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Injunctions and the “Right to Demonstrate”

Published online by Cambridge University Press:  16 January 2009

Peter Wallington
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Extract

Injunctions against pickets and demonstrators are not common. There appear to be no reported cases in England between 1899 (when Llandudno Urban District Council tried to stop a clergyman from preaching on the beach) and the disputes in the London Docks in 1972. In Hubbard v. Pitt, the use of injunctions again came to the fore, when a firm of estate agents obtained interlocutory injunctions restraining members of a tenants' campaign from picketing their premises as a political protest.

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Articles
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The Cambridge Law Journal , Volume 35 , Issue 1 , April 1976 , pp. 82 - 111
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Copyright © Cambridge Law Journal and Contributors 1976

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References

1 Llandudno U.D.C. v. Woods [1899] 2 Ch. 705.

2 See Churchman v. J.S.S.C. [1972]Google Scholar I.C.R. 222; Midland Cold Storage v. Turner [1972]Google Scholar I.C.R. 230; Midland Cold Storage v. Steer [1972]Google Scholar I.C.R. 435.

3 [1975] 2 W.L.R. 254; 3 W.L.R. 201.

4 [1975] 2 W.L.R. 316; Gore (1975) 38 M.L.R. 672.

5 Trade Union and Labour Relations Act 1974, s. 16.

6 A good example of the exercise of discretion is the Llandudno case [1899] 2 Ch. 705. Cozens-Hardy J. held that the public right to use the foreshore was confined to the incidents of navigation; any other activity, including the defendant's preaching, was a technical trespass against the plaintiffs as lessees of the foreshore; but the defendant's conduct was harmless, and an injunction was “a formidable legal weapon that ought to be reserved for less trivial occasions.”

7 Unless the plaintiff is the Crown acting to enforce the law: Secretary of State for Trade and Industry v. F. Hoffmann-La Roche [1974] 3 W.L.R. 105.Google Scholar

8 [1974] F.S.R. 312, 333A.

9 Hubbard v. Vosper [1972] 2 Q.B. 84, 96.Google Scholar

10 [1965] A.C. 269. A typical approach is that of Lord Pearce, at p. 331E: “The question now to be decided is whether the plaintiffs have made out a prima facie case.” See also Lord Upjohn, at p. 338.

11 [1975] 2 W.L.R. 321B.

12 Ibid. at p. 323A.

13 Broome v. Cassell [1972]Google Scholar A.C. 1027; Miliangos v. George Frank (Textiles) Ltd. [1975] 3 All E.R. 801, 820–823Google Scholar (Lord Simon of Glaisdale).

14 Fellowes v. Fisher [1975] 3 W.L.R. 184, 192A.Google Scholar

15 [1975] 2 W.L.R. 324H.

16 [1975] 3 W.L.R. 184.

17 See Lord Denning M.R. at pp. 188G–189C; Browne L.J. at p. 199B, and Sir John Pennycuick at pp. 200H–201A.

18 Stamp and Orr L.JJ.

19 [1975] 2 W.L.R. 324E.

20 [1975] 3 W.L.R. 219B.

20a The Court of Appeal has now held, in Bryanston Finance Ltd. v. de Vries (No. 2) [1976] 1 All E.R. 25Google Scholar, that the Cyanamid rule does not apply in one special kind of proceeding: where a company seeks an interlocutory injunction to restrain the presentation to the court of a petition for its winding up. But this exception is narrow in scope, as can be seen from the three reasons given for distinguishing Cyanamid: (i) the procedure was merely a more advantageous alternative to an application to strike out the petition as an abuse of process, which would require proof of the plaintiff's assertion; (ii) the plaintiff had no legal right to prevent litigation against it, but only to prevent such litigation as was an abuse of the court's process. It followed that the substance of the plaintiff's case had to be shown to establish its right to invoke the court's jurisdiction at all; and (iii) the action, though in form interlocutory, was in fact a summary procedure whereby the whole issue between the parties could be settled—in this case whether the defendant could lodge a winding-up petition. In practice there was no way in which the case could subsequently be brought on for final trial. (Sir John Pennycuick (at p. 39a) suggested that a new form of procedure should be devised to make clear that such an application really was a once-for-all procedure.) Nevertheless there is room for an extension of this approach at least to those cases where “interlocutory” proceedings necessarily determine the dispute—as in Sherard v. A.U.E.W. [1973]Google Scholar I.C.R. 421, below, n. 22.

21 But see Prescott (1975) 91 L.Q.R. 169 for some of the consequences in the commercial field.

22 [1973] I.C.R. 421.

23 The strike could have been held later, but since it was part of a concerted protest against current government policy, the point would have been lost.

24 [1969] 1 Q.B. 349. See also Hubbard v. Vosper [1972] 2 Q.B. 84.Google Scholar

25 [1975] 1 All E.R. 41.

26 Ibid. at p. 52, quoting Lord Cottenham L.C. in Prince Albert v. Strange (1849) 1 Mac & G. 25, 47.

27 Gore, op. cit., p. 678, suggests a way round Cyanamid: the defendant can tender evidence of the plaintiff's conduct to show that he lacks clean hands. True, he who comes to equity must have clean hands, but (i) the defendant may not always be able to show that the plaintiff is also at fault, and (ii) the courts have not shown much assiduity in recent years in examining the plaintiff's conduct in interlocutory proceedings.

28 The rule in breach of confidence cases that “there is no confidence in iniquity” (Hubbard v. Vosper above; Fraser v. Evans [1969] 1 Q.B. 349Google Scholar) is another important acknowledgement of the value of freedom of speech.

29 [1891] 2 Ch. 269, 284.

30 For the practice in granting labour injunctions see Davies, P. L. and Anderman, S. D., “Injunction Procedure in Labour Disputes” (1973) 2 I.L.J. 213Google Scholar; (1974) 3 I.L.J. 30.

31 Trade Union and Labour Relations Act 1974, ss. 13–14.

32 s. 13 (1) protects inducing or threatening breach of contracts of employment, but not commercial contracts; the difficulties that this distinction can create are shown in Emerald Construction Ltd. v. Lowthian [1966] 1 W.L.R. 691.Google Scholar But it is likely that by the time this article appears in print the Trade Union and Labour Relations (Amendment) Bill, reintroduced by the Government in November 1975, will have become law under the Parliament Acts; if so most of the difficulties as to the limits of the substantive immunity will be removed, but not those affecting picketing—see n. 51 below.

33 H.L.Deb., 23 October 1975, cols. 1683–1686. The amendment was approved without debate in the Commons: H.C.Deb., 29 October 1975, col. 1706.

34 Employment Protection Act 1975, Sched. 16, Pt. III, para. 6.

35 See Gore, op. cit., for a more detailed analysis of this aspect of the case.

36 A rare exception is Chappell v. Times Newspapers [1975] 1 W.L.R. 482Google Scholar (application to restrain a lockout refused).

37 [1965] A.C. 269, 331G.

38 [1966] 1 W.L.R. 691, 702A. For further discussion of this point, see Anderman and Davies, op. cit., 2 I.L.J. at pp. 224–225 (discussing also the Scottish case of Square Grip Reinforcement Ltd. v. MacDonald, 1966Google Scholar S.L.T. 232).

39 [1975] 3 W.L.R. 223E–F.

40 [1975] 2 W.L.R. 269H, 3 W.L.R. 218H.

41 Sometimes pickets move up and down outside the premises or (as in Tynan v. Balmer [1967] 1 Q.B. 91Google Scholar) walk round in a circle, so as to avoid the legal consequences of remaining stationary. Such picketing requires a different legal approach, but rarely achieves a different legal status. See below, n. 86.

42 Highways Act 1959, ss. 1, 226, 228–230. The highway authorities are the Secretary of State for the Environment (for trunk roads), the Greater London Council and County Councils.

43 See Hague v. C.I.O., 307 U.S. 496, 515 (1938) (Roberts and Black JJ.).

44 Compare Feiner v. New York, 340 U.S. 315 (1951)Google Scholar with Duncan v. Jones [1936] 2 K.B. 218.Google Scholar

45 As in Kavanagh v. Hiscock [1974]Google Scholar Q.B. 600. Police officers apprehended a breach of the peace if pickets were allowed to approach a coachload of blackleg workers leaving a building site, and accordingly held back the entire assembly of pickets with a cordon. It was held that the pickets' presence was merely lawful (this much was established by the statutory immunity for picketing, then the Industrial Relations Act 1971, s. 134): there was no right to picket. Since the police had a duty to preserve the peace, the cordon was within the execution of their duty, and K was guilty of obstruction in trying to break through it.

46 [1975] 3 W.L.R. 212H–213A.

47 Redbridge London Borough Council v. Jacques [1970] 1 W.L.R. 1604Google Scholar; Cambridgeshire & Isle of Ely County Council v. Rust [1972] 2 Q.B. 426.Google Scholar

48 Dovaston v. Payne (1795) 2 H.B1. 527; R. v. Pratt (1855) 4 E. & B. 860.

49 [1893] 1 Q.B. 142.

50 [1900] 1 Q.B. 753; see also Hadwell v. Righton [1907] 2 K.B. 345, 348.Google Scholar

51 Picketing in contemplation or furtherance of a trade dispute is legalised by statute: Trade Union and Labour Relations Act 1974, s. 15. For the extent of the conduct protected, see Tynan v. Balmer [1967] 1 Q.B. 91Google Scholar, and Broome v. D.P.P. [1974]Google Scholar A.C. 587. It should be noted that “consumer picketing” (i.e., attempting to persuade customers not to patronise the employer with whom there is a dispute) is not protected unless it can be classified as merely “communicating information”—an unlikely view in the light of Lyons v. Wilkins [1899] 1 Ch. 255. Legalisation of this type of picketing was recommended by the Royal Commission on Trade Unions (Cmnd. 3623, 1968, paras. 872 and 875) but the recommendation has not been enacted.

52 See Llandudno U.D.C. v. Woods [1899] 2 Ch. 705, above, n. 6. Lord Denning thought that a highway authority could not sue at all [1975] 3 W.L.R. 209G; but since trespass is actionable per se, this cannot be right.

53 See Article 11 (1) of the European Convention and Article 20 of the Universal Declaration. These do not as such confer rights in English law. While the terms of international agreements ratified by the Crown may be taken into account in interpreting the effect of statutes (Parliament is presumed not to intend to legislate contrary to the international obligations of the Crown), the traditional view is that treaty obligations do not affect the common law, since that would give a law-making power to the executive. However it could be argued that these conventions lay down minimum standards for civilised legal systems, and that the courts in formulating the common law should take proper account of current standards. There are clear hints of such an approach in the remarks of Scarman, L.J. in R. v. Home Secretary, ex p. Phansopkar [1975] 3 All E.R. 497, 510J–511D.Google Scholar Moreover an individual sued for trespass in the course of a demonstration on the highway could complain to the European Commission of Human Rights of a violation of the Convention, invoking a process which could lead to a decision binding on the Crown in international law.

54 Harrison v. Duke of Rutland [1893] 1 Q.B. 142, 146–147.

55 R. v. Kamara [1974]Google Scholar A.C. 104. See below, p. 106.

56 R. v. Madden [1975] 3 All E.R. 155.Google Scholar

57 In an unreported case at Leeds Crown Court in early 1975, an injunction was granted to restrain the defendant from keeping a lion in a cage on top of his garage. The lion was a potential danger if it escaped, and attracted large crowds to the area.

58 See Lyons v. Gulliver [1914] 1 Ch. 631Google Scholar (theatre queue obstructing entrance to plaintiff's tea shop several times daily; injunction granted).

59 Such pickets will probably be guilty at least of obstructing the highway (Broome v. D.P.P. [1974]Google Scholar A.C. 587) and watching and besetting the premises (Conspiracy, and Protection of Property Act 1875, s. 7 (4)).

60 [1896] 1 Ch. 811; [1899] 1 Ch. 255.

61 Conspiracy, and Protection of Property Act 1875, s. 7 (4).

62 Ward, Lock & Co. Ltd. v. Operative Printers' Assistants' Society (1906) 22 T.L.R. 327Google Scholar; followed in Fowler v. Kibble [1922] 1 Ch. 487Google Scholar, and approved by Reid, Lord in Broome v. D.P.P. [1974]Google Scholar A.C. 587, 595G.

63 [1899] 1 Ch. 255, 267 and 273.

64 (1906) 22 T.L.R. 327.

65 Ibid. p. 330.

66 Where the pickets' primary purpose is not the furtherance of legitimate interests but the harming of the plaintiff, they may be liable for conspiracy to injure: Quinn v. Leatham [1901]Google Scholar A.C. 495. There was a claim for conspiracy in Hubbard v. Pitt, but it appears not to have been pressed, and Lord Denning found no evidence of an actionable conspiracy.

67 [1975] 3 W.L.R. 211E–F.

68 [1975] 2 W.L.R. 260E–262B.

68a The penalty for a common law misdemeanour is technically “at large,” or limited only by judicial discretion. In practice the maximum sentence should not exceed two years' imprisonment unless the case is a serious one: R. v. Morris [1951] 1 K.B. 394Google Scholar; R. v. Higgins [1952] 1 K.B. 7.Google Scholar

69 Pratt & Mackenzie, Law of Highways (21st ed) 112, adopted by Simonds, Lord in Jacobs v. L.C.C. [1950]Google Scholar A.C. 361, 375.

70 [1933] Ch. 298.

71 Lowden v. Keaveney [1903] 2 I.R. 82Google Scholar; R. v. Clark (No. 2) [1964] 2 Q.B. 315.Google Scholar

72 [1948] 1 All E.R. 53.

73 See Dymond v. Pearce [1972] 1 All E.R. 1142Google Scholar and Wickstead v. J. Murphy & Sons [1975] 1 C.L. 257Google Scholar as examples. The obstruction may still be an offence, of course.

74 Highways Act 1959, s. 121 (1). See especially Seekings v. Clarke (1961) 59 L.G.R. 268Google Scholar, explained by Slade, J. in Wolverton U.D.C. v. Willis [1962] 1 W.L.R. 205, 208Google Scholar; and Arrowsmith v. Jenkins [1963] 2 Q.B. 561.Google Scholar

75 [1972] 1 All E.R. 1142.

76 [1955] 1 W.L.R. 113, 117.

77 See especially R. v. Madden [1975] 3 All E.R. 155.Google Scholar The defendant made a 999 call alleging that a bomb had been planted at a steel works. Only the telephonist who took the call, the police and security staff at the steel works knew of the matter before the call was discovered to be a hoax. It was held that making a hoax call of this kind could be a public nuisance, but it was necessary to prove that the public were affected by the call, not (as the judge had directed the jury) that they were likely to be so affected. So the conviction was quashed. Cf. also A.-G. v. P.Y.A. Quarries Ltd. [1957] 2 Q.B. 169, 184Google Scholar, on public nuisance arising from the operation of noisy or dangerous activities.

78 (1834) 6 C. & P. 636.

79 Ibid. p. 648.

80 [1967] 1 Q.B. 91.

81 Ibid. p. 97E.

82 Ibid. p. 105D.

83 [1955] 1 W.L.R. 113.

84 Ibid. pp. 117–118.

85 [1933] Ch. 298, 304.

86 But it should be remembered that moving about is not the same thing as passage. The tout in Hickman v. Maisey [1900] 1 Q.B. 753Google Scholar paced up and down as he watched the horses, but it availed him nothing. The pickets in Tynan v. Balmer [1967] 1 Q.B. 91Google Scholar went round in a circle, but since their object was to create an obstruction they were no more exercising rights of reasonable passage than if they had stood still. An apt analogy can be drawn from a case in which the proprietors of the Big Dipper at Blackpool claimed to be zero-rated for VAT because the facility they provided fell within the class of “passenger transport.” Lord Widgery C.J., in rejecting this contention, based his view on the distinction between conveyance from A to B, which was transport, and “movement upon one spot” which was not. (Commissioners of Customs and Excise v. Blackpool Pleasure Beach Co. [1974] 1 W.L.R. 540.Google Scholar)

87 e.g., Rose v. Miles (1815) 4 M. & S. 101.

88 Harper's case [1933]Google Scholar Ch. 298, 304.

89 S.I. 1952 No. 776, Reg. 3 (5).

90 Scarman L.J. has recommended that these provisions be made uniform throughout the country: The Red Lion Square Disorders of 15 June 1974, Cmnd. 5919, para. 134 (4).

91 [1974] A.C. 104, 130B. The Court of Appeal had held all conspiracies to trespass indictable: [1973] Q.B. 660.

92 Conspiracy, and Protection of Property Act 1875, s. 3.

93 Law Commission Working Paper No. 50, Inchoate Offences, H.M.S.O. 1973Google Scholar, paras. 8–22; Working Paper No. 63, Conspiracies to effect a Public Mischief and to commit a Civil Wrong, H.M.S.O. 1975Google Scholar, Pt. III.

94 Public nuisance being a crime, it is and would remain an offence to agree to commit a public nuisance.

95 These are both common law misdemeanours, and an arrestable offence under s. 2 of the Criminal Law Act 1967 requires a maximum penalty fixed by statute. At common law, a police officer may only arrest without warrant for misdemeanour where a breach of the peace is involved or apprehended: Gelberg v. Miller [1961] 1 W.L.R. 153.Google Scholar

96 [1911] 1 K.B. 337.

97 Arrowsmith v. Jenkins [1963] 2 Q.B. 561.Google Scholar

98 Redbridge London Borough Council v. Jacques [1970] 1 W.L.R. 1604.Google Scholar

99 Horner v. Cadman (1886) 54 L.T. 421.

1 Arrowsmith's case [1963] 2 Q.B. 561.Google Scholar

2 Ibid.

3 Dixon v. Atfield [1975] 1 W.L.R. 1171.Google Scholar

4 Nagy v. Weston [1965] 1 W.L.R. 280, 284.Google Scholar

5 The Highways Act 1959 was a consolidating measure, but the words “without lawful authority or excuse” are new, as they did not appear in the previous legislation (Highways Act 1835, s. 72).

6 This point has been applied in connection with the European Convention in three cases: Waddington v. Miah [1974] 1 W.L.R. 683.Google ScholarR. v. Home Secretary, ex p. Bhajan Singh [1975] 3 W.L.R. 225Google Scholar, and R. v. Home Secretary, ex p. Phansopkar [1975] 3 All E.R. 497.Google Scholar

7 [1963] 2 Q.B. 561.

8 (1882) 9 Q.B.D. 308.

9 Duncan v. Jones [1936] 2 K.B. 218.Google Scholar It is in this context that the offence of wilfully obstructing a police officer in the execution of his duty becomes relevant.

10 As to which see Daintith [1966] P.L. 248; Birtles (1973) 37 M.L.R. 587.

11 The Red Lion Square Disorders of 15 June 1974, Cmnd. 5919, paras. 123, 134 (7) (The Scarman Report).

12 While writing this article, the author happened to watch a group of Morris Dancers giving a display on the village green. They occupied part of the roadway on one side of the green for upwards of half an hour, and occasional cars had to make a short detour round the green. Forbes J. would have it that these Morris Dancers were all criminals, guilty of public nuisance. One can only reply that no jury in England would convict them.

13 Apart from the legislation on industrial picketing, Hubbard v. Pitt has prompted one attempt at legislation. Mr. Greville Janner M.P. obtained leave to introduce a Picketing (Amendment) Bill, which he said would “reinstate” the right to picket as propounded by the Master of the Rolls: H.C. Deb., 5 August 1975, cols. 253–255. The Bill lapsed without having received a Second Reading at the end of the Parliamentary Session in November 1975. The Home Secretary is “considering” a change in the law: H.C. Deb., 22 October 1975, col. 184.

14 I am grateful to Mr. B. A. Hepple and Professor O. Kahn-Freund for their constructive criticisms of an earlier draft of this article. The errors that remain are my own.