Sheffield Council pressured police to arrest more tree-felling protesters - and paid barrister to consider legal action against force

Earlier this week, an official inquiry by Sir Mark Lowcock ruled the council had misled the public and the courts over its strategy to replace half of the city’s street trees with saplings as part of a £2bn highways contract.

The programme of work to remove 17,500 trees was put on hold in March 2018 in the face of increasing protests at a stage when around 5,500 trees - many of them healthy - had been chopped down.

A response to a Freedom of Information request by tree campaigner Justin Buxton shared with this newspaper reveals that in late 2017 the council commissioned an external barrister to draw up a report setting out potential legal options for enforcing a civil injunction designed to stop protesters preventing felling by standing directly under threatened trees.

They had sought the injunction after earlier in the year the police said no further arrests would be made under trade union legislation following 14 cases deploying the rarely-used law being dropped by the CPS.

The legal options given by the barrister included the council threatening a judicial review against the police.

Then chief executive John Mothersole gave evidence to the inquiry last year in which he said he had immediately dismissed the option when it was put to him. But Mr Mothersole's evidence did not mention an external barrister had been commissioned to provide an opinion about the idea.

When asked by Sir Mark about the potential judicial review, Mr Mothersole said: “I think there is a difference between possibilities and options.

“I think someone in the legal team floated [the idea]. I think there was some disquiet in the council that South Yorkshire Police was giving us less attention than they had previously.

“Some of the legal team floated that you have the right to ‘JR’ the police. My response was get over it, we are not doing that. I don’t think it even reached the lower hills of option.”

Mr Buxton submitted the FoI to the council in October 2022 the day after Mr Mothersole’s evidence to the inquiry about the issue.

The council initially claimed it had “no record of this idea” but after Mr Buxton requested an internal review of that decision, the council eventually accepted his complaint and admitted last week – just days before Sir Mark’s inquiry report was published – that the initial search for information “was not comprehensive”.

The note they then released from an unnamed barrister states that after a High Court injunction was granted in August 2017 against demonstrators, protesters had continued to enter safety zones and prevent felling work.

The legal note said “at least one” of two extra steps “must be taken”; using “reasonable force” to remove demonstrators and “urging the police to arrest Unknown Protestors and, if that fails, sending a pre-action protocol letter to the police threatening a judicial review of their decision not to arrest”.

The note added: “We consider it essential that the council steps up its communications with the police and urges the police to make arrests. If necessary, the Council should threaten to bring judicial review proceeding against the Police.

“The council should urge upon the police, in no uncertain terms, that it must take action and that failure to do [so] is an unlawful abdication of its duties and powers. In the event that the police refuses to take action, the council should prepare and serve a pre-action protocol letter. This would inform the police that the Council intends to bring judicial review proceedings against it unless action is taken.”

The advice added that while it was “very unlikely” a court would order the police to make arrests, “it is hoped that the threat of a judicial review, and even bringing the judicial review itself to obtain a declaration, would encourage the police to take action”.

Sir Mark’s inquiry said the barristers’ letter illustrated “how long the council sought to put pressure on the police” following previous attempts in earlier 2017 before the injunction was granted.

After the police had stopped making arrests of tree protesters in February 2017 using legislation under the Trade Union and Labour Relations Act, the council wrote to the police in March to encourage the use of the Highways Act to make arrests. The police had responded by saying that the idea was “most unsuitable”.

The inquiry also revealed that in December 2017, a legal firm representing contractor Amey - who themselves were being put under pressure by the council to continue the felling programme in line with contractual requirements - also wrote to the police setting out their arguments for a greater police presence and stronger action at protests and said that “we consider that it would be unlawful for SYP to fail to take action”.

The inquiry said SYP replied to say arrests were a matter for the police and the letter had been “unhelpful and not in the spirit of partnership working”.

But in January 2018, following clashes between private security guards hired by Amey and protesters they were forcibly removing, SYP did draw up Operation Quito - a new approach that resulted in dozens of officers attending felling protests on a daily basis from February and multiple arrests being made.

As media and public criticism grew of the council and police’s approach to the issue, the inquiry revealed that at an internal meeting, “the police argued that the situation had escalated too far, the council should do more to de-escalate the situation and reduce the reliance on police time and resources”.

It added: “The police had concerns over the costs of policing protests and had come under fire in the media. They wanted to scale back their involvement. The Council disagreed and refused to sign a joint statement of intent (also referred to as a memorandum of understanding) with the police.”

However, the work was ultimately halted in late March 2018.

The inquiry found that the police had been put in a “difficult position”, had “rightly resisted” pressure from the council and Amey and “plotted a clear route through the dispute”.

It ruled: “Ultimately, the inquiry’s view is that the police were put in an invidious position because it took too long for the council to adopt an approach which facilitated a calming of the dispute.”

Over the course of the dispute, 41 arrests were made with the majority resulting in no further action being taken.

When asked by The Yorkshire Post about the cost of commissioning a barrister’s opinion on the possibility of a judicial review, Sheffield Council did not respond directly to the question. The FoI response to Mr Buxton said there had been “no abnormal cost”.

But they did provide a joint statement by chief executive Kate Josephs and council leader Terry Fox.

It said: “It is clear from the report that the behaviour of Sheffield City Council was wrong. We owe apologies to both individuals and our partner organisations, including the police.

“The report is detailed, comprehensive and authoritative and over 221 pages it spells out what happened, why it happened and where different decisions could and should have been taken. It also spells out the harms that were suffered as a result of the council’s actions for campaigners, communities and for our own staff, as well as the wider harms to the city’s reputation and standing.

“We have committed to fulfilling all Sir Mark’s 11 recommendations, and now need to take some time to fully understand the conclusions and the work that has to be done. This includes understanding fully and learning from some of the uncomfortable truths that have been revealed in this report. We will only do this by working together with our partners, including the campaigners, to fully implement the recommendations.”

A spokesperson for South Yorkshire Police said: “We fully accept the findings of the independent inquiry and believe the report achieved its aim of supporting truth and reconciliation – an aim which we support wholeheartedly. On this basis, we will not provide further commentary on evidence provided to the inquiry or seek to comment on specific findings but we do want to reassure the public that South Yorkshire Police is and will remain operationally independent.”

Police commissioner Alan Billings said: “I welcome this report and its findings. I would also like to thank Sir Mark Lowcock and his team for his thorough and detailed inquiry into what was a long and painful dispute for all those involved.

“The findings and conclusions support the view that I shared at the time – that this was a political issue that needed a political resolution. The police should not have been involved or drawn into what was essentially a political matter involving Sheffield City Council and its residents.

“South Yorkshire Police were unnecessarily put in a very difficult position. During this time they maintained a dignified response and upheld their responsibilities to allow all sides to exercise their legal rights.

“This report clearly recognises the pressure that was placed upon the force and its officers and the difficulties that they encountered in balancing the policing response.

“At the time these concerns were raised in discussions between the force, myself and my office and council colleagues. We had a number of meetings and discussions with the leader of the council, the cabinet members and senior officers to express these concerns and to encourage them to seek a political solution rather than to involve the police.

“I hope the report provides closure for those who were caused distress and that reconciliation can be achieved amongst all of the parties concerned.”