Balancing Property Rights and Freedom of Expression: Shell UK Ltd v Stichting Greenpeace Council and Another [2020] ScotCS CSOH_7

Introduction

The case of Shell UK Ltd v Stichting Greenpeace Council and Another ([2020] ScotCS CSOH_7) was adjudicated in the Scottish Court of Session’s Outer House on January 15, 2020. This legal confrontation centered on Shell UK Limited’s attempts to decommission four offshore Brent oil field installations—Brent Alpha, Bravo, Charlie, and Delta—and Greenpeace's direct action protests against Shell's decommissioning methods. The primary legal issue revolved around whether Shell could obtain an interim interdict preventing Greenpeace from approaching or boarding these installations, balancing Shell's property and safety interests against Greenpeace's rights to freedom of expression and assembly under the European Convention on Human Rights (ECHR) Articles 10 and 11.

Summary of the Judgment

Shell UK Limited sought an interim interdict to bar Greenpeace and its associates from approaching within 500 meters of or boarding the Brent offshore installations. This motion was necessitated by Greenpeace's previous unauthorized boarding and occupation of these installations in October 2019, during which protesters displayed banners and caused minor damage by painting "Toxic Waste" on one of the installation legs. The court, presided over by Lady Carmichael, granted the interim interdict, finding that Shell had established a prima facie case. The court emphasized the significance of property rights and safety concerns over the protesters' freedom of expression in the specific context of privately owned and operated offshore installations.

Analysis

Precedents Cited

The judgment extensively referenced both Scottish and English case law to contextualize the balance between property rights and freedom of expression. Key cases include:

• Shell v McGillivray (1991 SLT 667): Established that civil law remedies are available for unlawful occupation of both heritable and moveable property.
• Phestos Shipping v Kurmiawan (1983 SC 185): Reinforced the applicability of civil remedies for unlawful occupation of non-heritable property.
• Appleby v United Kingdom (2003) 37 EHRR 38: Explored the extent of freedom of expression on privately owned property, concluding that such rights do not grant unlimited access or trespass licenses.
• SOAS v Persons Unknown (2010): Demonstrated limitations of ECHR protections against private property owners.
• University of Sussex v Persons Unknown (2013) EWHC 862 (Ch): Highlighted that protest actions interfering with property rights are not justified under ECHR Articles 10 and 11.
• Manchester Ship Canal Developments Ltd v Persons Unknown (2014): Emphasized the supremacy of property rights over protest rights in cases of prolonged occupation and interference.

These cases collectively underscore the judiciary's stance that property rights, especially in private and sensitive contexts like offshore installations, hold substantial weight against public protests that infringe upon those rights.

Legal Reasoning

Lady Carmichael's judgment meticulously balanced the defendants' (Greenpeace) rights to freedom of expression and assembly with the plaintiffs' (Shell) rights to property and safety. The court acknowledged that while Articles 10 and 11 of the ECHR protect the right to free speech and peaceful assembly, these rights are not absolute and can be lawfully restricted to protect the rights and safety of others.

The court reasoned that allowing protesters to board and occupy the Brent installations would pose significant safety risks, disrupt decommissioning operations, and infringe upon Shell's property rights. Given that the installations are in a hazardous marine environment and that Greenpeace's actions had previously caused disruptions and minor damages, the court deemed the interference with ECHR rights proportionate and necessary to safeguard legitimate interests.

Additionally, the court emphasized that Greenpeace had alternative venues and methods to express their opposition without trespassing or compromising safety. This availability of alternative protest methods further justified the imposition of the interdict.

In addressing constitutional and international law considerations, the court referred to UNCLOS provisions and reiterated that domestic statutory controls on safety zones around offshore installations were within Shell's rights and the state's authority, thereby reinforcing the legality of the interdict.

Impact

This judgment sets a significant precedent in Scottish jurisprudence by clarifying the boundaries between corporate property rights and environmental activism. It reinforces the principle that while freedom of expression is fundamental, it must be exercised within the confines of the law, particularly when public safety and property rights are at stake.

Future cases involving protests on private or sensitive properties, especially in industrial or hazardous sectors, will likely reference this judgment to justify restrictions that balance protest rights with legitimate business and safety concerns. It may also influence legislative considerations regarding the extent of permissible protest activities near critical infrastructure.

Complex Concepts Simplified

Interim Interdict

An interim interdict is a temporary court order that restricts an action until a final decision is made in the case. In this context, Shell sought an interim interdict to prevent Greenpeace from approaching or boarding the offshore installations during the decommissioning process.

Balancing Rights

The court must weigh competing interests—here, between Greenpeace's right to protest (freedom of expression and assembly) and Shell's property and safety rights. This involves assessing which rights take precedence in the given circumstances.

Prima Facie Case

A prima facie case means that the evidence presented is sufficient to establish a fact or raise a presumption unless disproved. Shell demonstrated sufficient grounds to support their request for the interdict.

OSPAR Convention

The Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) governs environmental protection and cooperation among signatory nations. Shell's decommissioning plans and the associated environmental impacts were regulated under this convention.

Conclusion

The judgment in Shell UK Ltd v Stichting Greenpeace Council and Another reaffirms the judiciary's role in mediating between fundamental human rights and legitimate business interests. By granting the interim interdict, the court underscored the precedence of property rights and safety over protest activities that infringe upon these rights, especially in contexts involving hazardous environments and sensitive operations. This case serves as a critical reference point for future legal disputes where the exercise of protest rights intersects with property and safety considerations.