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Rules of engagement

15 August 11

Incidents are increasing of business property becoming the focus of protest action. What can be done if illegal activities ensue?

by Heidi Archibald

In recent years there has been an increase in the propensity of individuals to protest. The protest by Greenpeace at Cairn Energy’s offices on 18 July exemplifies the difficulties and issues which can arise from an unanticipated protest. Ten years ago most protests were orchestrated and organised by “umbrella” organisations such as Greenpeace. Factors such as economic turbulence and the growth of the internet and social media have meant that protests are now easier to organise and do not rely on the resources of a sophisticated organisation to nearly the same extent.

Some of the more recent protester activity, particularly that relating to environmental issues, has involved disparate and ad hoc groups which may be local to their “target”. This brings its different problems – it is likely to be more difficult to gather intelligence of any potential protest in advance; and it is more difficult to predict their modus operandi. Whatever type of protest, there can be little doubt that the number of public protests and demonstrations throughout the UK is increasing.

Against this background, and bearing in mind the situation faced by Cairn recently, organisations need to ensure that they have in place a strategy to deal with any incident that may arise. Protests, and how they are dealt with, can have a disruptive impact on operations and affect staff. Activity is likely to stop – and may have to stop depending on the nature of the protest – and employees may feel threatened or intimidated, or even hostile to the protesters. Employees might want to try and remove the protesters and the organisation needs to know what its employees can and should, or just as importantly should not, do.

Policing pressures

If a demonstration or protest occurs there may well be an expectation that the police will deal with it. This can be an effective way to bring a protest to an end. It was reported that the police removed protesters from Cairn’s offices in small groups, and 17 people were later charged and are due back in court in October and November. However, constraints on police budgets and resources may well impact on the way in which protests are dealt with in future. Planning for protests will not have been helped by the publication earlier this year of a report on policing public order by Her Majesty’s Inspectorate of the Constabulary (HMIC). Organisations may therefore need to think twice about how protests can be dealt with in light of increasingly stretched police resources.

The HMIC report states that “this is a new period of public order policing – one which is faster moving and more unpredictable... what seems evident is a willingness to disrupt the public and test police”. The report makes the point that protests and demonstrations of any type are “inherently messy”, and warns that the increasing use of social media tools, such as Twitter and Facebook, means that protests and demonstrations can be organised within hours and change focus within minutes. Policing any highly flexible demonstration costs money and resources at a time when budgets across the country are being cut.

The police and the target organisations may also have differing priorities – the police might be willing to allow a peaceful demonstration to continue while the organisation may want it brought to an end quickly. Rightly or wrongly, the police may take the view that “operators” are better placed and better resourced to deal with real or perceived threats. That is not to say that target organisations should not liaise with the police – as is seen from recent events at Cairn, close co-ordination is essential – but rather to suggest that expectations about what assistance can realistically be provided may need to be adjusted and businesses need to consider all of the tools at their disposal.

Interdict potential

So what can an organisation do if it thinks it may be targeted? The action it will wish to take depends on a number of factors such as the location of the protest, what it is that the protesters are doing, and its impact or potential impact. Local management may be an option, but what if the protest is causing more of a disturbance? What steps should employees take? Can or should the protesters be moved? If so, where? What interaction with the protesters should take place? Can an organisation do anything if it receives intelligence that a protest is imminent?

The most obvious and commonly used civil remedy is interim interdict which can provide a relatively speedy solution. Interim interdict can be sought in tandem with police involvement, as the Cairn protest demonstrates. The police effectively removed the protesters, who were reportedly searching through Cairn’s drawers and filing cabinets, but did not have the same options available to prevent publication of material taken by protesters, or to prevent future protests orchestrated by Greenpeace. While it was reported that it is a condition of bail of those charged that they must not go within 300 metres of Cairn’s offices, in order to obtain additional protection, interim interdict was the most powerful remedy available to Cairn to prevent future protests and also publication of any material taken by Greenpeace.

Cairn was granted a three-pronged interim interdict which first of all prevents the dissemination, printing, uploading, sharing or copying of any images, photographs, pictures or other material taken or recorded during the protest. The material already uploaded on Greenpeace’s website, Twitter and Facebook therefore had to be removed. The other two prongs of the interdict prevent Greenpeace, first, from entering Cairn’s office in the future, and secondly, from taking any action to disrupt or interfere with Cairn’s business. The protest earlier this month is not the first action taken by Greenpeace against Cairn and this order therefore offers extremely important protection. Failure to comply with the terms of the interim interdict is likely to be contempt of court, which can result in a fine being imposed. Had the order been granted against individuals, imprisonment would have been an alternative punishment which could have been imposed in the event of breach.

The Scottish courts have also shown that they are willing to grant appropriate orders to prevent a protest in advance of any activity taking place if the applicant can demonstrate that it has a reasonable apprehension of unlawful interference. It must have more than a vague concern: the court will consider the basis of the apprehension – what does the organisation think might happen, where, and what makes it think this, are all factors likely to be considered by the court. A pattern or course of conduct may justify a reasonable apprehension. In that case, interim interdict may be awarded to bring ongoing activity to an end, or as with the order granted to Cairn, to prevent a future protest.

If the police are unwilling or unable to help, interim interdict is likely to be the most useful tool in the organisation’s armoury. (It is not fatal if it is not possible to identify the occupiers by name as orders can be sought against unnamed protesters.)

However, applications for interim interdict need to be drafted with care. It is vital that the organisation attempts, so far as possible, to anticipate what action protesters may take, in order to ensure that this is covered by the application. What will make the eyecatching picture? The protesters are likely to be seeking publicity. If successful, the applicant will only be granted the order which is sought and the protesters are likely to try and make the most of the opportunity for publicity offered if the order does not prohibit specific activity or cover a particular location. Having to return to court a second time is likely to be an embarrassing experience, aside from the additional but potentially avoidable expense which will be incurred if a further application is required.

Accessible action

It used to be thought that protests took place because that was the only way that campaigners could make their point, but recent legislative developments may change this and lead to an increase in the number of campaigners launching judicial challenges. The costs of litigating were thought to be a deterrent; even if a protest group could organise itself coherently, the amount of money needed to fund a judicial challenge, and potentially meet opponents’ expenses if unsuccessful, effectively ruled out court action.

A decision, action or failure to act on the part of a public body such as a government department or local authority can be challenged by judicial review. An application for judicial review is likely to affect more than the decision-making body. If the challenge is to the granting of a permit or licence, the operator may have invested significant time and money in a site or project before even making the application. If it is granted and the decision then challenged by way of judicial review, the impact on the operator is likely to be considerable.

The Court of Session has shown a willingness to make “protected expenses orders”, which may make litigation a more attractive prospect for campaigners (see the decisions of Lord Stewart [2011] CSOH 10 and Lady Dorrian [2010] CSOH 5). A “protected expenses order” reduces the risk of expenses being awarded against ultimately unsuccessful litigants who have limited financial resources, in order that they can pursue cases deemed to be in the public interest. A number of criteria must be satisfied before such an order can be granted: for example, the issues raised must be of general public importance; the public interest must require that those issues should be resolved; the applicant can have no private interest in the outcome of the case; having regard to the financial resources of the applicant and the respondent and to the amount of costs that are likely to be involved, it must be fair and just to make the order; and if the order is not made then it must be likely that applicant, acting reasonably, will discontinue the proceedings.

In the decisions referred to above, a campaigner challenging the Scottish Government’s decision to include a new power station in the national planning framework had his liability for expenses capped at £30,000, and campaigners from Road Sense, the community campaign against the proposed Aberdeen bypass, were granted a protected expenses order limiting their exposure to potential legal costs to £40,000 (the campaigners are challenging the lawfulness of Scottish ministers’ decision to grant approval for the proposed new road).

The issue of protected expenses orders is now before the Court of Session Rules Council and specific rules are expected to be brought forward. The potential content of the new rules is outwith the scope of this article, but the practical effect may be that the courts will become more accessible to campaigners, giving them the potential to cause delay and uncertainty to operators and contractors.

Does that mean an end to direct action? Recent events suggest not. Rather, from financial to retail to energy, all companies need to be aware of the remedies that might be available. Organisations who find themselves the subject of an actual or threatened protest need to be aware of their options and to prepare for the unexpected. Forethought and planning are likely to be key in ensuring that legitimate protests pass without incident.

Heidi Archibald is a senior associate in the Litigation and Dispute Resolution Team at McGrigors LLP

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