Monsato plc v Tilly [1999] EWCA Civ 3044

Monsanto plc sought an injunction to stop protesters from damaging their genetically modified crops. The protesters claimed the defence of necessity, arguing they acted to prevent environmental harm. The court rejected this defence and upheld the injunction, finding lawful protest alternatives existed.

Facts

The claimant, Monsanto plc, was a company involved in the research and development of genetically modified (GM) crops. They were conducting trial plantings of GM oil seed rape and maize at various farm sites in the UK under licence from the government. The defendants were environmental protesters who were opposed to the development and use of GM crops. Believing the crops posed a serious threat to the environment and public health, the defendants entered Monsanto’s test sites on multiple occasions and uprooted and damaged the plants. Monsanto brought a civil action for trespass to land and goods, seeking damages and an injunction to restrain the defendants from entering their sites and damaging the crops.

Issues

The primary legal issues before the Court of Appeal were:

1. Whether the defendants could rely on the defence of necessity, specifically as articulated in section 3(1) of the Criminal Law Act 1967, which permits the use of reasonable force to prevent a crime. The defendants argued that their actions were necessary to prevent the ‘crime’ of widespread environmental damage which they believed would result from the commercial growing of GM crops.
2. How to balance the claimant’s property rights against the defendants’ right to freedom of expression and protest under Article 10 of the European Convention on Human Rights (ECHR).

Judgment

The Court of Appeal unanimously dismissed the defendants’ appeal and upheld the injunction granted at first instance. Lord Justice Stuart-Smith gave the leading judgment.

The Defence of Necessity

The court conducted a thorough analysis of the defence of necessity and found it inapplicable. Stuart-Smith LJ held that the defence is very narrowly circumscribed and requires a situation of immediate and imminent peril. The perceived threat from GM crops did not meet this threshold. He stated:

In my judgment the defence of necessity, or duress of circumstances, is not available to the defendants in this case for two reasons. First, the peril, which the defendants profess to apprehend, is not of a kind which could in law give rise to the defence and secondly, it is not in any event sufficiently imminent to create the emergency which is a pre-requisite of the defence.

The court reasoned that for the defence to succeed, the defendants would have to show that they were acting to prevent an immediate crime. The alleged ‘crime’ of environmental damage was speculative, not certain, and not imminent. Furthermore, the defence of necessity is only available when the defendant has no lawful alternative course of action. The court found that the protesters had numerous lawful avenues available to them to voice their opposition. Stuart-Smith LJ explained:

…the defendants have a number of other courses open to them to protest against the development of GM crops. They can protest in a lawful manner; they can write to their MPs; they can write to the press; they can distribute leaflets; they can seek to persuade the Government and the relevant minister or the appropriate committee or body which has licensed the tests what they think is wrong about it. These are the proper and lawful democratic means of seeking to achieve an objective in a case like the present.

Since these lawful means of protest were available, the defendants could not justify their trespass and criminal damage by invoking necessity.

Article 10 ECHR – Freedom of Expression

The court also considered the defendants’ argument that the injunction infringed their right to freedom of expression under Article 10. While acknowledging the importance of this right, the court held that it was not absolute. The exercise of freedom of expression must be balanced against the rights of others, including the right to peaceful enjoyment of property. The court held that causing criminal damage was not a legitimate form of protest protected by Article 10. The injunction was deemed a necessary and proportionate measure in a democratic society to protect Monsanto’s property rights from unlawful interference.

Implications

The decision in Monsanto v Tilly is a significant authority that confirms the very narrow scope of the defence of necessity in English law, particularly in the context of direct action and civil disobedience. It establishes that where lawful democratic channels for protest and debate exist, a defendant cannot justify committing a tort or a crime by arguing that their actions were necessary to prevent a greater, albeit speculative, harm. The case serves as a key example of the judiciary’s approach to balancing fundamental rights, affirming that the right to freedom of expression does not provide a licence to damage private property, and that injunctions are a proportionate remedy to prevent such unlawful acts.

Verdict: Appeal dismissed.

Source: Monsato plc v Tilly [1999] EWCA Civ 3044