These are Dickensian times so why not revive a few Victorian laws to deal with the indigent, the pauper and the malcontent?
Thus two men caught taking discarded food from a supermarket skip were charged under an obscure section of the 1824 Vagrancy Act, after being discovered in “an enclosed area, namely Iceland [supermarket], for an unlawful purpose, namely stealing food”.
The charge was later (sensibly) dropped, but now anti-fracking protesters have been successfully prosecuted for another obscure Victorian offence: “besetting” the Cuadrilla test drilling site near Balcombe, West Sussex. Natalie Hynde and Simon Medhurst had superglued themselves to a gate and held up the entry of lorries for two hours.
So what is “besetting” – or “watching and besetting” as the offence is properly termed? And could it become a significant legal weapon in the armoury against protest? The answer to the second question seems to be yes, since the law has also been used against pensioners and other protesters objecting to the cutting down of trees in Sheffield.
The crucial point about the law is that it involves successfully preventing someone going about their legal work – which, of course, in the anti-fracking context (and tree-felling), is exactly what protesters are attempting to do.
The law is now found in Section 241 of the Trade Union and Labour Relations (Consolidation) Act 1992 but its origin is in the liberalisation of trades union law in the 19thcentury.
The Conspiracy, and Protection of Property Act 1875, repealed in 1992, gave certain immunities to trades unions in trade disputes against conspiracy charges and allowed peaceful picketing. On the other hand “watching and besetting” was to remain illegal. Thus it says at Section 7:
“Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, wrongfully and without legal authority,—
(4) Watches or besets the house or other place where such, other person resides, or works, or carries on business, or happens to be, or the approach to such house or place”
is guilty of an offence, adding, however: “Attending at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section.”
Section 7 also contains reference to intimidation, persistent following, and hiding the tools or clothing of a worker. So the protection was intended for so-called “scabs” who continued to work through a trade dispute, and the wording remains in Section 241 of the 1992 Act – though not the exemption for “attending at or near the house or place of work … to obtain or communicate information”.
Section 7(4) was little used before the 1983 miners’ strike, during which there were 643 besetting charges, mostly for watching and besetting miners’ homes rather than coal mines.
DPP v Fidler
Although born in the context of trade disputes, the law has been directed in recent years to controlling protesters, particularly attempts to get employees to abandon their work. The last reported case under the old act, DPP v Fidler  1 WLR 91, involved anti-abortion demonstrators accused of “watching and besetting” a clinic “with a view to preventing a person from doing an act which they had a legal right to do”.
The case against the protesters failed on the basis that “besetting” must be successful in preventing work being done to constitute an offence. So: “there was no evidence that anyone at the clinic was either prevented, or likely to be prevented, or was intended to be prevented from performing or undergoing an abortion in the strict sense of being rendered unable to do so”. Attempts to get people to halt their work by persuasion or even abuse did not constitute besetting.
Seeking to persuade is not the same as compelling and compulsion seems to be a necessary ingredient of the offence. So:
“The purpose of the anti-abortion group in watching and besetting the clinic was to stop abortions being carried out there but the means were confined to verbal abuse and shocking reminders of the physical implications of abortion; physical force was neither used nor threatened.”
This is an important protection – but it did not help the anti-fracking protesters who did indeed stop workers entering the site to work. There was evidence that Medhurst had said: “Good result. Looks like we managed to delay Cuadrilla for two hours.”
So District Judge William Ashworth said: “I’m sure that you did beset, in the true meaning of the word, the Cuadrilla site by locking yourselves around the gate and thereby controlling access to the site.”
Meaning of ‘besetting’
Ashworth is being perhaps a little disingenuous in saying the protesters behaviour was besetting in its “true meaning”. The true meaning is “to trouble or harass” and “to surround and attack on all sides”, and it looks as if the legislation originally intended such meanings since it finds no reason to define “besetting and watching”. Individuals attaching themselves to the gates would not seem to fit the “true” definition nor the general circumstances of earlier cases. The definition has been subtly moved to mean “controlling access to a site”.
This was how it was described in a Scottish case, Galt v Philp and others  IRLR 156. This involved workers in dispute who entered a laboratory to stage a work-in and prevent doctors entering. The issue was whether “besetting” could include control of a premises from within (ie not “surrounding” it according to the dictionary definition). Yes, said appeal judges:
“The mischief to which this part of the statute is directed is action designed to prevent persons from going into or coming out of a relevant place and it would be contrary to common sense to hold that control of access or egress from a position immediately outside the main door of a building is within the ambit of s.7 whereas the exercise of the same control from a position immediately on the inner side of the main door is not.”
So “watching and besetting” has lost its literal meaning even though the original cases seemed to be about how far, beyond a picket line, groups of workers could congregate to prevent work going on. The law is now a law about an outcome rather than an action – if the accused successfully prevents work going on, then that is “watching and besetting” even though the legislation does not define an outcome. It does describe the intention of besetting as “with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do etc”. But the distinction between seeking to compel and seeking to persuade is likely to be a difficult one to make.
Could successful persuasion also count as “besetting”, even if the targets of the persuasion decided to desist from work voluntarily after considering what the protesters had put to them. Lawful pickets successfully persuading a lorry driver with a crucial delivery to turn around would seem to have shown the elements of the offence as interpreted by the case law. How could the pickets prove they had persuaded the driver rather than compelled? This seems to be a dangerous anomaly – that a legal act might suddenly become illegal as a result of the actions of the target worker.
In the anti-abortion case the persuasion did not work so, apparently, there was no besetting – even though on a literal reading the protesters did congregate “with a view to compel” a cessation of work.
It may be that a more literal definition of besetting could form a defence if protesters don’t actually gain control of the premises they are “besetting” sufficient to exclude workers from them. In an Australian case, Victoria Police v Anderson & Ors (2012) Vpol v Anderson & Ors – Magistrates’ Court of Victoria pdf for example pro-Palestinians demonstrated outside a cafe, but the magistrate decided they had not surrounded it so failed strictly to “beset” it”. Thus: “they did not surround the premises with hostile intent or demeanour nor did their actions obstruct, hinder or impede any member of the public who wished to enter, use or leave Max Brenner’s chocolate bar”. Again actual success at excluding people seems to be crucial but also a suggestion that, say, workers would have no other means of entry. Would blocking one entrance when there is another round the back be regarded as besetting? Arguably not.
From trade disputes to political protests
As noted above, the besetting law had its origins in laws to regulate trades union behaviour but a 1995 case, DPP v Todd,  Crim LR 344, decisively rejected the notion that it was limited to trade disputes. Here the issue was a road protest in which Todd climbed a crane and refused to come down.
The Divisional Court found that the S. 241 law was derived from Criminal Law Amendment (Violence etc) Act 1871, which was not specifically to do with trade disputes, so the new version of the law could be used in protests. “The provision was not to be artificially confined in its application to cases involving industrial action.” This makes the law very widely applicable – perhaps too much so, as the CLR commentator notes: “The Trade Union and Labour Relations Act is a funny place in which to find a general criminal offence such as Section 241 is held to create. A man who persistently follows a woman from place to place with a view to compelling her to begin or resume a relationship with him would commit an offence under the section.”
From the prosecutors’ point of view it also has the advantage that obstruction of the highway need not be shown nor threatening or abusive language or behaviour (contrary to sections 5(1)(a) and 6 of the Public Order Act 1986”).
So the law on besetting is a slippery creature that was:
• pretty clearly intended to regulate trades union disputes but has come to be used for protests in general;
• intended (in the context of the rest of s.7) to prevent workers stopping others working but could now, it would seem, be used for compelling any action;
• intended to be self explanatory in terms of the action and intent of the action and has now become loaded with new meaning – possibly amounting to “successfully preventing someone doing something by means other than illegal force”. This can include physical prevention as in the anti-fracking protest of Hynde and Medhurst, but also a sit-in or, potentially, lying in front of heavy plant – persuasion or compulsion? It may also include successful persuasion short of intimidation (covered elsewhere in Section 7/Section 241 TULR(C)A).
So the answer to the question “could it become a significant legal weapon in the armoury against protest?” must be yes. It is a wide-reaching offence for cases where there is no violence, obstruction of highways or breach of the peace. The penalty for besetting is also quite high, up to six months in jail. It is a summary offence, triable in front of magistrates who are less likely than a jury to accept defences such as: “Our action was to prevent a greater act of unlawfulness” (a defence run in the anti-fracking case). See also the note below which confirms it is far too useful a provision not to be used in these turbulent times – for it is in effect a law against peaceful protest.
The Hynde/Medhurst case was liveblogged here
Note: There is more background on besetting in this piece Old Law, New Threat. In particular the barrister in the case, Srikantharajah Nereshraaj, says he is concerned that the convictions might embolden the police to start charging this offence more routinely. “The danger is that unlike offences, such as obstructing the highway, for which the maximum penalty is a fine, this offence carries a maximum penalty of six months imprisonment.” Additionally arrests under Section 241 “might be a mechanism for the police and the Crown Prosecution Service to ask for the imposition of more onerous bail conditions on protesters arrested/charged with the offence”. These could include exclusions from protest zones, which might have been regarded as disproportionate if imposed for less serious offences such as obstruction of the highway.
From DPP v Fidler
“Nolan LJ said that the prosecution argued that they did not have to prove compulsion but only watching and besetting ‘with a view to compulsion’. If that were right then the conclusion for which the prosecution contended was that the purpose of the defendants, prima facie at least, was not merely to dissuade others from performing or undergoing abortion but to compel them to abstain. In his lordship’s judgment that went too far. The purpose of the anti-abortion group in watching and besetting the clinic had been to stop abortions from being carried out, but the means employed to implement that purpose had been confined to verbal abuse and reproach. Physical force had been neither used nor threatened. The justices had been right to find that the purpose had been one of dissuasion rather than one of compulsion.
Trade Union and Labour Relations (Consolidation) Act 1992
S.241 Intimidation or annoyance by violence or otherwise.
(1) A person commits an offence who, with a view to compelling another person to abstain from doing or to do any act which that person has a legal right to do or abstain from doing, wrongfully and without legal authority—
(a) uses violence to or intimidates that person or his [F1spouse or civil partner]F1 or children, or injures his property,
(b) persistently follows that person about from place to place,
(c) hides any tools, clothes or other property owned or used by that person, or deprives him of or hinders him in the use thereof,
(d) watches or besets the house or other place where that person resides, works, carries on business or happens to be, or the approach to any such house or place, or
(e) follows that person with two or more other persons in a disorderly manner in or through any street or road.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale, or both.
Vagrancy act 1824 (re “skipping” case)
Section 4: Persons committing certain offences to be deemed rogues and vagabonds. Every person committing any of the offences herein-before mentioned, after having been convicted as an idle and disorderly person; every person pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of his Majesty’s subjects; every person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon, not having any visible means of subsistence and not giving a good account of himself or herself; every person wilfully exposing to view, in any street, road, highway, or public place, any obscene print, picture, or other indecent exhibition]; every person wilfully openly, lewdly, and obscenely exposing his person in any street, road, or public highway, or in the view thereof, or in any place of public resort, with intent to insult any female; every person wandering abroad, and endeavouring by the exposure of wounds or deformities to obtain or gather alms; every person going about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind, under any false or fraudulent pretence . . . every person being found in or upon any dwelling house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose; every suspected person or reputed thief, frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or warehouse near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, or any highway or any place adjacent to a street or highway; with intent to commit an arrestable offence; and every person apprehended as an idle and disorderly person, and violently resisting any constable, or other peace officer so apprehending him or her, and being subsequently convicted of the offence for which he or she shall have been so apprehended; shall be deemed a rogue and vagabond, within the true intent and meaning of this Act and , subject to section 70 of The Criminal Justice Act 1982, it shall be lawful for any justice of the peace to commit such offender (being thereof convicted before him by the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses,) to the house of correction, . . . for any time not exceeding three calendar months.