Briefing for Oil and Gas Clients - Update on Protestor Activity 

It is 12 months since we held our "protestor breakfast" in Aberdeen.  What has happened since? While there has been little, if any, ENGO activity in Scotland, at least so far as the oil and gas industry is concerned, environmental protests continue to be in the news, with the Camp for Climate Change Scotland taking place earlier this month.

The campaign against coal fired power stations and open cast mining has continued both north and south of the border, and in Europe farmers have been protesting over retail milk prices.

The campaign against coal fired power stations has continued to focus on Kingsnorth Power Station in Kent.  Last September, six Greenpeace activists were acquitted of causing criminal damage following a protest in which they succeeded in temporarily shutting down the power station. Removal of the graffiti which they painted on was estimated to cost £35,000.

In their defence, the protestors argued that coal produces more of the carbon emissions which cause climate change than any other fuel. They argued CO2 emissions from Kingsnorth would damage property through the effects of climate change the emissions would help cause. The protestors relied on a statutory defence of "lawful excuse" which they said allowed them to damage the power station to prevent the greater damage to properties worldwide which would be caused by climate change. This defence was accepted and all of the protestors were acquitted.

The "lawful excuse" defence (under Section 5(1) of the Criminal Damage Act 1971) arises if the accused person destroyed or damaged property in order to protect other property belonging to himself or someone else, and at the time of the acts alleged to constitute the offence, he believed that the property was in immediate need of protection; and that the means of protection adopted was reasonable, having regard to circumstances.

This Act does not apply in Scotland and therefore any protestors in Scotland could not rely on this defence.

The campaign against coal fired power stations continued. In June, Greenpeace boarded a coal freighter bound for Kingsnorth. A swimmer swam ahead of the container ship to try and prevent it delivering the coal. The protest ended when the protestors were served with an injunction.   

The law in this area developed with an English High Court decision in a case involving a number of pharmaceutical companies seeking injunction against trespass and harassment by animal rights activists. This case (Smithkline Beecham plc and Others v Greg Avery and Others [2009] EWCH 1488 (QB)) is believed to be the first case in which a company was able to obtain protection for its employees by way of an injunction under the Protection from Harassment Act 1997, and is another weapon of which companies who may be targeted by protestors will wish to be aware.

Although there may be no imminent threat of activity, it is important to be aware of the ways in which the court system can be used to get the right order as quickly as possible in order to end a protest safely and peacefully and with the minimum adverse publicity. At McGrigors, with our unique experience we can advise on this and on the appropriate orders which should be sought urgently using the court process to resolve matters quickly, whether within normal working hours or, as is often the case, out of hours. 

An increasingly wide range of businesses are finding themselves the subject of unwanted attention from protestors.  There is a risk that a number of industries will increasingly be in the spotlight in relation to this sort of activity.  When there is a disruption to your business ending the protest peacefully is the priority and at McGrigors we can help achieve this.

For further information contact:

Heidi Archibald
Senior Associate
Tel +44 (0)131 777 7123
Email heidi.archibald@mcgrigors.com

Bob Ruddiman
Partner, Head of Energy
Tel +44 (0)1224 377 925
Email bob.ruddiman@mcgrigors.com