Protest under Pressure: Injunctions against ‘persons unknown’ and the right to protest

Imagine walking onto the campus of the University to peacefully exercise your fundamental right to protest – only to find yourself arrested for breaching an injunction you never knew existed. While this may sound extreme, it’s a reality at some universities, where injunctions against ‘persons unknown’ can silently threaten individuals who have no idea they’re being targeted. This growing practice is being used to target university protesters, environmental protesters, and the rights of minority groups like travellers. 

Simply put, an injunction is a court order which compels one or more people to stop doing an act. The act in question can range from blocking the highway, to trespassing on someone else’s land, to publishing untrue statements. The field of protest injunctions has been rapidly developing in recent years, with private entities as well as public bodies using injunctions to stop disruption or harassment from protesters. Increasingly, protest injunctions are being granted not against named defendants, but against ‘persons unknown’. This is a term that has general meaning and theoretically applies to everyone. Both public and private bodies are seeking these injunctions, meaning that prohibition from general protest can theoretically be granted on any public and private area. Already there is a general injunction prohibiting protest along HS2 development. 

Injunctions against persons unknown are useful in situations where a party seeks to control behaviour and protect themselves, especially in situations where the names of the parties are elusive. However, a delicate balance must be struck between protecting the rights of parties and respecting the rights of protesters. Concerns arise when private entities circumvent the legislature to further their objectives. Individuals should not be incarcerated without contravening a legislative prohibition, yet protesters are being detained for contempt of injunctions issued by private parties. In many cases, protesters may be unaware of an injunction yet still face civil action or contempt of court for not complying. This is a small part of the increasingly hostile anti-protest culture in the UK, with a rise in draconian anti-protest laws and the alarming erosion of the rights of freedom of expression and assembly. Injunctions against persons unknown utilise the civil law without using the appropriate civil law procedures. They are often granted without challenge, and ‘persons unknown’ lack the ability to challenge injunctions that may impact them in the future. The court is incapable of serving an injunction to unidentified individuals. 

In the case of Canada Goose, the retailer applied for a Summary Injunction against persons unknown to stop the protests of animal rights activists and were denied the injunction. Nicklin J stated that the description of ‘persons unknown’ was ‘impermissibly wide’, and could include a person who had never been near the store or had no intention of going there. It could ‘include a peaceful protestor in Penzance’. Nicklin J’s judgment concluded that final injunctions could only be made against parties who had an opportunity to contest the final judgment. However, this approach has been considered unorthodox with the general approach being that injunctions against persons unknown are permissible and has been reenforced in recent cases of Barking and Dagenham LBC v Persons Unknown which involved injunctions against potential future travellers and Gypsies, University of London v Harvie-Clark. Further confirmation came from the Supreme Court in the recent case of; Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47 where the court held that courts had power to issue injunctions against ‘person unknown’, however their use should be restricted to the protection of civil rights or the enforcement of public law, and cited the rights of Gypsies and Travellers to live their traditionally nomadic lifestyle. However, the court stopped short of protecting protest rights. The approach seems inconsistent.  

A democratic society requires many things, it requires order and predictability, and it requires that democratic voices are given the rights to express themselves and to freely assemble. It also requires a balance between these things. What we see in the development of this area of the law is that the balance is skewed in favour of the rights of the private parties, with no consideration given to the rights of protesters. Not only is this a violation of article 10 of the Human Rights Act, but it is also a threat to the fabric of a democratic society. Despite the Supreme Court’s caution that injunctions against ‘persons unknown’ should be used with restraint, public groups still feel that the injunctions pose a threat. Freedom of Expression and Freedom of Assembly are qualified rights, meaning they can only be infringed by legal prohibition, and the infringement must be proportionate. Allowing injunctions against ‘persons unknown’ allows for private companies through the civil law to infringe on the rights protected by the HRA without any legislative or democratic authorisation. 

Interest groups, like Friends of the Earth and Liberty expressed concerns about the Supreme Court Decision and the rise in injunctions against persons unknown and its effect on environmental protesters.   

The law is going in the wrong direction and is being used in a new way for new purposes which requires new review. In a climate that is increasingly hostile to protesters who exercise their rights of freedom of expression and assembly, the development of protest injunctions against ‘persons unknown’ is used as an insidious tool to limit that right. Private and public organizations may use the civil law to impose harsh penalties on protesters who may not be aware that they are subject to an injunction and allows for the scales of justice to be tipped in favour of private actors.