Breen & others v Esso Petroleum Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Jonathan Baker,Lord Justice Dingemans |
| Judgment Date | 26 October 2022 |
| Neutral Citation | [2022] EWCA Civ 1405 |
| Docket Number | Case No: CA-2022-001874 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1405
Lord Justice Coulson
Lord Justice Baker
and
Lord Justice Dingemans
Case No: CA-2022-001874
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR JUSTICE RITCHIE
[2022] EWHC 2601 (KB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Annabel Timan (instructed by ITN Solicitors) for the Appellant
Timothy Morshead KC (instructed by Eversheds Sutherland International LLP) for the Respondent
Hearing date: 20 October 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 26 October 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 6 September 2022, Ritchie J (“the judge”) heard the respondent's application to commit the appellant to prison for contempt of court. In his judgment ( [2022] EWHC 2601 (KB)), the judge found that the appellant was in breach of an earlier court order and was guilty of contempt of court. He imposed sanctions of 112 days immediate custody and a fine of £1,500.
The appellant seeks to appeal the sanctions imposed upon him. That appeal is brought as of right: s.13(3) of the Administration of Justice Act 1960 provides that a defendant who is found guilty of contempt has an automatic right of appeal 1. However, it is accepted on the appellant's behalf that he was guilty of contempt of court and, in respect of the sanction, that the custody threshold was passed (see paragraph 27 of the appellant's replacement skeleton argument). The arguments on appeal are therefore limited.
Three points are taken. Ground 1 is the suggestion that the judge's sanction was wrong in principle. That is concerned with the judge's method of calculation of the 112 days custody. Although there is also a complaint about the judge's failure to suspend the sentence, I consider that that is better dealt with under Ground 2 (where the suspension point is also taken). Ground 2 is the submission that the sanction of 112 days immediate custody was unreasonable. That divides into two parts: that it was too long and should have been suspended. Ground 3 is that the fine was unjustified in circumstances where there was already a period of imprisonment and the appellant had no means.
At the end of the hearing, the parties were told that, whilst the court acceded to Ground 3 of the appeal (as to the fine), the remainder of this appeal was dismissed. I said that the court would give the reasons for that decision by Monday 24 th October, which is when these judgments were provided to the parties in draft.
The Law
Because this is a case where (i) contempt is admitted; and (ii) it is accepted that the custody threshold has been passed, it is unnecessary to set out copious quotations from the many recent cases concerned with the correct approach to committal proceedings. I should, however, say that I have paid particular regard to Cuadrilla Boland ltd. & Others v Persons unknown & Others [2020] EWCA Civ 9: [2020] 4 WLR 29 (“ Cuadrilla”); Cuciurean v SoS for Transport & Anr [2021] EWCA Civ 357 (“ Cuciurean”); Attorney General v Crosland [2021] UKSC 15; [2021] 4 WLR 103 (“ Crosland”); National Highways Limited v Heyatawin [2021] EWHC 3078 (KB); [2022] Env.L.R. 17 (“ Heyatawin”); National Highways Limited v Buse & Others. [2021] EWHC 3404 (QB) (“ Buse”) and National Highways Ltd v Springorum and Others [2022] EWHC 205 (QB) (“ Springorum”).
The Correct Approach to Sanctions in Contempt Cases
The correct approach was summarised in Crosland at [44] as follows:
“44. General guidance as to the approach to penalty is provided in the Court of Appeal decision in Liverpool Victoria Insurance Co Ltd v Khan [2019] EWCA Civ 392; [2019] 1 WLR 3833, paras 57 to 71. That was a case of criminal contempt consisting in the making of false statements of truth by expert witnesses. The recommended approach may be summarised as follows:
1. The court should adopt an approach analogous to that in criminal cases where the Sentencing Council's Guidelines require the court to assess the seriousness of the conduct by reference to the offender's culpability and the harm caused, intended or likely to be caused.
2. In light of its determination of seriousness, the court must first consider whether a fine would be a sufficient penalty.
3. If the contempt is so serious that only a custodial penalty will suffice, the court must impose the shortest period of imprisonment which properly reflects the seriousness of the contempt.
4. Due weight should be given to matters of mitigation, such as genuine remorse, previous positive character and similar matters.
5. Due weight should also be given to the impact of committal on persons other than the contemnor, such as children of vulnerable adults in their care.
6. There should be a reduction for an early admission of the contempt to be calculated consistently with the approach set out in the Sentencing Council's Guidelines on Reduction in Sentence for a Guilty Plea.
7. Once the appropriate term has been arrived at, consideration should be given to suspending the term of imprisonment. Usually the court will already have taken into account mitigating factors when setting the appropriate term such that there is no powerful factor making suspension appropriate, but a serious effect on others, such as children or vulnerable adults in the contemnor's care, may justify suspension.”
This guidance has been repeated in a number of subsequent cases, in particular at [28] of the judgment of the Divisional Court in Buse, which also emphasised that “the purpose of imposing a sanction for contempt is to punish the breach, ensure compliance with the court orders and rehabilitate the person in contempt”.
Particular Considerations in Protestor Cases
In accordance with general principles, any sanction for civil contempt must be just and proportionate. It must not be excessive. But in civil contempt cases, the purposes of sanctions are rather different from those in criminal cases. Whilst they include punishment and rehabilitation, an important aspect of the harm is the breach of the court's order: see [17] of Cuciurean. An important objective of the sanction is to ensure future compliance with the order in question: see Willoughby v Solihull Metropolitan Borough Council [2013] EWCA Civ 699 at [20].
When dealing with protestors for contempt, the courts have talked about the “moral difference” between “ordinary law-breakers” and protestors which, in many circumstances, can justify a more benign sentencing regime: see [98] of Cuadrilla and R v Roberts [2018] EWCA Crim 2739; [2019] 1 WLR 2577 at [34]. This is to encourage a dialogue with the defendant so that he or she appreciates that, in a democratic society, it is the duty of responsible citizens to obey the law and respect the right of others, even where the law or other people's activities are contrary to the protestor's own moral conviction: see [98] of Cuadrilla.
The specific issue of dialogue was addressed by Dame Victoria Sharp, President of the King's Bench Division, in Heyatawin. She said at [53]:
“53. In some contempt cases, there may be scope for the court to temper the sanction imposed because there is a realistic prospect that this will deter further law-breaking or, to put it another way, encourage contemnors to engage in the dialogue described in Cuadrilla with a view to mending their ways or purging their contempt. However, it is always necessary to consider whether there is such a prospect on the facts of the case. In some cases, there will be. In some cases, not. Moreover, it is important to add, that “there is no principle which justifies treating the conscientious motives of the protestor as a licence to flout court orders with impunity”: Attorney General v Crosland [2021] UKSC 15, at [47].”
In this way, the importance of complying with court orders, no matter the sincerity of the protestor's views, still remains paramount: as the Supreme Court said in Crosland at [47]:
“47. The respondent was motivated by his concerns and fears relating to the consequences of global warming and his disagreement with the decision of the Supreme Court. However, this does not begin to justify his conduct. There is no principle which justifies treating the conscientious motives of a protester as a licence to flout court orders with impunity. It was, moreover, a futile gesture as the judgment would in any event have been available some 22 hours later for scrutiny and criticism by the media and the public. However, we do accept that greater clemency is normally required to be shown in cases of civil disobedience than in other cases; see Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9; [2020] 4 WLR 29 and Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357”
The Relevance Of Other Authorities
In Thursfield v. Thursfield [2013] EWCA Civ 840; [2013] C.P. Rep 44), this court was dealing with the appropriate sanction in a contempt of court case. Lloyd LJ deprecated the extensive citation of other authorities. As he said at [33]:
“33 Mr Maguire referred in his skeleton argument, by way of contrast, to a wide variety of other cases including some in the JSC BTA Bank saga. I derive no assistance from any of them and I deprecate the citation of cases which are really said to be precedents or guidance on the facts. Each case, particularly of committal, depends on its own facts, and a comparison with the facts of other cases, unless they are so closely related as to be in effect the same case, where there might conceivably be arguments as to inconsistency between different contemnors in relation to the same contempt, seems to me to be altogether unhelpful.”
I agree with that. Extensive citation of...
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Christopher Lovett v Wigan Borough Council
...to ensuring future compliance with the order. We refer to paragraph 8 of the judgment of Coulson LJ in Breen v Esso Petroleum [2022] EWCA Civ 1405 with which we agree. This places the emphasis in civil contempt case on the importance of the objective of ensuring future compliance. We refer......
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...as to sanctions in protestor cases were summarised recently in the judgment of this court in Breen & Ors v Esso Petroleum Company Ltd [2022] EWCA Civ 1405 at [5]–[17]. It is therefore unnecessary to repeat those paragraphs here: they should be read as if they were part of this judgment. Th......