Second report from the Crown Court – 6th June 2018

It’s official: geckoing is not, repeat *not*, a legal loophole. Mr Justice Males made the point emphatically, implicitly agreeing with STAG co-chair and defendant Paul Brooke that it is a legitimate way for tree campaigners to protest without breaching the injunction.

The judge’s remark was made in response to prosecuting counsel Yaaser Vanderman, towards the end of the second day of hearings in the trial of Mr Brooke, Benoit Compin, Simon Crump and Fran Grace for alleged breaches of the injunction forbidding the intrusion of protesters into safety zones surrounding tree works.

Owen Greenhall, acting for Mr Brooke and Mr Compin, continued the cross-examination of security guard Richard Milligan, who agreed that the principal function of security staff was the physical removal of protesters from the area of a tree felling rather than the infliction of pain: ‘You said that if a person was crying out in pain the first response would be to check that they were okay.’ The aim was to use minimal force and to reduce the risk of injuries.

In his written affidavit Mr Milligan had mentioned guards using a rocking motion to extract protesters rather than a sharp jerk, which had a greater risk of injury. He agreed that if someone was carried out as a ‘dead weight’ then it would be appropriate for four guards each to take hold of a limb. ‘But you wouldn’t punch anyone?’ No. Mr Greenhall then showed the video clip, previously played yesterday, which appeared to show a security guard throwing a punch during a fracas. Mr Milligan had not been involved but had been standing beside the evidence gatherer shooting the video. He said that he could not be sure that the clip showed a punch being thrown.

Mr Greenhall said that one female protester on Meersbrook Park Road (MPR) had been removed from park railings twice. On the second occasion, her cries of pain had led bystanders including Paul Brooke to break through the barriers surrounding the safety zone. Mr Greenhall showed a harrowing video clip of three security guards attempting to remove the woman, one by apparently lifting her up with his shoulder. A voice could be heard shouting to police off camera: ‘Officers, you’re witnessing an assault!’

At this point, Mr Justice Males interrupted proceedings to relay a report passed on to him from a barrister not involved in the case, who had witnessed the apparent intimidation of council officer Paul Billington in the waiting area outside the courtroom. The judge said that the intimidation of a witness about to give evidence was a serious matter and could itself be considered a contempt of court. A short recess was called to deal with this. When the hearing reconvened, Mr Vanderman stated that Mr Billington had not been aware of the report and that the alleged intimidation was nothing more than he was used to. Nevertheless, the judge stated that if the offence was repeated he was prepared to exclude the public from the building; he didn’t want to do this as he believed in open court, but the press were sure to report the matter.

Resuming his cross-examination of Mr Milligan, Mr Greenhall showed further video footage of the removal of the female protester from the MPR railings. He pointed out that the clip showed sharp tugs being used, not a slow rocking motion as Mr Milligan had described in his affidavit. Mr Greenhall also noted that several other security staff, including a female guard, had been standing nearby as the protester was carried away; surely they could have been employed to pick her up bodily rather than dragging her? Mr Milligan replied that he would have said they were placing her on the ground rather than dragging her.

Paul Billington then took the stand. Before admitting him to the courtroom, the judge reminded the public gallery that there must be no audible reactions to his evidence. Anyone who felt unable to comply with this should leave.

Mr Vanderman referred to the decision to fell a tree on Abbeydale Park Rise (APR) that was displacing the kerb by approximately 30mm. Mr Billington said that this was not a decision he had taken (it had been made by his predecessor, Simon Green) but one that he supported. The particular species of tree (Wild Cherry Woodstock) had an expected rate of growth of 10mm per year, so it was likely that any remedial work done on the kerb would have to be repeated in a year or two’s time. Replacing the tree with a similar species but with a slower rate of growth would give the chance of a tree with a long-term future.

Paul Powlesland, acting for Simon Crump and Fran Grace, asked Mr Billington for his definition of a highway safety zone and whether it could be erected for any reason other than to provide a safe working area. Mr Billington said that SCC and Amey’s mistaken understanding of what constituted a safety zone (that it did not include natural boundaries such as walls and park railings) had been cleared up at a previous hearing and that since then they had been adhering to the definition specified in the injunction.

Mr Powlesland drew Mr Billington’s attention to a photograph of a warning sign displayed on MPR and asked him several times if he would agree that it gave an incorrect version of the injunction wording: yes or no? (Mr Justice Males interjected to ask him to keep his voice down.) Mr Billington said that he did not recognise the sign and was not qualified to say whether its message was within the terms of the injunction: ‘If I said yes or no I’d be guessing.’

Mr Powlesland asked if Mr Billington agreed that when Amey staff say people are in breach of the injunction, protesters were within their rights to challenge them over their confusion regarding the injunction. Mr Billington said that was not aware of any confusion. There was some confusion over whether it was tree workers or tree campaigners who were confused. Mr Powlesland said that it was Simon Crump’s case that he had been confused about the extension of a safety zone. Mr Billington said that Dr Crump had been involved in the campaign from the beginning and so ‘the chances of him being confused about anything are amongst the lowest of anything in this case’.

Mr Powlesland referred to a matter discussed in a previous hearing in October, in which he had cross-examined Mr Billington over the contents of an erroneously-worded letter distributed to a number of campaigners standing in Meersbrook Park, outside of safety zones, and whether it could be construed as threatening. Mr Powlesland promised not to go there again, drawing a wry smile from the council officer, but noted that it was an example of why campaigners such as Dr Crump and Fran Grace could not take the word of SCC, Amey or Acorn because of inconsistencies in information previously emanating from them.

Mr Powlesland then referred to Mr Billington’s statement in the original injunction hearing that only 6,000 trees were to be felled. Mr Billington insisted that he been referring only to the Core Investment Period, and that previous as well as subsequent council statements and press releases had made that clear. He had never meant to suggest that 6,000 was the total number to be felled in the entire contract term.

A slide was presented showing clause 6.38 in the Streets Ahead contract specifying 17,500 trees to be felled. Mr Billington said that he could see how the contract could be interpreted to imply a target of that figure but that it was not the case. Bids for the contract had been made on the basis that up to that many trees could be replaced if necessary, without additional cost to the council. This was standard contacting procedure. But no discussions had taken place regarding any such target: ‘It doesn’t exist.’

Mr Billington did not know and could not say how many trees would be felled over the course of the contract but 10,000 was the ‘best guess’. He said that it could be argued that it might be in Amey’s best financial interests to replace less than the maximum figure, and that at some point the council might want to discuss that – ‘but that’s in 20 years’ time’. Mr Powlesland said that citizens of Sheffield wanted to know how such decisions were being made *now*. The council had not released its annual Tree Management Programmes – Mr Billington said he hoped they would be.

Mr Greenhall wanted to discuss the decision made to replace one particular tree, situated between house numbers 22 and 24 on APR. The Independent Tree Panel advice for this tree was as follows: ‘Remove 2 kerbs and replace 2 kerbs with dropper. Narrow footway by 150mm over 15m. Remove and relay 15[m] of stone edging. Proceed with engineering solution and associated work if funds available.’ However the council’s final judgment was to remove and replace it.

Mr Greenhall said that the displaced kerb was not inconveniencing members of the public. Mr Billington noted that the Streets Ahead contract specifies no undue deviation from a straight kerb line, a principle he upheld: ‘As a cyclist, I wouldn’t want *any* deviation.’ He said that he spent a lot of time cycling close to kerbs and wouldn’t want his name against a decision that could cost a human life.

Mr Greenhall said that the ITP had proposed engineering solutions to retain twelve healthy trees on APR and that the same decision had been made for all of them. Following a ‘tree walk’ on APR with Amey representatives, a resident had asked why so many trees were being felled and was told that there was no ‘appetite’ at SCC for the use of engineering solutions and that the council preferred replacement. Mr Billington said that instead of ‘appetite’ he would substitute ‘ability‘, as the ITP recommendations involved, ‘at least in part’, bespoke engineering solutions sitting outside the contract that would require additional funding that was not available: ‘If an exception was made in the case of one tree you would find yourself making them in many cases.’

Mr Greenhall said that a mistake had been made in the decision-making process in consideration of this particular proposal. Mr Billington: ‘I reject that.’

‘This is a highway renewal contract, not a patch-and-mend contract.’

Opening the case for the defence, Mr Powlesland called Simon Crump to the witness stand. He corrected a typographical error in his affidavit, in which a photograph of a warning sign had been mistakenly identified as having been taken on 15 January rather than 16 January.

Mr Vanderman said that he was a committed campaigner. 
Dr Crump: ‘I would say more of a keen amateur.’ 
Mr Vanderman: ‘You say “committed” in your written evidence.’ 
Dr Crump: ‘Oh dear.’ 
Mr Vanderman: ‘You have sat under countless trees and have attempted to frustrate tree felling.’ 
Dr Crump: ‘I don’t accept that. I’ve attempted to delay it.’
Mr Vanderman: ‘Until… what? Someone else comes along.’ 
Dr Crump: ‘No. I want to delay felling so the two parties can get together and negotiate a sensible solution.’
Mr Vanderman: ‘You intend to go on entering safety zones?’
Dr Crump: ‘Absolutely not.’

Mr Vanderman referred to a message Dr Crump had posted on the Facebook page last week in which he said that he did. Dr Crump drew your attention to the inverted commas he had placed around ‘safety zones’: ‘I would caution you not to get excited about it and remind you that I have a PhD in English literature. I choose my words and my punctuation very carefully. I used inverted commas to refer to *fake* safety zones.’ Mr Vanderman noted that the post had soon been deleted from the STAG Facebook page and suggested that Dr Crump had deleted it because he knew it would affect the case. Dr Crump could not be sure whether it was he or the page moderators who had deleted it.

Mr Vanderman referred to the incident involving Dr Crump and Fran Grace on MPR. Dr Crump: ‘It felt to me that we were standing outside of the safety zone and no-one explained to us why we were not. It felt like entrapment – they were trying to get us on something.’ Mr Vanderman said that a trap allows entry but not exit. Mr Justice Males said that there were two senses of ‘trap’: to be stopped from leaving or to be tricked into breaching the injunction. Which sense did he mean? ‘The second one.’

Mr Vanderman showed video footage of the incident and said that Dr Crump and Ms Grace had been asked to leave a total of eight times. Dr Crump said that he did not count them – the experience had been quite stressful. Mr Vanderman: ‘You could have left the disputed area at any point during those five minutes.’ He pointed out that Dr Crump had been talking to Calvin Payne on the other side of the fence, who had not been ‘drawn in’ to the area because ‘he knew a safety zone was being erected’. Mr Powlesland’s objection to this speculation was upheld by the judge.

Dr Crump said that he and other campaigners had been lied to continually by SCC and Amey; ‘they should get the wording of the injunction straight and stick to it.’ Dr Crump said he had been genuinely confused as to what was happening. ‘It was the first time they had tried this particular tactic. I also believed it was not a proper safety zone – you can hear me saying that.’ He had been ‘confused by the lies they have told us over weeks and months – they will tell us anything.’

Mr Vanderman: ‘Not once did you ask the question why the safety zone was being enlarged.’
Dr Crump: ‘I was hoping they would tell me.’

Mr Vanderman referred to the later incident on MPR: ‘I was standing near the railing with my arm around the railing, some distance from the tree.’ Mr Vanderman says that Darren Butt had asked him to leave: ‘Because it wasn’t a complete safety zone, I refused.’ Two other campaigners who had linked arms with him decided to leave the zone but he stayed. He denied having prevented the erection of barriers, which could have been placed in front of him as they had been ‘on many previous occasions’. Mr Vanderman asked why he was holding onto the railings: ‘Because people are removed, sometimes violently.’ This had happened the same day further down the street.

Mr Vanderman: ‘You knew they wouldn’t fell the tree with you standing there.’
Dr Crump: ‘No, there was a car there. It was part of the deal’

Mr Justice Males refers to the undertaking that Dr Crump had signed not to participate in direct action. Dr Crump: ‘Which is very similar to the injunction. I signed it in good faith and take it seriously. As far as I am concerned I have not broken the injunction.’

Fran Grace (who will be 68 on Friday) next took the stand. Mr Vanderman pointed out that she is a former primary-school teacher and asked if she had any qualifications in arboriculture or health and safety. She had not. Ms Grace has been involved in the campaign for about three years but stated in her written affidavit that she had become more involved after the Rustlings Road incident in November 2016. What did this mean?

Ms Grace: ‘I decided not to be an armchair activist and to become more active. I felt a lot more strongly about the issue and that I wanted to be involved.’

Mr Vanderman: ‘Including attending felling sites?’

Ms Grace: ‘Yes.’

Mr Vanderman said that ‘geckoing’ was an ‘alleged loophole used to prevent or delay felling without breaching the injunction’.

Mr Vanderman suggested to Ms Grace that the reason she stayed with Dr Crump in the ‘disputed area on MPR was because she was ‘upset’.

Ms Grace: ‘That’s not what I said. Several trees were in danger of being felled. […] I did what I usually do: take photos, talk to other campaigners, be a witness. […] I felt trapped because I had no intention of being inside a barrier – they built the barriers around me. I don’t know why they did that.’

Mr Vanderman: ‘Is it your defence that the reason for the safety zone being extended was to trap you or to get you to move away?’

Ms Grace: ‘Entrapment.’

Ms Grace accepted that she and Dr Crump had been asked to leave eight times.

Mr Vanderman: ‘The reason you stayed was because you knew they wouldn’t fell the trees with you standing there.’

Ms Grace: ‘That’s not the reason. I was genuinely confused about why they had to enlarge the safety zone when there was already a safety zone. I didn’t know if there was a legitimate reason for building the barriers around us – it didn’t make sense. I was confused and bewildered. I hadn’t gone in, they had put me in.’

Mr Vanderman: ‘I’m putting it to you that you wanted to prevent the tree being felled.’

Ms Grace: ‘If I’d wanted to prevent the tree being felled I’d have taken direct action. But I didn’t, I just stood there.’

Mr Vanderman: ‘You didn’t ask why the barriers were put up?’

Ms Grace: ‘No, but I’m not sure if I’d have believed what they said anyway.’

Justice Males: ‘Was the level of distrust such that you would not have believed anything they said?’

Ms Grace: ‘That’s precisely the point. The level of distrust between us was already so high.’

Mr Vanderman: ‘You asked about the wording of the injunction?’

Ms Grace: ‘I was asking about the legitimacy of what they were doing – whether there was a valid reason for extending the safety zone.’

Ms Grace said that on the day she had not heard what one of the security guards had said to her, as played back on a video of the incident: ‘I don’t hear very well.’ (Ms Grace had worn a hearing loop throughout the two-day hearing, including during her time on the stand, and asked for a number of Mr Vanderman’s questions to be repeated.)

In the video clip, Ms Grace was heard asking to see ‘the *real* injunction’. Mr Vanderman asked if she knew what the injunction said: ‘Yes, but I also knew that there had been at least one *other* injunction posted [in warning signs] that was incorrect.’

Paul Brooke is called to the witness stand. As he passed Ms Grace they touched hands briefly in a gesture of… solidarity? Affirming his written affidavit, he asks for a single word in his statement to be corrected: ‘intention’ should be ‘attention’.

Mr Greenhall asked Mr Brooke approximately how many other felling sites he had attended besides the one in this case: ‘I can’t be precise – in the region of approximately 40 occasions.’

Mr Greenhall: ‘Have you ever prevented a tree being felled?’

Mr Brooke: ‘Not to my knowledge.’ He had not entered a safety zone since the granting of the injunction, after signing an undertaking.

Mr Greenhall referred to an incident in which an arborist had allegedly spat at him. Mr Brooke confirmed that this was Jason Wignell, who had been called a witness for the prosecution yesterday. ‘I made a complaint to the police and have not heard that the case is closed.’ He had not been aware that Mr Wignell was to give evidence to the court before yesterday.

Mr Brooke said that on the day of the incident in question, 22 January, he had a brief conversation with Calvin Payne after arriving on MPR, in which he was told that a protester had been beaten up. He had since learned that this incident was the one in the video appearing to show an uppercut. Mr Greenhall played a video of a female protester being prised away from railings by security guards and screaming in pain. Mr Brooke had not witnessed this incident directly but later was shown the video clip by another campaigner, Alan Simpson, on his telephone.

Mr Greenhall: ‘Did you notice anything?’

Mr Brooke (with voice breaking slightly): ‘I noticed a woman being assaulted.’

Another video clip was shown of a female protester being pulled away from railings, with the sound of screams and cries of ‘Don’t hurt her!’

Mr Brooke said that during this incident he was standing about eight metres away to one side, and about a metre or two behind the Heras fencing. ‘I heard the woman scream and thought at the time that the woman was being assaulted again. At one point a security guard stood on or kicked the woman. I assumed she was in pain and being assaulted again.’

A lengthy video clip was shown depicting the fencing collapsing from the weight of the campaigners behind it, including Mr Brooke pushing it, followed by a surge of people into the safety zone, again including Mr Brooke, who swore at a security guard. After a moment he retreated back outside of the zone, kicking the now-fallen fencing. The video continued, showing other protesters chanting and forming a protective circle around a threatened tree.

Mr Greenhall asked his intentions. Mr Brooke: ‘To distract their attention and prevent the woman from being assaulted.’

Mr Vanderman said that Mr Brooke is a resident of MPR and walks past these trees every day: ‘It’s natural that these trees are particularly dear to you.’ Referring to the incidents shown on the videos, he asked if Mr Brooke was aware of any complaints being made by the victim to the police. Mr Brooke said that she could not complain because she did not want to identify herself. Other s had made complaints on her behalf but they had not been taken seriously by police because they had not been made by the victim.

When Mr Vanderman asked if he knew who the victim was, Mr Brooke addressed the judge, saying that he would prefer not to incriminate another person. Mr Justice Males said this was his right, though it might affect how he assessed Mr Brooke’s evidence. When asked again by Mr Vanderman, Mr Brooke said that he did know the victim; Mr Vanderman then asked her name, and he declined to answer. Mr Justice Males queried the point of asking, and Mr Brooke again insisted that he would not wish potentially to incriminate someone.

Mr Vanderman asked why Mr Brooke had not asked police officers on the scene to intervene. Mr Brooke said that they were too far away, and earlier in the day they had told him that they there only to observe. He noted that since the occasion under discussion police had changed their tactics and now observed more closely, standing within a few feet of protester removals. Mr Vanderman said that he knew police officers did not consider that unreasonable force was being used. Mr Brooke: ‘I knew they weren’t acting.’

Mr Brooke denied that he considered *any* use of force was unreasonable and said that he what he thought about the actions of security staff in general was immaterial: ‘I believed a woman was being assaulted *at that time*’.

Mr Vanderman suggested that he was feeling angry during the incident. Mr Brooke said that he had felt a mixture of emotions, including anger, and that it had been ‘a traumatic experience for me – it was very unlike *me*.’ Mr Vanderman said that he not entered the safety zone because he believed a woman was being assaulted but because he was angry at a tree being felled on his street. Mr Brooke: ‘Which tree, this one or the fifth?’ He said that he had been at 15 or 20 tree fellings and had not reacted in the same way.

Mr Powlesland asked about ‘geckoing’. Mr Brooke said it had been ‘referred to earlier as a “loophole”. It is not a loophole! People stand by a wall or railing so that the barriers have to be erected in front of them. Nine times out of ten, that is what happens. […] Geckoing is not about exploiting a loophole, it’s about asserting a legal right of protest.’

Mr Brooke said that arborists would not specify what size a safety zone has to be because they keep changing it as it suits them – ‘one metre, two metres. Not once to my knowledge have they ever approached a householder to ask permission or taken them through the courts to cut branches oversailing their property. What they will do is turn up at five in the morning when no-one is looking.’

Benoit Compin has elected not to testify and will stand by his written affidavit. The full video, lasting around four minutes, was played of his performance of a poem inside a safety zone where work had already ceased. Security guards are shown asking him to leave, and he argues and tries to continue before agreeing to leave.

Mr Vanderman said that he had wanted to cross-examine Mr Compin about contradictions in his statement but would instead make a list of questions to pass on to his barrister, Mr Greenhall.

Submissions

Commencing his closing submissions, Mr Vanderman stated that a ‘safety zone’ was not defined as per the injunction in the undertaking that Simon Crump had signed because the injunction had been issued after the undertaking was signed. He argued that the ‘natural meaning’ on the term should apply, which included the notion that a safety zone extended to boundary walls and railings.

Concerning the incident on 18 December, Mr Vanderman said there could be no dispute that Dr Crump had remained in a safety zone, as he was within barriers erected around a tree. He said that this is sufficient to show that he and Fran Grace were in breach of the injunction. They could not have been trapped if they had been given the option to leave, which they could have done at any time.

Mr Vanderman referred to the evidence given by security guard Ricky Learman, that there is a default practice of setting up a safety zone around a tree to be felled before the lead arborist determined how big it needed to be. He said Jason Wignell’s evidence confirmed that a safety zone was only ever extended for safety purposes, including the size of the tree and the number of staff and vehicles involved. Mr Vanderman said that Dr Crump and Ms Grace had not asked why the zone was being extended, which would have been the obvious thing to do.

Mr Vanderman stated that Dr Crump had also said the zone was not complete. Mr Justice Males corrected him: he is heard in the video evidence saying that it was ‘not a proper zone’, but he does not explain in the video why it was not (such as that it was incomplete).

Mr Vanderman stated that Dr Crump did not want to leave the area in which he was standing because he knew felling could not take place with him there. He accepted that he had been standing there to delay the felling. In the incident on 16 January, Mr Vanderman said that there could be no question that he prevented safety barriers being erected flush against the railings. It could not be to prevent himself from being removed because there were no security staff there at the time. The video of him standing there alone lasted around an hour and a half. The size of the tree meant that the barriers had to be up against the railings, according to Darren Butt’s evidence, and this was a matter of expert opinion Dr Crump was not qualified to speak about. The only possible reason for Dr Crump to be standing there was to delay the felling.

Mr Justice Males asked: ‘What limit there was on where Amey can put a safety zone? Is there a good-faith test, or a need for a reasonable belief, or do they have to be right?’ Mr Vanderman stated that it was a matter of rationality.

Mr Vanderman stated that, to the extent that there were any doubts as to his intentions, they were dismissed by his Facebook post. It was very relevant that he had deleted it. He says that he can’t remember whether it was deleted by administrators or himself, but it was only last week.

Mr Justice Males said that it would be a bit odd if the regime was different for those who had given an undertaking and those who had not – it would be disorderly if some people could be in one place and not others. He said that it could be argued that the definition of a safety zone in the injunction did not apply to the undertaking because the injunction didn’t exist when the undertaking were signed.

Mr Vanderman said that Fran Grace attended felling sites two or three times a week so she clearly knew what the injunction said. ‘I put it to her that geckoing was a loophole…’. Mr Justice Males interrupted to say that ‘It’s not a loophole, is it?’ It was a question of what the injunction did or did not allow. Mr Vanderman said Ms Grace was asked to read an injunction notice, but accepted that she may not have heard the instruction.

Mr Vanderman said that Benoit Compin accepted that he had entered a safety zone on 10 January and remained for three and a half minutes.

The hearing continues on 7th June.

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