An interesting comparison is to be made between those who seek to protest both by blocking roads, and using social media to allegedly cause trespass and harassment, and those that simply block roads, allegedly causing trespass and nuisance as an act of protest.
In MBR case judgment is attached below, the Court concluded that there should be the bare minimum done in the interim to enable protest. A prohibition on trespass, and a zonal order on the space directly in front of the Claimants property. Even that bare minimum had a considerable effect on the protest, but was far removed from the injunction granted in the National Highways case, including against persons unknown.
The case also noted the procedural differences where there is an allegation of harassment that relates to publication, and the real need to focus a claim.
The National Highways case has received recent publicity, because of the committal proceedings. The underlying order against named and unknown parties provided provided that:
"2.1 Blocking, endangering, slowing down, preventing, or obstructing the free flow of traffic onto or along or off the M25 for the purposes of protesting.
2.2 Causing damage to the surface of or to any apparatus on or around the M25 including but not limited to painting, damaging by fire, or affixing any item or structure thereto.
2.3 Affixing themselves ("locking on") to any other person or object on the M25.
2.4 Erecting any structure on the M25.
2.5 Tunnelling in the vicinity of the M25.
2.6 Entering onto the M25 unless in a motor vehicle.
2.7 Abandoning any vehicle or item on the M25 with the intention of causing an obstruction.
2.8 Refusing to leave the area of the M25 when asked to do so by a police constable, National Highways Traffic Officer or High Court Enforcement Officer.
2.9 Causing, assisting or encouraging any other person to do any act prohibited by paragraphs 2.1-2.8 above.
2.10 Continuing any act prohibited by paragraphs 2.1-2.9 above."
Interesting a number of the civil prohibitions were also criminal in nature, it is unclear how if there were no criminal prosecution and party could be allowed to prosecute what is otherwise a criminal matter.
Oddly term 2.6 seems to suggest that persons are now excluded from riding on a motorbike on the M25, but could drive a milk cart (prohibited by law normally on a motorway), as the order permits it. The terms of the prohibition all seem very odd, and things that are already prohibited by the law. There may well be definitions that get around these issues.
However they are on any reading and especially as they are against persons unknown wide ranging and rather specific, for interim relief. Why the same effect could not have been achieved by zonal orders prohibiting protest on the M25 as was done in the MBR case.
The committal case also made clear that a Defendant must choose to access legal aid, and that once they were aware of it, that was all that really had to be done. There will be cases in the future, it is clear that will show that in some areas finding a solicitor to act under legal aid, is often an impossible obstacle to accessing legal aid.
Adam is a solicitor advocate, and regularly appears in the High Court and Court of Appeal dealing with some of the most complex and interesting public law cases.