Horse Hill defendants outside Redhill magistrates court. PHOTO: Netpol

Horse Hill defendants outside Redhill magistrates court. PHOTO: Netpol

Last week’s verdicts were an important victory – but they do not settle arguments about what constitutes “reasonable” obstruction of the highway

During last week’s trial of anti-fracking campaigners charged with obstructing the highway near the Horse Hill exploration site in Surrey, one defendant made the surprising claim that a solicitor at the London law firm Bindmans had told him “it was OK to walk in the road”.

District Judge William Ashworth said he was “disturbed” by this statement, although it seems more like a simple misunderstanding of a solicitor’s advice. It reflects, though, the degree of confusion felt by many anti-fracking protesters about their rights to protest against lorries and tankers arriving at oil and gas exploration sites – and in particular, the use of the “slow-walking” tactic.

All nine Horse Hill defendants were found not-guilty and in January this year, two other campaigners (this time charged with aggravated trespass) were also acquitted for slow-walking in front of lorries on the private Barton Moss Road in Salford back in 2014. Evidence showed they were initially compliant with requests to keep moving in front of the police line and made steady progress along the road, but were arrested after officers changed their tactics and sought to significantly increase the pace of the protestors.

The judge in Manchester said the tactic of slow-walking had been tolerated on a number of other occasions and it was the arrival of public order officers from Greater Manchester Police’s Tactical Aid Unit that had changed a pace that was “normally acceptable to the authorities”. In these very specific circumstances, he felt that the two defendants’ only culpability, “such as it was, was not to walk at the speed which had been imposed upon protesters by the police without warning or explanation”. However, he found a third defendant, who had chosen to kneel down in the road, guilty of the same charge.

The Barton Moss case led to the Crown Prosecution Service formally discontinuing a large number of other trials. This, coupled with last week’s acquittals, seems likely to lead many to believe a precedent had been set on the slow-walking tactic. One Horse Hill defendant described her acquittal as “a victory for democracy” and added, “It confirms that we do have a lawful right to reasonable obstruction of the highway and peaceful protest.”

The problem, however, is that magistrates court cases do not establish binding judgments and the laws used in public order situations continue to provide the police with a considerable degree of discretionary power. As District Judge Ashworth remarked last week, walking in the road is “clearly a matter of fact and degree. It is not a legal principle that this is lawful behaviour.”

Nevertheless, the police are still required to show during any court trial that their decisions about what is unlawful behaviour were proportionate and ‘human-rights compliant’. At Horse Hill, Surrey Police adopted a five-step warning process devised by the National Police Chiefs Council, purportedly to ‘facilitate protest’ and avoid arrests.

The wording of the five-step warnings reads:

Step 1 – Simple Appeal – Ask the subject to comply with the officers request.  Most members of the public may respond to a direct request from a police officer. NB to be given by “Warning Team” officer wherever possible.  Ask … “Will you get up/release yourself?”

Step 2 – Reasoned Appeal – Explain why the request has been made, what law, if any, has been broken, and what conduct has caused the request. NB. To be given by “Warning Team” officer wherever possible.

Explain/Tell…”You are blocking the road stopping traffic entering or exiting etc.  By your actions you are committing an offence and I ask you to move yourself/release yourself”

Step 3 – Personal Appeal – The implications of their actions, potential arrest, criminal record, loss of respect in their family or community and the potential to effect future employment. NB. To be given by “Warning Team” officer wherever possible.

Give Options/Remind (if appropriate) ”Think of the amount of time and money”, Alternative protest site etc”

Step 4 – Final Appeal – At this stage subjects may have confirmed their resistance to the officer’s requests. The officer should now finally tell them what is required use a phrase that means the same as the below confirmation. It is important that the arrest is made for the relevant offences at this stage, ensuring that the necessity test guidelines have been reached and relaying these to the subject.  (NB: this final appeal must be given by the arresting officer).

Confirmation … Is there anything I can reasonably do to make you co-operate and release yourself?

Step 5 – Action – Physical force may be the only option left in a case of continued resistance.  The option that the officer may choose will be based upon the threat that they perceive. 

Action “I am now going to take steps to have you removed. Do you have any injuries or underlying medical issues that I need to be aware of?”

Important Note: If you have negotiated a time for them to consider the warning or to comply with any conditions, please ensure this time has lapsed before making approach to enforce or arrest.

In early March, Netpol visited the Horse Hill protectors’ camp and observed this warning process in action. We saw the uncompromising attitude of officers to obstruction of the highway and heard of the uncertainty felt by protesters about what might trigger an arrest. During last week’s trial, the ‘silver’ tactical commander in charge of the policing operation, Superintendent Clive Davies, told the court that his officers allowed “some time” for slow-walking protests, although this is not what we had witnessed. Davies added that arrests were only made when obstruction of the highway was no longer “reasonable”.

However, officers giving evidence were repeatedly challenged for issuing warnings when protesters were standing on the grass verge, for rushing through the steps at such a speed that protesters could barely heard them or for not completing all the warnings before arrests were made. One officer is heard on video footage saying, “let’s get the warnings out of the way”.

Others said they were briefed daily on using the five-step process but were unable to recall whether the right to protest was ever mentioned. The court heard that despite Superintendent Davies’ assertions, the ‘bronze’ operational commander on the ground invariably took a zero tolerance approach to slow-walking.

What District Judge Ashworth’s not-guilty verdicts reflect is Surrey Police’s failure to show its operation at Horse Hill was proportionate. The trial provided compelling evidence that police officers saw protesters as a little more than a nuisance and gave little genuine consideration to their rights to assemble or freedom of expression. The five-step warning process appears to have been viewed as a hindrance to making arrests, rather than a way of preventing them. This was essentially condoned by Surrey Police’s tactical and operational planning and by the senior officers responsible for it.

The verdicts are an important victory, especially with more protesters facing trials in July. What they does not offer, however, is a definitive legal ruling in favour of the tactic of ‘slow-walking’.

As long as the policing of anti-fracking protests is as ‘robust’ as the one carried out by Surrey Police, campaigners have little choice but to continue to insist on the right to protest in a way that has an genuine impact on the fracking companies – and to face the possibility of arrests when they protest in any meaningful way.