Elliott Cuciurean v The Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Lord Justice Lewison,Lord Justice Edis |
| Judgment Date | 16 March 2021 |
| Neutral Citation | [2021] EWCA Civ 357 |
| Date | 16 March 2021 |
| Docket Number | Appeal No: A3/2020/1909/CHANF |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 357
THE RT. HON. Lord Justice Lewison
THE RT. HON. Lord Justice Edis
and
THE RT. HON. Lord Justice Warby
Appeal No: A3/2020/1909/CHANF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST
BIRMINGHAM DICTRICT REGISTRY
Mr Justice Marcus Smith
PT-2020-BHM-00001
Royal Courts of Justice
Strand, London, WC2A 2LL
Heather Williams QC and Adam Wagner (instructed by Robert Lizar Solicitors) for the Appellant
Richard Kimblin QC and Michael Fry (instructed by DLA Piper UK LLP) for the Respondents
Hearing dates: 16–17 February 2021
Approved Judgment
Introduction
This is an appeal against findings of contempt of court by breach of an injunction prohibiting trespass on land, and against the sanctions imposed.
The land is woodland near Kenilworth, Warwickshire, which has been defined for the purposes of these proceedings as “the Crackley Land”. It is held by the claimants in these proceedings for the purposes of the well-known high-speed rail transport infrastructure project known for short as HS2.
The first claimant, and first respondent to the appeal, is the Secretary of State for Transport (“the SST”). The second claimant/respondent is the company responsible for the HS2 project (“HS2 Ltd”). The appellant is Elliott Cuciurean, an objector to the environmental impact of the HS2 project.
The injunction (“the March Order”) was granted on 17 March 2020 by Andrews J, DBE, as she then was, on the application of the SST and HS2 Ltd. It was, in its material part, an injunction against Persons Unknown. Andrews J gave her reasons in a reserved judgment dated 20 March 2020 (“the Andrews Judgment”, [2020] EWHC 671 (Ch)).
The appellant was not a named defendant to the claim. On 9 June 2020, however, the SST and HS2 issued a contempt application against him (“the Application”), alleging that he was one of the Persons Unknown against whom the claim was brought, and that he had wilfully broken the injunction on at least 17 occasions by entering and remaining on the Crackley Land.
The Application was heard by Marcus Smith J over three days, on 30 and 31 July and 17 September 2020. In his reserved judgment dated 13 October 2020 (“the Liability Judgment”, [2020] EWHC 2614 (Ch)), the Judge found the appellant in breach in 12 respects. On 16 October 2020, there was a hearing on sanction. In respect of each breach the Judge made an order for committal to prison for six months, suspended for 12 months, all such orders to run concurrently. His reasoning was explained in a further judgment, dated 16 October 2020 (“the Sanctions Judgment”, [2020] EWHC 2723 (Ch)).
The appellant's case before this Court is that the findings of contempt were wrong in law. He has four grounds of appeal. I shall come to the detail, but in summary the appellant's case is that the evidence before the Judge was incapable of establishing (1) that he encroached on the Crackley Land on any of the 12 occasions, or (2) that he had sufficient notice of the March Order to justify a finding that any such encroachment amounted to contempt. He further submits that the Judge erred in law in two respects: by requiring the appellant to establish that the position on notice was such that it would be unjust to find him in contempt, thereby reversing the burden of proof; and by leaving out of account the claimants' failure to comply with one of the service provisions of the March Order. In the alternative, the appellant contends that the penalties imposed were wrong in principle and/or excessive and disproportionate.
We heard argument on the appeal on 16 and 17 February 2021, following which we reserved judgment. I wish to pay tribute to the high quality of the submissions on both sides. Having reflected on the arguments, and for the reasons that follow, my conclusion is that the liability appeal should be dismissed. I would also reject the appellant's contention that his conduct did not justify any custodial sanction. But in my judgement, we should allow the sanctions appeal to the extent of reducing the sanction to one of committal for three months, suspended for the same period and on the same conditions as were set by the Judge.
The legal framework
Context
The following general principles are well-settled, and uncontroversial on this appeal.
(1) Peaceful protest falls within the scope of the fundamental rights of free speech and freedom of assembly guaranteed by Articles 10(1) and 11(1) of the European Convention on Human Rights and Fundamental Freedoms. Interferences with those rights can only be justified if they are necessary in a democratic society and proportionate in pursuit of one of the legitimate aims specified in Articles 10(2) and 11(2). Authoritative statements on these topics can be found in Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 [43] (Laws LJ) and City of London v Samede [2012] EWCA Civ 160 [2012] 2 All ER 1039, reflecting the Strasbourg jurisprudence.
(2) But the right to property is also a Convention right, protected by Article 1 of the First Protocol (“A1P1”). In a democratic society, the protection of property rights is a legitimate aim, which may justify interference with the rights guaranteed by Article 10 and 11. Trespass is an interference with A1P1 rights, which in turn requires justification. In a democratic society, Articles 10 and 11 cannot normally justify a person in trespassing on land of which another has the right to possession, just because the defendant wishes to do so for the purposes of protest against government policy. Interference by trespass will rarely be a necessary and proportionate way of pursuing the right to make such a protest. Like Marcus Smith J, I would adopt paragraph [35] of the Andrews Judgment, where she said:
“…the simple fact remains that, other than when exercising the legal rights that attach to public or private rights of way, no member of the public has any right at all to come onto these two parcels of land, even if their motives are simply to engage in peaceful protest or monitor the activities of the contractors to ensure that they behave properly…”
(3) It is established that proceedings may be brought, and an interim injunction granted against Persons Unknown in certain circumstances: Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303 [2020] 1 WLR 280 [57], and cases there cited. This is a tool that can properly be used in support of the legitimate aim of protecting property rights The Court must keep a watchful eye on the use of this jurisdiction, and it may not be used where the defendants' identities are known: GYH v Persons Unknown [2017] EWHC 3360 (QB) [10], Canada Goose [82(1), (5)]. But this is a common and, in principle, an unobjectionable mechanism for bringing proceedings against unidentified persons who will or are likely in the future to trespass on land (or commit another civil wrong), against whom a quia timet injunction is sought: South Cambridgeshire District Council v Gammell [2005] EWCA Civ 1429 [32], Canada Goose [63].
(4) Where the Court, having conducted the necessary balancing process, has granted an injunction, that order must be obeyed unless and until it has been set aside. The issue was examined, and this principle was re-affirmed, by the Divisional Court in Re Yaxley-Lennon (No 2) [2019] EWHC 1791 (QB) [2020] 3 All ER 477 [49]. It follows that a person accused of contempt by disobedience to an order may not seek to revisit the merits of the original injunction as a means of securing an acquittal, although these matters may in some cases be relevant to sanction.
(5) So, at the liability stage of a contempt application such as this, the underlying importance or merits of the HS2 project, the policy and the merits of the opposition to it are all irrelevant, as is the fact that the case involves speech or protest or assembly. As Marcus Smith J observed in the Liability Judgment at [10]:-
“This Application is concerned only with (i) whether the Order has been breached and (ii) whether the circumstances of those breaches – if they occurred – are such as to trigger the contempt jurisdiction. These are extremely important questions to do with the consequences of an alleged breach of a court order. Their resolution does not depend on the merits or otherwise of the HS2 Scheme or the extent of a person's right of protest to that Scheme.
…
why the order is breached is irrelevant to the contempt jurisdiction, although it may be relevant to the question of sanction.”
The nature and purposes of the civil contempt jurisdiction
As the passage just cited emphasises, the essence of the wrong is disobedience to an order. Disobedience to an order made in civil proceedings is known as “civil contempt”. The contempt proceedings are brought in the civil not the criminal courts. The procedure is regulated by common law and Part 81 of the Civil Procedure Rules. The proceedings are not brought by the state, through the Attorney General or otherwise, in the public interest. They are normally brought by the beneficiary of the order that is said to have been disobeyed, whose main if not sole purpose will be to uphold and ensure compliance with the order. In summary, this is “contempt which is not itself a crime”: R v O'Brien [2014] UKSC 23 [2014] AC 1246 [42] (Lord Toulson). Hence the use of...
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