act in any
such capacity, he as well as the body corporate shall be guilty of that offence and
shall be liable to be proceeded against and punished accordingly.
(6) Where the affairs of a body corporate are managed by its members,
subsection (5) shall apply in relation to acts and defaults of a member in
connection with his functions of management as if he were a director of the body
corporate.
(7) Proceedings for an offence under this section may be taken, and the offence
may for all incidental purposes be treated as having been committed, in any
place in the United Kingdom.
Page 8 ⇓
8
(8) In this section “vessel” includes a hovercraft, submersible apparatus (within
the meaning of [section 88(4) of the Merchant Shipping Act 1995]2) and an
installation in transit; and “master”
(a) in relation to a hovercraft, means the captain,
(b) in relation to submersible apparatus, means the person in charge of the
apparatus, and
(c) in relation to an installation in transit, means the person in charge of the
transit operation.
Regulation 20 of the 1995 Regulations made provision for the HSE to grant exemptions in
relation to the 500 metre zone. The purpose of the zone was to protect installations,
particularly from the risk of collision with other vessels.
[15]       The common law protected the pursuer’s interests in the installations: Shell v
McGillivray 1991 SLT 667; Phestos Shipping v Kurmiawan 1983 SC 185. In the present case
there had been both unlawful occupation and criminal damage, in the form of the painting
on the leg of Bravo. Vessel operations linked to preparatory leg strengthening works on
Alpha had had to be stopped as a result of the protest, and the contractor had submitted a
claim of £100,000 for an additional day for the lost time.
[16]       There were grounds for apprehending that the defenders would seek to occupy an
installation in the Brent field. Boarding and occupation was a means of protest they had
used before. They had been invited to confirm they did not intend to carry out such a
protest, but had not responded. Their press releases evinced an intention to pursue the issue
of the decommissioning of the installations. Particular reference was made to an article on
the Greenpeace website dated 25 November 2019 referring to the present proceedings, and
including the phrase: “Shell can try to shut us up, but we will only get louder” (6/17). The
opposition to the motion indicated an intention to resume the protest.
[17]       The balance of convenience favoured the pursuer. The order sought did not prevent
the defenders protesting by other means. I should bear in mind that the defenders were not
Page 9 ⇓
9
without a voice. They had observer status in relation to the proceedings of the OSPAR
commission. The pursuer raised safety issues. It might not be possible to determine on the
basis of submissions whether those were well-founded, and the status quo should be
maintained in the meantime. It was impossible to say how long protesters might remain if
they boarded again. The Brent Spar protest in 1995 had lasted almost a month.
[18]       The submissions by the defenders regarding A10 and A11 ECHR required the court
to carry out a balancing exercise, which again might require the court to find facts on the
basis of evidence in due course, and the status quo should be maintained at this stage. I did
not understand Mr Barne to dispute that those articles were engaged. Any interference with
the rights protected by A10 and/or 11 would be prescribed by law: Steel and others v United
Kingdom (1998) 28 EHRR 603, paragraph 145. It would pursue a legitimate aim, namely
safety and the protection of property rights. As to proportionality, and whether the
restriction would be necessary in a democratic society, the state enjoyed a greater margin of
appreciation in relation to restrictions on the time, location or manner of public assemblies
than in relation to content-based restrictions: Lashmankin and others v Russia (2019) 68
EHRR 1, paragraph 417.
[19]       There was no absolute right to choose the forum in which protest was to take place:
Appleby v United Kingdom (2003) 37 EHRR 38. In particular there was no right to protest on
privately owned property. The ordinary law of civil trespass constituted a limitation on the
exercise of the rights protected by A10 which was according to law and unchallengeably
proportionate. A10 did not confer a licence to trespass on other people’s property in order
to give voice to one’s views: Richardson v Director of Public Prosecutions 2014 AC 635,
Lord Hughes, paragraph 3. Authorities cited by HHJ Pelling QC in Manchester Ship Canal
Page 10 ⇓
10
Developments Ltd v Persons Unknown [2014] EWHC 645, at paragraphs 28 to 37 supported
that proposition.
[20]       The order sought would not represent any significant restriction on the ability of the
defenders to protest, to express their views, and to exercise their right of freedom of
assembly in order to do so. Mr Barne referred to Driemann v Norway, (app no 33678/96), an
admissibility decision in which the court drew a distinction between activity aiming to
convey disapproval of an activity, and activity aimed at disrupting the activity. States had a
wide margin of appreciation in their assessment of the necessity of taking measures to
restrict the latter sort of activity. The court had attached weight to the fact that the purpose
of the measure was to ensure the efficient implementation of the legal protection of lawful
exploitation of the living resources in the respondent state’s exclusive economic zone.
Defenders
[21]       Mr Mure opened his submission by referring to Lord Hoffmann’s comments in R v
Jones (Margaret) [2007] 1 AC 136, at paragraph 89, regarding the role of civil disobedience in
a democratic society. He went on to make submissions about the factual background, and
in particular about the pursuer’s averments that the protesters had put themselves in
danger. He referred to affidavits produced by the defenders. These related principally to
the safety measures undertaken by the defenders when planning for and executing protests
such as that of 14 October 2019. The defenders carried out open source research into the
installations, and spoke to people who had worked offshore. They used their own
experience. They studied available documents and technical drawings relating to the Brent
field. They risk assessed the venture. Those involved had certificates as to their medical
fitness. All activists were trained, and some were IRATA (International Rope Trade
Page 11 ⇓
11
Association) certified. The activists were trained in non-violent direct action techniques, and
had been on climbing training days. They were trained in first aid.
[22]       The Rainbow Warrior did not enter the 500 metre zone but served as a support
vessel. RHIBs were used to “scout” the approaches to the installations. The RHIBs
remained in the water at all times. Weather conditions were monitored. Watch keepers
monitored the standby boat drivers, and maintained radio contact with the activists. The
decision to depart after 24 hours, having monitored the weather, was evidence both of a
proportionate protest and a commitment to safety.
[23]       The authorities referred to in Manchester Ship Canal Developments all related to
lengthy occupations. The balance as to proportionality was different when direct action of
shorter duration, such as undertaken on 14 October, which had been for only 24 hours, was
in issue.
[24]       An interim interdict would represent an interference with the rights protected by
A10 and A11 ECHR. Like Mr Barne, Mr Mure focused on proportionality. He did not
dispute that a restriction would be prescribed by law, or that the interests of safety and the
protection of property were legitimate aims. He submitted that nine relevant factors could
be identified in the jurisprudence of the Strasbourg court:
(i) The exceptions to the right to protest must be narrowly interpreted: Annenkov
v Russia (app no 31475/10, 25 July 2017), [2017] ECHR 726, paragraph 131.
(ii) A balance must be struck between the interests at stake: Kudrevičius and others
v Lithuania (2016) 62 EHRR 34, paragraph 144. This approach had been
applied by the Amsterdam District Court in Shell Nederland Verkoopmaatshapij
BV v Stichting Greenpeace Nederland and Stichting Greenpeace Council and a
related case brought against the same defenders by a number of other Shell
Page 12 ⇓
12
companies (cases 525686/KG ZA 12-1250 HJ/JWR and 526023/KG ZA 12-1271
HJ/JWR) on 5 October 2012. The cases had involved protests at petrol stations
and operational sites against Shell’s activities in the Arctic. The court had
said at paragraphs 5.5-5.9:
“5.5 The basic principle is that organisations such as Greenpeace are in
principle free to take action and to make their views publicly known. The
sole fact that such action causes inconvenience to the company targeted
by the action in this case Shell does not mean that such action is
wrongful.
In the case of the actions that prompted Shell to demand a prohibition on
future action, the activities in question are activities that may be
prohibited under criminal law (eg the disabling of petrol pumps, which
may be punishable under criminal law on the grounds that it constitutes
damage to property) or, if they are not punishable, activities of which it
can be claimed that they may be wrongful. The wrongfulness may be
attributable to a violation of a right (ownership of the petrol pump, for
example) or contravene the unwritten duty of care. Hindering customers
from purchasing the products or services of a specific company may
constitute a breach of the duty of care if it is know that this will result in
damage to that company (ie loss of sales). It can also be unlawful to
occupy business premises or to hinder operations there in such a way that
damaging consequences can be expected to result. In view of these
norms, the right to take action is not unlimited. Greenpeace’s interest in
being able to express its opinion freely and in a forceful manner had to be
weighed against the legitimate (business) interest of Shell.
Account has to be taken of the possibility that Shell may have to accept
the cost of a certain loss of sales resulting from the action and that it will
not be able to seek recourse to Greenpeace Nederland et al, and action
cannot therefore be completely prohibited in advance simply because it is
damaging to Shell.
5.6 The interests referred to above can generally be weighed against each
other only on the basis of the specific facts and circumstances of the case.
With regard to future actions, to which Shell’s claims relate, it is at this
stage possible only to indicate certain outer limits. Acts that are in any
event wrongful in the preliminary judgment of the court in summary
proceedings can be prohibited in advance. An action not prohibited in
advance can nevertheless subsequently be found to be wrongful.
5.7 In setting the outer limits. Beyond which action will at this stage be
regarded as wrongful and therefore prohibited, it has to be noted that
Page 13 ⇓
13
Greenpeace must in any event comply with the requirements of
subsidiarity and proportionality. Greenpeace has itself also invoked the
concept of ‘civil disobedience’.
5.8 Greenpeace will firstly have to comply with the principle of
subsidiarity. In this case this means that actions causing damage to Shell
may be taken only after it has been attempted to use less far-reaching
means to achieve the intended result. It has not been claimed or shown
that Greenpeace has violated this principle; the evidence submitted to
these proceedings shows that Greenpeace has used multiple means to try
to persuade Shell from drilling for oil in the Arctic. Shell has continued
to adhere to its plans and, where possible, also to implement them. This
means that it cannot be stated at this stage that future action must be
prohibited because les far-reaching means are still available.
5.9 Action must also be proportional. In a case such as this it cannot be
stipulated that action must not cause any damage whatsoever to Shell. A
company such as Shell, which performs or wishes to perform actions that
are controversial in society, and to which many people object, can and
must expect that action will be taken to try to persuade it to change its
views. To be effective, such action will also be able to cause damage to
Shell. However, such action may at least be required not to cause
substantial damage by, for example, lasting longer than is needed to
achieve the intended objective.
(iii) Protest on matters of serious public concern is entitled to heightened
protection: Kuznetsov v Russia (app no 10877/04, 23 October 2008). That case
had concerned perceived dysfunction in the judicial system.
(iv) A breach of law (such as the 1987 Act) does not itself warrant interference:
Kudrevičius, paragraph 150. In the context of international law, the
international arbitral tribunal established to hear a dispute between the
Netherlands and Russia arising from a peaceful protest by the first defender
had stated that the coastal state should tolerate some level of nuisance
through civilian protest as long as it did not amount to an interference with
the exercise of its sovereign rights: The Arctic Sunrise Case (Kingdom of the
Netherlands v the Russian Federation) Award on the Merits, PCA Case no
Page 14 ⇓
14
2014-02, paragraph 328.) The Amsterdam District Court had discharged an
accused charged with entering the 500 metre safety zone, stating that the sole
circumstance that the actions of the accused were illegal is not in itself
sufficient to conclude that a restriction of the right to protest is justified:
Proceedings against Jukka Paavo Valtteri Huhta, 2 May 2019.
(v) Demonstrators have the right to choose the form and place of their protest,
and have the right to protest “within sight and sound” of their target:
Lashmankin and others v Russia (2019) 68 EHRR 1, paragraphs 405, 426. An
order to keep protesters at least 500m away from oil rigs against which they
wish to demonstrate would violate this principle.
(vi) General bans on protests near particular sites require a particular justification:
Lashmankin, paragraph 434, 436-438. It was incumbent on the state to
demonstrate that that the disadvantage of demonstrations being caught by
such a ban was clearly outweighed by the security considerations justifying
the issue of the ban.
(vii) Speculative safety risks do not justify specific bans on holding assemblies at
particular locations: United Civil Aviation Trade Union and Csorba v Hungary
(app no 27585/13, 22 May 2018). In Huhta the Amsterdam court had noted:
“The fact that the risks against which Article 43 of the Mining Act is
intended to protect do not in themselves mean that the right to protest
should be restricted applies even more strongly, given that it is possible to
obtain an exemption to be present within the security zone of a mining
facility. The court infers from this that the safety risks associated with
entering the 500 metre zone are not absolute.”
Page 15 ⇓
15
(viii) The limits of acceptable criticism are wider in the case of large public
companies: Ärtzekammer für Wien and Dorner v Austria (app no 8895/10,
16 February 2016), paragraphs 65, 66.
(ix) NGOs carry out public watch roles that warrant higher protection under the
Convention: Helsinki Bizottság v Hungary (app no 18030/11, 8 November 2016),
paragraphs 166, 167.
[25]       The passage in Richardson v DPP relied on by the pursuer was obiter. Examination of
the arguments recorded in the Appeal Cases report disclosed no discussion of A10 or A11
rights. In any event it was not binding on this court. It was an English case relating to a
statutory provision creating an offence that did not apply in Scotland.
[26]       A distinction fell to be drawn between a court assessing in retrospect whether an
interference had been proportionate, particularly in relation to the imposition of a criminal
conviction or penalty, and a court which was asked to impose a restriction on the exercise of
the rights protected by A10 and/or A11. A criminal sanction might be proportionate in the
context of a breach of section 21 of the 1987 Act. It did not follow that an interdict
prohibiting conduct that would contravene that section would be proportionate.
[27]       Mr Mure submitted that cases like Manchester Ship Canal, and the other English cases
referred to in it, could be distinguished. While they involved the occupation of private
property, what was notable was that all of the cases involved a prolonged interference with
the proprietor’s right to uninterrupted occupation of his property.
[28]       In relation to the 500 metre safety zone, he submitted that international law
Article 60(4) and (5) of the United Nations Convention on the Law of the Sea (“UNCLOS”) –
required that any such zone must be necessary for safety reasons. I understood him to
Page 16 ⇓
16
submit that it had not been demonstrated that enforcement of the safety zone for which
provision was made by statute was necessary in this case.
Decision
[29]       For the reasons that follow, I determined to grant the motion for interim interdict.
[30]       I noted that in Cuadrilla Bowland Ltd & 9 Others v Persons Unknown 2018 WL 03591283,
1 June 2018, HHJ Pelling had considered whether section 12(3) of the Human Rights Act
1998 applied in a case involving protests against fracking at a particular location. The
claimant in that case conceded, for the purpose of the hearing only, that section 12(3) did
apply, and the judge proceeded on that basis: paragraph 32. I raised the matter with parties.
[31]       Mr Mure submitted that section 12(3) did apply. In any event, a strong case would
be required to justify an interference with the Convention rights in question. Mr Barne
submitted that it did not. The language of section 12(3) referred to publication, which was
not apposite in the present context.
[32]       I have not required to reach a concluded view on this question, as I consider that the
pursuer is likely to succeed in establishing that interdict should be granted in this case. I
accept also that the pursuer has a reasonable apprehension that the defenders intend further
protests, on the basis of the article already referred to. Mr Mure did not indicate positively
that any protest was imminently intended, but did not represent that there was no intention
to protest further in relation to the decommissioning of the Brent field installations.
[33]       I accept that the matter to which the defenders wish to draw attention by protesting
is one of public importance. That is a relevant matter: City of London v Samede [2012] EWCA
Civ 160, at paragraph 41:
Page 17 ⇓
17
“… we accept that it can be appropriate to take into account the general character of
the views whose expression the Convention is being invoked to protect. For instance,
political and economic views are at the top end of the scale, and pornography and
vapid tittle-tattle is towards the bottom. In this case, the Judge accepted that the
topics of concern to the Occupy Movement were 'of very great political importance' -
[2012] EWHC 34 (QB), para 155. In our view, that was something which could fairly
be taken into account. However, it cannot be a factor which trumps all others, and
indeed it is unlikely to be a particularly weighty factor: otherwise judges would find
themselves according greater protection to views which they think important, or
with which they agree.
[34]       I regard the following matters as demonstrating that the restriction imposed by the
grant of interim interdict is necessary and therefore proportionate.
[35]       First, that a restriction is sought in relation to protest on private property is, at least, a
very significant factor supporting the proportionality of the restriction.
[36]       Appleby concerned an environmental group formed to campaign against a plan to
build on the only public playing field near Washington town centre. The applicants had
tried to set up stands in a privately owned shopping mall in Washington, but were
prevented from doing so by security staff. The court found that the state bore no
responsibility for the restriction imposed on freedom of expression, and none could be
derived from the fact that a public development company had transferred the property to a
private company. The issue was, therefore, as to whether the state had any positive
obligation to protect the exercise of Convention rights from interference by the private
owner of the shopping centre.
43. The Court recalls that the applicants wished to draw attention of fellow citizens
to their opposition to the plans of their locally elected representatives to develop
playing fields and to deprive their children of green areas to play in. This was a
topic of public interest and contributed to debate about the exercise of local
government powers. However, while freedom of expression is an important right, it
is not unlimited. Nor is it the only Convention right at stake. Regard must also be
had to the property rights of the owner of the shopping centre under Art.1 of
Protocol No.1.
Page 18 ⇓
18
44. The Court has noted the applicants’ arguments and the references in the US
cases, which draw attention to the way in which shopping centres, though their
purpose is primarily the pursuit of private commercial interests, are designed
increasingly to serve as gathering places and events centres, with multiple activities
concentrated within their boundaries. Frequently, individuals are not merely invited
to shop but encouraged to linger and participate in activities covering a broad
spectrum from entertainment to community, educational and charitable events.
Such shopping centres can assume the characteristics of the traditional town centre
and indeed, in this case, the Galleries is labelled on maps as the town centre and
either contains, or is in close proximity to, public services and facilities. As a result,
the applicants argued that the shopping centre must be regarded as a “quasi-public”
space in which individuals can claim the right to exercise freedom of expression in a
reasonable manner.
45. The Government have disputed the usefulness or coherence of employing
definitions of “quasi-public” spaces and pointed to the difficulties which would
ensue if places open to the public, such as theatres or museums, were required to
permit people freedom of access for purposes other than the cultural activities on
offer.
46. The Court would observe that, though the cases from the United States in
particular illustrate an interesting trend in accommodating freedom of expression to
privately owned property open to the public, the US Supreme Court has refrained
from holding that there is a federal constitutional right of free speech in a privately
owned shopping mall. Authorities from the individual states show a variety of
approaches to the public and private law issues that have arisen in widely differing
factual situations. It cannot be said that there is as yet any emerging consensus that
could assist the Court in its examination in this case concerning Art.10 of the
Convention.
47. That provision, notwithstanding the acknowledged importance of freedom of
expression, does not bestow any freedom of forum for the exercise of that right.
While it is true that demographic, social, economic and technological developments
are changing the ways in which people move around and come into contact with
each other, the Court is not persuaded that this requires the automatic creation of
rights of entry to private property, or even, necessarily, to all publicly owned
property (Government offices and ministries, for instance). Where however the bar
on access to property has the effect of preventing any effective exercise of freedom of
expression or it can be said that the essence of the right has been destroyed, the
Court would not exclude that a positive obligation could arise for the State to protect
the enjoyment of Convention rights by regulating property rights. The corporate
town, where the entire municipality was controlled by a private body, might be an
example.
48. In the present case, the restriction on the applicants’ ability to communicate their
views was limited to the entrance areas and passageways of the Galleries. It did not
prevent them from obtaining individual permission from businesses within the
Page 19 ⇓
19
Galleries (the manager of a hypermarket granted permission for a stand within his
store on one occasion) or from distributing their leaflets on the public access paths
into the area. It also remained open to them to campaign in the old town centre and
to employ alternative means, such as calling door to door or seeking exposure in the
local press, radio and television. The applicants do not deny that these other
methods were available to them. Their argument, essentially, is that the easiest and
most effective method of reaching people was in using the Galleries, as shown by the
local authority’s own information campaign. The Court does not consider however
that the applicants can claim that they were, as a result of the refusal of the private
company, Postel, effectively prevented from communicating their views to their
fellow citizens. Some 3,200 people submitted letters in their support. Whether more
would have done so if the stand had remained in the Galleries is speculation which is
insufficient to support an argument that the applicants were unable otherwise to
exercise their freedom of expression in a meaningful manner.
[37]       In the present case it is the court that is being asked to impose the restriction on the
defenders’ Convention rights. The restriction, so far as relating to boarding and occupying
the installations, would apply to the private property. The defenders have no right or title to
enter or occupy the installations. Normally the rights associated with being the proprietor
or operator of the installation would entitle the pursuer to ask the court to interdict boarding
or occupation which was not authorised.
[38]       In Appleby the court contemplated that there might be a positive obligation to
regulate property rights where a bar on access to privately owned property had the effect of
preventing any effective exercise of freedom of expression, or it could be said that the
essence of the right had been destroyed. The example it gave, of a corporate town, appears
to have derived from its consideration of Marsh v Alabama 326 US 501, 66 S Ct 276, 90 L
Ed 265 (1946). That related to a company town which had all the other characteristics of a
municipality, although it was privately owned, and the United States Supreme Court had
found that it was subject to the First Amendment rights of free speech and peaceable
assembly. As the Strasbourg court observed, the United States Supreme court had refrained
from holding that there was a federal constitutional right of free speech in a privately owned
Page 20 ⇓
20
shopping mall: Pruneyard Shopping Center v Robbins, 447 US 74, 64 L Ed 2d 741, 100 S Ct 2035
(1980). Some State courts in the United States had gone further in recognising a right of
access to privately owned property open to the public for the purposes of freedom of
expression.
[39]       Mr Mure sought to draw the installations into the public realm by submitting that
they were located in an exclusive economic zone that is a zone in which the coastal state
has rights regarding the exploration and use of marine resources. They were located where
they were only because the state licensed them to be there. He did not dispute, however, the
pursuer’s economic interest in the structure of the installations, or that they had an exclusive
right to occupy them.
[40]       In Appleby, the Strasbourg court was not persuaded that a state required to create
rights of access to private property, or even, necessarily, all publicly owned property. That
would arise only where a bar on access had the effect of preventing any effective exercise of
freedom of expression, or that the essence of the right had been destroyed. It seems to me
that the Amsterdam District Court, in taking the approach that it did in the cases at Shell’s
instance went further than the Convention requires.
[41]       I was not addressed on any of the jurisprudence from the United States, which has
continued to develop since the European Court of Human Rights considered some of the
case law in Appleby. What follows was not material to my reasoning, but I note that where
the California Supreme Court did recognise a right of access to privately owned shopping
malls for free speech purposes under the state constitution, it did so only in relation to
“public forum” areas so designed and furnished as to encourage the public to congregate
and socialise there for leisure: eg Ralph’s Grocery Co v United Food and Comm Workers Union
Local 8, 55 Cal 4th 1083,1093 (2012), and not in relation to the whole of the mall.
Page 21 ⇓
21
[42]       So far as domestic jurisprudence is concerned, Shell UK v McGillivray 1991 SLT 667
related to a sit-in on offshore installations. In granting interim interdict, Lord Cameron of
Lochbroom said the following, page 669G-L:
It was submitted by counsel for the respondents that since neither the platforms nor
the vessels were heritable property, and since the law of trespass was applicable to
heritable property only, the respondents' occupation of accommodation within the
platforms and the vessels, and thus their remaining aboard them, was not unlawful.
In particular it did not constitute a delict within the meaning of that term in Scots
law.
In my opinion, the short answer to that submission is to be found in the case of
Phestos Shipping Co. Ltd. v Kurmiawan. There interim interdict was pronounced in
terms very similar to those sought in the present case, against members of the crew
of a vessel who having withdrawn their labour were subsequently dismissed and
who from that date had remained on board the vessel, occupying the mess room and
their sleeping quarters. The vessel was not heritable property but was capable, like
other moveable property such as a caravan, of occupation. In particular Lord
Dunpark at p. 391 said: “Scots law offers remedies for the unlawful occupation of
property, be it heritable or moveable, even where that occupation is not affecting the
owner's pocket.” It is sufficient at this stage to say that in principle I can find no
distinction between the admitted facts in the present case and those obtaining in
Phestos Shipping Co. Ltd. v. Kurmiawan. I am therefore of opinion that the petitioners
do have a prima facie case setting out a delict arising from unlawful occupation of
property to which they have an exclusive right of occupation. The occupation in the
present cases is continuing against the wishes of those who own or operate the
platforms and the vessels and the respondents have neither right nor title to remain
on board, following upon their dismissal from employment with their employers,
not least since the latter have no place of business aboard the platforms or the
vessels. That being so, the occupation is wrongful. In my opinion, the use of the
word “trespass” has no particular significance in these petitions other than indicating
that the actings of the respondents are averred to be wrongful acts of occupation of
parts of property of which the petitioners have the exclusive right of occupation.
[43]       The starting point is that Scots law provides a remedy in relation to the unlawful
occupation of property, whether that is heritable or moveable: Phestos Shipping; Shell UK Ltd
v McGillivray. Both of those cases pre-date the Human Rights Act 1998. I do not consider
that I am bound to take the view, expressed in Richardson, that in every case the “civil law of
trespass”, or more properly for the purposes of this case, the civil law relating to unlawful
Page 22 ⇓
22
occupation of property, will constitute a limitation on rights under A10 and/or A11 which is
unchallengeably proportionate. That view appears to be obiter, and the case concerns a
provision of English statutory criminal law. The Strasbourg court in Appleby contemplated
circumstances, albeit of an extreme nature, in which the essence of those rights might be
destroyed, were there not a right of access afforded to privately owned property.
[44]       Counsel was unable to refer me to any case from a court in the United Kingdom in
which access had been afforded (or in which the court had declined to prohibit access) to
privately owned property for the exercise of the rights protected by A10 and/or 11. On the
contrary, recent decisions of courts in England and Wales indicate that the entitlement of an
owner to enjoy its property without interference is a strong factor in the balance where
A10/A11 rights are concerned: Manchester Ship Canal, paragraphs 34, 46; Sun Street Property
Ltd v Persons Unknown [2011] EWHC 3432 (Ch), paragraph 29; Samede; University of Sussex v
Persons Unknown, Sales J, Thursday, 28th March 2013. Relevant authorities are conveniently
summarised by HHJ Pelling in Manchester Ship Canal, as follows:
30.The interaction between the rights of protesters under Articles 10 and 11 on the
one hand and the rights of a private land owner protected by A1P1 was considered
by the Court of Appeal in City of London v. Samede and others [2012] EWCA Civ 160.
That case was concerned with a protest camp established in the City of London in
very close proximity to St Pauls Cathedral. The majority of the area occupied was
highway land owned by the City Corporation but also included land owned by the
Church Commissioners. The City's claim was for possession of the highway land that
it owned. The Court of Appeal held that the protesters' rights under Articles 10 and
11 were engaged and that the question whether interference with those rights was
lawful necessary and proportionate was inevitably a fact sensitive question that
would depend amongst other things on "[39] …the extent to which the continuation
of the protest would breach domestic law, the importance of the precise location to
the protesters, the duration of the protest, the degree to which the protesters occupy
the land and the extent of the actual interference the protect cause to the rights of
others including the property rights of the owners of the land and the rights of any
members of the public …" but "… it is very difficult to see how [the protesters'
Article 10 and 11 rights]… could ever prevail against the will of the landowner, when
they are continuously occupying public land, breaching not just the property owner's
rights and certain statutory provisions , but significantly interfering with the public
Page 23 ⇓
23
and convention rights of others, and causing other problems (connected with health
nuisance and the like) particularly in circumstances where the occupation has
already continued for months and is likely to continue indefinitely.".
31.The notion that Articles 10 and 11 do not provide an arguable defence in relation
to a claim by a private property owner of privately owned land has been adopted in
a number of first instance decisions. Thus in SOAS v. Persons Unknown (2010) 25
November (Unreported) which was concerned with the occupation by students of a
particular part of SOAS known as the Brunei Suite - Henderson J considered a
defence based on Articles 10 and 11. He referred to Appleby v. UK (ante) and the
general principles to be derived from that case summarised above. He then said:
"That … appears to be clear authority that Article 10 does not give any
general freedom to exercise the right on private land. It is only in exceptional
circumstances where the court considered that the inability to exercise the
right on private land would prevent any expression of the right. In the
present case it is entirely fanciful to suggest that preventing the students
exercising their rights in the Brunei Suite would prevent them from
exercising their rights of expression. The proposition that the law requires the
property rights of SOAS to be overridden in their own building is
unarguable."
32.A similar approach was adopted by Sales J in University of Sussex v. Persons
Unknown and others [2013] EWHC 862 (Ch.). That case was concerned with an
application by the university for possession of a part of its property known as
Bramber House. Having cited Paragraph [47] from Appleby v. UK (ante), he then
recorded a submission on behalf of the Defendants in that case that the campus was
the equivalent of a corporate town and thus that the essence of the freedoms of free
expression and association would be destroyed of a possession order was made,
which he rejected on the facts. Sales J noted SOAS (ante), and quoted from Paragraph
39 of the lead judgment in Samede (ante), the material part of which is set out above.
He noted that the outcome in that case was that the property owner was held entitled
to recover possession of its property and that the court had noted that there were
other places where the protesters could exercise their Article 10 and 11 rights. Sales J
concluded that a possession order ought to be made in that case, amongst other
reasons, because "… the continuation of the protest, denying the University its
property rights would be a plain breach of domestic law …", because the protest had
been going on for a long time and because of the availability of other means of
expression and protest.
33.The final authority that I need refer to at this stage is Sun Street Property Limited v.
Persons Unknown [2011] EWHC 3432 (Ch). I understand that permission to appeal
from this decision was granted but not exercised. I accept that it must be read subject
to the decision of the Court of Appeal in Semede (ante). Sun Street (ante) was
concerned with an application made by the Defendants to set aside a possession
order made against them following their occupation of a large complex of buildings
in the City of London. The Defendants relied on Articles 10 and 11. Having recited
Page 24 ⇓
24
the relevant Articles, Roth J referred to Appleby (ante) at [29] , to SOAS and then to
an argument on behalf of the Defendants that each case was fact sensitive and that in
that case the occupiers' rights should prevail because the property was unoccupied,
and the location was "… absolutely integral …" to the protesters' message. Roth J
rejected that submissions in these terms:
"Those submissions confuse the question of whether taking over the bank's
property is a more convenient or even more effective means of the Occupiers
expressing their views with the question whether if the bank … recovered
possession, the Occupiers would be prevented from exercising any effective
exercise of their freedom to express their views so that, in the words of the
Strasbourg Court, the essence of their freedom would be destroyed. When the
correct question is asked, it admits of only one answer. The individuals …
currently in the property can manifestly communicate their views about
waste of resources or the practices of one or more banks without being in
occupation of this building complex. … I need hardly add that the fact that
the occupation gives them a valuable platform for publicity cannot in itself
provide a basis for overriding the respondent's own right as regards its
property."
These comments are perhaps rather starker than those contained in Samede (ante) and
to the extent that they suggest that a full fact sensitive analysis is not required in the
circumstances may be wrong. Nonetheless in my judgment it is reflective of the effect
of Appleby (ante).
34.In my judgment Articles 10 and 11 do not even arguably provide the 2nd and 5th
Defendants with a defence to the Claimants' possession claim. My reasons for
reaching that conclusion are as follows. First, the land in respect of which possession
is claimed is land owned otherwise than by a public authority. To permit the
Defendants to occupy that property would be a plain breach of domestic law,
because neither defendant has the licence or consent of the Claimants to be or remain
on the land. It is also an interference with the Claimants' A1P1 rights in relation to
their property. Although Mr. Johnson submitted that this factor was circular and had
the effect of defeating the Defendant's Article 10 and 11 rights, I reject that argument.
I do not regard the points as being of themselves decisive. They are two factors that
have to be weighed in the balance with others. Nonetheless they are powerful factors
because if effect is not given to them then the result will be to deprive a property
owner of its entitlement to enjoy its property without interference. As Appleby (ante)
demonstrates, it will only be in exceptional circumstances in which such an outcome
could be justified, particularly in relation to privately owned land.
35.Secondly, the continued presence of the Defendants and, more importantly, all
those others coming within the scope of the phrase "Persons Unknown" is a source of
interference with other legitimate users of the land concerned. […] This is
obstruction of a public highway and thus unlawful apart from the factors considered
in the previous paragraph. […]
Page 25 ⇓
25
36.Thirdly, the protest has been ongoing and escalating since last November. The
length of the protest is a relevant consideration as Sales J demonstrated in University
of Sussex v. Persons Unknown and others (ante). Whilst this factor may not be a
particularly weighty one it is nonetheless of importance when considered with the
others I have so far mentioned.
37.The final and key point is that there is absolutely nothing to prevent the protesters
from carrying on their protest elsewhere and/or by other means that does not involve
interfering with the A1P1 rights of the Claimants, their licensees and visitors. There
is no evidence offered by the Defendants on this issue. Rather what is said is that the
camp is the most effective means of protest available to them see in this regard the
evidence of the 2nd Defendant at Paragraphs 14, and 26 30; that of Mr. Pitfield at
Paragraphs 21-22; and that of Mr. Burke at Paragraph 11. This may be so but is not
the point as the ECtHR held in Appleby (ante) as Roth J explained in Sun Street (ante)
at the part of his judgment set out in Paragraph 33 above. This point is probably
decisive because as the ECtHR said in Appleby (ante), Articles 10 and 11 will only
provide a defence to a claim for possession of privately owned land if the effect of
requiring the protesters concerned to give up possession would be to prevent "… any
effective exercise of freedom of expression …" or would be that " … the essence of the
right has been destroyed …". This hurdle is obviously and intentionally a high one
that the Defendants do not even arguably clear on the facts of this case. As I have
said, this factor is probably decisive but is clearly so when viewed in combination
with the other factors I have mentioned above.”
[45]       Both parties referred in the course of submissions to Ziegler. That case involved an
allegation of obstructing the highway without lawful excuse. The Court of Appeal read
down the “ without lawful excuse” element of the offence in a manner compatible with
Article 10 and Article 11: paragraph 94:
“… We would respectfully suggest that, although the Convention rights are not
"trump cards", since they are qualified rights and not absolute ones, they must be
regarded as more than simply "a significant consideration". This is because, if
otherwise there would be a breach of the Convention rights, then section 3 of the
HRA requires an interpretation to be given to section 137 [of the Highways Act 1980],
so far as possible, which is compatible with those rights. We have explained in this
judgment how a compatible construction can indeed be given to section 137. This is
by considering there to be reasonable behaviour and therefore lawful excuse when a
person is lawfully exercising their Convention rights. That does not mean that those
rights will always prevail. The focus of the enquiry will be, as Hickinbottom LJ
observed, on whether restrictions have been lawfully placed on the Convention
rights under para. (2) of Articles 10 and 11, in particular on the assessment of
proportionality.
Page 26 ⇓
26
The court then went on to say that the assessment under Articles 10 and 11 would normally
depend on a number of factors which summarised at paragraph 39 of Samede, which include
the extent to which the continuation of the protest would breach domestic law, the
importance of the precise location to the protesters, the duration of the protest, the degree to
which the protesters occupy the land, and the extent of the actual interference the protest
causes to the rights of others, including the property rights of the owners of the land, and
the rights of any members of the public.
[46]       There are significant difficulties associated with the Court’s, in effect, providing for a
right of access to privately owned property by declining to grant interdict in a case such as
the present. The proprietor or lawful occupier might find the views of the protester
repugnant, or at odds with its own. The rights to each in relation to freedom of expression
might be in conflict. The present case is an example. I have already referred to the
competing contentions of the parties respectively about the potential of the remaining parts
of the installation to pollute the marine environment. In the context of protests on publicly
owned property the court does not engage with the merits of the views of the protester, but
assesses whether the issue is one of public interest or importance: Director of Public
Prosecutions v Ziegler [2019] 1 Cr App R 32, paragraphs 55, 98:
55. However, the courts which are strictly neutral arbiters of people's rights
cannot adjudicate upon the validity or legitimacy of particular points of view. An
instructive distinction is drawn in American constitutional law between the "content"
of speech and "viewpoint discrimination." The fact that the content of speech is
political may well be highly significant in a democratic society. However, what the
courts cannot do is to engage in discrimination as between different viewpoints. It is
not the function of the court to express a view about the acceptability of a political
opinion, still less to express approval or disapproval of those opinions. We leave to
one side the views of those organisations which are (exceptionally in a democratic
society) proscribed organisations; and any other offences that may be committed,
such as incitement to racial hatred, since those are not the subject of the present
appeals.
Page 27 ⇓
27
98. However, we would respectfully observe that what was said by Lord Neuberger
MR at paras. 40-41 [in Samede] was not intended to, and does not have the effect of,
entitling a court to enter into expressing approval or disapproval of a particular
viewpoint. Rather, when read fairly and as a whole, what Lord Neuberger MR was
saying is the same as what we have said in this judgment, namely that the content of
expression (for example political speech) may well require it to be given greater
weight but the particular viewpoint being expressed is not something on which it is
permissible for a court to express its own view by way of approval or disapproval.
[47]       It is difficult to see on what basis a court could hold that the pursuer ought to be
expected to tolerate the presence of the defenders so they could apply the slogan “toxic
waste” on the remaining leg of an installation, without at least implicitly indicating that the
view of the defenders either was correct, or carried more weight than the view of the
pursuer.
[48]       Another problem is this. If a proprietor or lawful occupier is to have to bear in mind
at least the potential for access to the property for the purposes of protest, then duties may
arise in relation to making the property safe for such persons. While that might not pose
any obvious difficulty for places, like shopping malls, to which the public generally has
access, it is likely to cause very significant difficulty in relation to an environment such as an
offshore installation, or the remnants of an offshore installation.
[49]       I take into account that, not only would action involving occupation of the
installations interfere with property rights, but that the defenders in October 2019 damaged
one of the installations by painting a slogan on it. Conduct of that sort could constitute a
criminal offence.
[50]       I accept that, in general, the duration of the protest, how disruptive or otherwise it is,
and the importance of the location to the protesters will be relevant factors in assessing the
proportionality of an interference with the rights protected by A10 and/or A11. In this case
Page 28 ⇓
28
the protest in October 2019 was of relatively short duration. I accept also that the location
is important to the defenders. It is, however, clear that there is not an absolute right to
choose a location for a protest, for the reasons I have already discussed. Occupation of an
installation involves risks to safety, which I discuss more fully below. While the location is
highly desirable to the defenders, lack of access to it is not destructive of the right of
freedom of expression or freedom of assembly. It does not prevent the defenders from
criticising the conduct of the pursuer in relation to decommissioning the installations. It
does not prevent protest at a very wide variety of other locations. It does not prevent
protest at sea at 500 metres from an installation.
[51]       I accept also that large international companies must expect their actions to be
scrutinised. The authorities to which Mr Mure referred in relation to his eighth proposition
related to criticism in written form. They did not relate to direct action on an offshore
installation. The focus of this case is not on the nature or terms of the criticism of Shell’s
policy in seeking to leave parts of offshore installations in the marine environment. It is on
whether a restriction should be placed on protest on or within 500 metres of such
installations.
[52]       The question of disruption brings me to the second factor that I regard as of
significance in this case. The potential for disruption arises particularly in the context of a
protest in a dangerous environment. I have no reason to doubt that that the defenders
aspire to keep their activists safe, or that they undertake the training and other activities
referred to in the affidavits. There is no dispute that they withdrew when the weather
worsened. Mr Mure did, however, accept that the protesters on 14 October 2019 accessed
the spider deck. He said that there was no warning to indicate to them that it was thought
to be unsafe. They had themselves assessed that they could remain on it safely.
Page 29 ⇓
29
[53]       I accept for present purposes that what Mr Barne said regarding the status of the
spider deck, as regards the prohibition of access to it for workers, as correct. It is reflected in
6/21 of process, which recorded various hazards said to have arisen during the course of the
protest at Alpha. That document recorded that the grating on the spider deck was in poor
condition, heavily corroded and not deemed safe for walking on. Without reaching any
concluded view as to the precise condition of the spider deck, this passage of submission
highlights that there may be risks that are known to those on the installation which cannot
be recognised or assessed in advance by protesters. It undermines the notion that the
precautions which the defenders say they employ will be effective in preventing accidents. I
note that the document records that a support vessel was in fact positioned between Alpha
and Bravo as a control, and that in the event of a fall to sea, the pursuer’s man-overboard
procedure would be used.
[54]       Csorba, to which Mr Mure referred, related to a protest on the hard shoulder of an
airport road. The court regarded the safety concerns relied on by the state as speculative.
The safety risks in the present case are not speculative. The defenders acknowledge that the
installations are in a dangerous marine environment, in that they lay some emphasis on the
steps that they take to try to mitigate the dangers. Their position is not that the safety risks
are speculative, but that they have sought to prepare for them, and ought to be allowed to
take them. They have in effect acknowledged also, by reference to their state of knowledge
about the spider deck, that they cannot expect in advance to identify all the relevant risks.
[55]       Although I do not place much weight on it, I consider I am entitled to take into
account the circumstance that activists on the Paul B Loyd Jnr pled guilty to breach of the
peace by endangering themselves and others. I accept that the protest was of a different
nature and in a different location and that is why I accord it relatively little weight.
Page 30 ⇓
30
Mr Mure submitted also that it involved an emanation of Greenpeace other than either of
the defenders, namely Greenpeace UK, and that I should not assess the attitude of the
defenders to safety by reference to the actions carried out on the Paul B Loyd Jnr. I note,
however, that it is a matter of admission in the defences (Answer 3) that the first defender
employs the crew of the ships Artic Sunrise, Rainbow Warrior and Esperanza. I was told
that the Artic Sunrise had been involved in the action in the Cromarty Firth. Against that
background there is a basis for taking the view that the first defenders were associated with
the protest in question. The information is relevant because it is an example of conduct
which appears to have placed protesters and others in danger. Some of the protesters pled
guilty, apparently on that basis.
[56]       Third, I regard the existing statutory provisions as of significance in demonstrating
that the interference imposed by way of interim interdict is proportionate. I accept that not
every breach of a legal rule by someone seeking to exercise A10 and/or A11 rights will
indicate that interference is proportionate. The passage relied on by the defenders, however,
in Kudrevičius at paragraph 150 related to rules governing public assemblies. The
proportionality of restrictions on peaceful assemblies held in breach of rules requiring
notification of public assemblies will require to be scrutinised with care. In this case, the
pursuer relies on sections 21 and 23 of the 1987 Act. These are not provisions which regulate
the content of protest or of expression of view. They are not, on their face, designed to
regulate the holding of public assemblies, or to proscribe particular locations as sites where
protests may be held. Their purpose is safety on and of offshore installations. Both parties
referred to HSE guidance as to their purpose, namely to protect the safety of people working
on, or in the immediate vicinity of, the installation, and the installation itself against damage.
I consider that in relation to a measure with this purpose, the state has a wide margin of
Page 31 ⇓
31
appreciation in relation to any restriction that it imposes on the exercise of Article 10 and/or
11 rights.
[57]       I did not regard the provision for exemption from the requirement to observe the
zone as of any assistance. Mr Barne submitted that that constituted a route by which the
defenders could have sought permission to protest within the zone. Mr Mure submitted
that the potential for exemption demonstrated that there was no absolute requirement not to
enter the zone. I do not know in what circumstances or on what conditions an exemption
might be granted. I do not see how it could assist the defenders so far as occupation of an
installation itself is concerned.
[58]       The 500 metre zone is the subject of primary legislation. It is not open to challenge in
this court on the basis of any purported incompatibility with UNCLOS. Article 60(4) and
(5) UNCLOS contemplates the creation of safety zones of up to 500 metres. I proceed on the
basis that any exercise of the relevant Convention rights within the 500 metre zone is likely
to constitute a criminal offence. I am not determining whether in any particular
circumstances a person will fall to be convicted of that offence, but regard it as significance
that Parliament has created the offence. It is relevant to the question, focused in Samede, as
to the extent to which the conduct is unlawful in domestic law. The offence appears to have
been created with a view to protecting the safety of workers and installations. That is far
removed from a procedural requirement regarding notification of a proposed demonstration
in a public place. I do not regard the decision of the Amsterdam court in the criminal matter
as of any assistance. I approach it with caution as I am not informed as to the criminal law
of the Netherlands more generally. The Artic Sunrise case concerned a dispute about
Russia boarding and detaining a Dutch ship after it had ceased to be engaged in actions that
could interfere with the exercise of Russia’s sovereign rights as a coastal state. I note that the
Page 32 ⇓
32
arbitral tribunal considered that it would be reasonable for a coastal state to act to prevent
violations of its laws adopted in conformity with UNCLOS and dangerous situations that
could result in injuries to persons and damage to equipment and installations: paragraph
328.
[59]       I am satisfied not merely that the pursuer has made out a prima facie case, but that it
has demonstrated that its case is likely to succeed. So far as the balance of convenience is
concerned, I am satisfied that that favours the pursuer. The defenders have no right or title
to occupy the installations, and the pursuer has raised safety concerns of substance. The
defenders have a wide variety of other locations open to them at which to protest.
[60]       For the foregoing reasons I grant the order sought.



BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_7.html