Our Barrister's Argument
Our Case, part 2, presented by barrister Carl Buckley on behalf of Rowan Tilly
IN THE WOOLWICH CROWN COURT URN: 01MP0239531 01MP0239721
…, …, …, DIANA WARNER, …, …, …, ROWAN TILLY, ANA HEYATAWIN, …, … and …, …, …
SKELETON ARGUMENT ON BEHALF OF MS ROWAN TILLY,
Introduction
On 27 January 2025 a collective application was made by 5 of the Defendants, all of whom at that juncture representing themselves without the benefit of legal assistance, for the opportunity to advance an argument that proceed with the prosecution as per the indictment, would amount to a violation of their rights per Article 6 of the European Convention on Human Rights (“the Convention”), in that it was not possible in the circumstances of this case for any of those Defendant’s to receive a fair trial.
HHJ Grout on 31 January 2025 ordered that the matter be listed to enable those submissions to be made.
That hearing was listed for 25 April 2025.
On 23 April 2025, Ms Tilly made an application for that hearing to be adjourned, having instructed legal representation.
That application was granted and re-listed for 23 June 2025.
This skeleton argument is submitted on behalf of Ms Tilly.
It is believed, although the Defendant is happy to be corrected, that the listing of HHJ Grout was akin to listing an application dismiss, this assumption being made on the basis that if the Court was to find favour with the submissions made, seemingly, the only option open would be to dismiss.
The Defendant therefore approaches it on this basis, and will address the court on this point should those submissions be required.
Further, having received advice on the application, Ms Tilly does not seek to advance that the prosecution and/or forthcoming trial infringes her rights per Article 6 of the Convention, but instead seeks to make arguments as set out below in Part 4 of this skeleton.
Factual Outline
The factual outline for the purposes of these submissions are taken from the ‘Draft Agreed Facts’ and are repeated below.
All 12 Defendants participated in a protest in the name of the group Insulate Britain (‘IB’) on Friday 1 October 2021 at Junction 3 of the M4 motorway.
IB have made a list of demands of government relating to the insulation of social housing and a national plan for British homes to be low energy / low carbon by 2030.
The action taken on 1 October 2021 was part of a series of similar protests taking place on motorways around the country. These protests all involved members of the group physically obstructing major motorway junctions during the morning rush hour with the intention of causing disruption to traffic and thereby drawing attention to the group’s message.
On 22 September, National Highways applied for a court order to stop the protesters from causing disruption to the M25 road network. The injunction was granted by the High Court. That injunction prohibited people from ‘blocking, endangering, slowing down, obstructing or otherwise preventing the flow of traffic on the M25’.
Junction 3 of the M4 is also known as the Cranford Parkway Interchange. It is one junction east of Heathrow Airport and two junctions east of the junction with the M25.
The M4 is part of the Strategic Road Network (‘SRN’) in England. It is the main motorway into London from the west and a critical route into Heathrow Airport.
At the same time as this protest was occurring, IB protesters were also blocking junctions 1 of the M1 (Staples Corner) and junction 25 of the M25. This meant that multiple critical junctions were obstructed simultaneously.
The Defendants walked onto the carriageway at the junction at around 8:12am. The junction is controlled by traffic lights, and the Defendants walked onto the road whilst the lights were red. They sat down on the carriageway blocking all three lanes and preventing traffic from moving when the lights turned green.
This caused traffic to become stationary on the interchange roundabout, and to become backed up on the M4 and A312.
Police were notified by members of the public and the Highways Agency. Officers arrived at the scene initially by motorbike, followed by police carriers arriving at around 8:27am.
Due to the backed up traffic, it was difficult for police vehicles to access the scene and members of the public were required to move their cars onto the grass central reservation in order to allow police to pass.
Some of the protesters had superglued themselves to the road or to each other, and others were locked together with a bicycle lock. This required the attendance of specialist officers who arrived around 9:05am. Those officers were able to use a solution to safely dissolve the superglue and unglue protesters from the road / each other.
The same ‘Draft Agreed Facts’ go on to particularise the relevant facts for each specific Defendant, only Ms Tilly is repeated below that document providing that the Defendant was sitting in the road in lane 2 with the palm of her left hand glued to Diana WARNER. She was arrested at 8:30. She and Ms WARNER were assisted in standing off and the two walked off the carriage way. No injury was caused or risked to any individual.
Statutory Framework
The Defendant(s) is charged with the common law offence of nuisance, the same being defined in R v Rimmington [2005] UKHL 63 as being:
A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.’
As the alleged offence was committed during a ‘protest’ certain Convention rights are engaged.
Article 10 reads:
Freedom of expression-
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11 reads:
Freedom of assembly and association-
Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
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No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State
Of further relevance for the purposes of this submission, are Articles 8 and 3.
Article 8 reading:
Right to respect for private and family life-
Everyone has the right to respect for his private and family life, his home and his correspondence.
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There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 3 reading:
Prohibition of tortureNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Submissions
The tenor of the Defendant’s submissions fall into the following categories:
That the prosecution amounts to a disproportionate interference with a Convention right and therefore ought to be dismissed;
That the prosecution amounts to a disproportionate interference with a Convention right and therefore ought to be ‘stayed’ as an abuse of process.
That in the alternative, taking into account the failure of the UK Government to act on climate change, and act on the commission of an international crime prescribed within the Rome Statute, namely ‘other inhumane act’ per Article 7(1)(k) of the Rome Statute, and Part 1(k), of schedule 8 of the International Criminal Court Act 2001, that the Defendant had a reasonable excuse.
There is a degree of cross-over between the 3 grounds above however, for ease, each will be dealt with separately.
That the prosecution amounts to a disproportionate interference with a Convention right and therefore ought to be dismissed or stayed as an abuse.
There is a significant degree of cross-over between the first two points and thus will be grouped together for the purposes of this skeleton.
For completeness however, it is submitted that the act of protest or in the alternative, the acts of the Defendant, amount to act that constitutes either ‘expression’ within the context of Article 10 of the Convention, or in the alternative, and act of assembly or association within the meaning of Article 11 of the Convention, or both.
It is submitted to be unlikely that there will be dispute as to whether the offence indicted engages a Convention right, given the nature of the indicted offence itself, noting this is not an offence similar to that of the Colston Four - Attorney General’s Reference (No.1) [2022] EWCA Crim 125 where, the actions were deemed to fall outside of the protection of the Convention.
In the instant case, it is submitted that there is no basis upon which to determine that there was a credible risk of ‘endangerment’, at worst, the issue is one of inconvenience, and as much as such behaviour is arguably covered within the common law definition of the offence per Rimmington above, the same is not sufficient to render a conviction on those facts Convention compliant.
As a consequence, the Defendant submits that a ‘fact sensitive proportionality assessment’ is required, and that that assessment is undertaken at this stage of the proceedings.
In making that submissions the Defendant highlights:
The protest was peaceful, no violence was used, threatened, or anticipated;
Similarly, no damage was caused, threatened, or anticipated, the issue is one of inconvenience.
As a consequence the Defendant submits that the position in DPP v Ziegler & Others [2021] UKSC 23 is applicable and per Transport for London [2023] EWHC 1201 (KB) and the judgment of Mr Justice Eyre at [21] the following questions fall to be considered:
(1) Is what the defendant did in exercise of one of the rights in Articles 10 or 11?
(2) If so, is there an interference by a public authority with that right?
(3) If there is an interference, is it prescribed by law? The relevance of this requirement being that article 10 envisages the right to freedom of expression being subject to such restrictions as are prescribed by law and that article 11 provides that only such restrictions as are prescribed by law shall be placed on the right to freedom of assembly.
(4) If so, is the interference in pursuit of a legitimate aim as set out in paragraph (2) of Article 10 or Article 11?
(5) If so, is the interference ’necessary in a democratic society’ such that a fair balance is struck between the legitimate aim and the requirements of freedom of expression and freedom of assembly?
The issue(s) in this case arguably centre on question 5, whether the prosecution itself is a proportional interference and in answering that question the issue falls in the Defendant’s submission on whether there are “less restrictive or intrusive alternative means available to achieve that aim”, noting [22] of Mr Justice Eyre’s judgment, and the well know principle under the European Convention.
The Defendant submits that the approach taken in this case is akin to a hammer being used to crack a nut, a knee jerk reaction in an effort to prevent protest.
Article 3
The Defendant does not seek to suggest that she is a victim of an act violating her rights per Article 3 of the Convention, however, the State, as much as it is under a duty not to engage in acts that would cause the prohibited behaviour, the Defendant would also highlight the second duty within Article 3, namely the positive duty to take such measures so as to protect victims and/or potential victims, see X and Others v Bulgaria [GC] 2021 at [181].
The Defendant advances that this duty extends so as to obligate the State to take measures within the scope of their powers to avoid the risk of such treatment, noting that the risk ought to be real and immediate.
The Defendant would submit that the risk to individuals, and globally, from climate change is clear, and thus far the State is failing in its obligations to prevent, it being submitted that a failure to take reasonably available measures could have had a real prospect of altering the outcome of mitigating harm, is sufficient to engage the responsibility of the State, see O’Keeffe v Ireland [GC] 2014 at [149].
The prosecution does not therefore violate the Defendant’s rights per Article 3, however, the failure of the State to act, and therefore the failure of the State to discharge its positive duty to prevent, gives rise to the Defendant’s actions so as to justify the same.
Reasonable Excuse
The Court may consider that the submissions under this head are more akin to a defence under the Act, as it raises reasonable excuse.
As much as it is a ‘defence’ it is submitted to be appropriate to consider the issue pre-trial in terms of the legitimacy of the prosecution itself.
The Defendant submits that whether we are facing a climate crisis is not an issue that is in doubt, the plethora of scientific evidence points to climate change and the catastrophic consequences of the same.
It is not the purpose of this case, or indeed this skeleton to seek to prove that climate change is real, and instead the Defendant relies upon the international commitments made by various Governments, including the Government of the UK as a basis to establish that which the Government is seeking to address and the consequences it seeks to prevent.
The UK implemented the core Crimes of the Rome Statute into UK Law by virtue of International Criminal Court Act 2001 and thus the UK has domestic jurisdiction over the same.
The Defendant seeks to argue that the failure of the UK Government to act on climate change, and therefore act to prevent what constitutes or is likely to constitute an ‘other inhumane act’ in accordance with Article 7(1)(k) of the Rome Statute, leads to the Government failing to act in accordance with its customary duty to prevent the commission of such crimes, sometimes characterised as the Responsibility to Protect.1
In particular paragraphs 138 and 139 of that resolution.
"138.Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability."
The question therefore arises that where a state (the UK) fails to act in accordance with its obligations, are the actions of citizens seeking to protect, or at least highlight the issue, where those actions are peaceful and non-violent, and further, are actions that are protected by other international instruments, including but not necessarily limited to the European Convention on Human Rights, properly prosecuted.
The Defendant in the instant case would submit not and that the Prosecution in this case is seeking to criminalise behaviour that is otherwise protected.
Concluding Remarks
For the reasons outlined above, the Defendant would submit that the prosecution ought to be halted at this juncture.
Carl Buckley33 Bedford Row
16 June 2025
- Resolution adopted by the UN General Assembly, 60/1 – 2005 World Summit Outcome