Reconsidering Sentencing Principles in Cases of Civil Disobedience: Cuadrilla Bowland Ltd and Others v Persons Unknown and Others
| Published date | 01 July 2022 |
| Author | Pok Yin S. Chow |
| Date | 01 July 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12704 |
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Modern Law Review
DOI:10.1111/1468-2230.12704
Reconsidering Sentencing Principles in Cases of Civil
Disobedience: Cuadrilla Bowland Ltd and Others vPersons
Unknown and Others
PokYinS. Chow∗
Common law courts have struggled to oer a consistent basis for sentencing in cases concern-
ing civil disobedience.This case note examines the recent Court of Appeal decision Cuadrilla
Bowland Ltd vPersons Unknown, concerningindividuals convictedof contemptfordefying in-
junction orders to refrain from continuing their direct-action protests at a fracking site run by
an oilcompany, with aviewtoimmobilising its businessoperations. The note obser ves that
the Court here oered a more coherent basis for sentencing principles concerning acts of civil
disobedience andbreaches ofinjunction orders. Therationales oeredtranscend traditionaldis-
tinctions, relied on by some courts, between direct and indirect disobedience and between civil
disobedience and contempt, which have brought about considerable analytical diculties.The
judgment further signies a paradigm shift in the Court’s approach to cases of civil disobedience
– from emphasising ‘law and order’to focussing on a ‘balance of rights’.
INTRODUCTION
The subject of civil disobedience has been a topic of considerable interest for
both judges and academics across common law jurisdictions,as it poses some
of themostperplexing issuesin publiclaw. As denedby JohnRawls, civil
disobedience isa‘public, nonviolent, conscientious yetpolitical actcontrary
to law usually done with the aim of bringing about a change in the law or
policies of the government.’1Scholars arguethat, asaformof conscientious
protest against unjust laws and policies,an act of civil disobedience ought to
be considered dierently from an ordinary crime.2Others believe that,as civil
disobedience involves deliberatelawbreakingtoachieve adesiredresult, itun-
dermines the rule of law and should therefore be viewed as equal to any other
form of lawbreaking, if not suitably deterred.3
∗Assistant Professor,School of Law, City University of Hong Kong. The author would like to thank
the anonymous reviewer for their helpful comments and Ms Urania Chiu for her research assistance.
1J.Rawls,A Theory of Justice (Cambridge, MA: Harvard University Press, 1971)320.
2Seefor exampleR. Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard UniversityPress,
1977) 186-187; K. Brownlee, ‘Penalizing PublicDisobedience’ (2008)118 Ethics 711; M.R. Hall,
‘Guilty but Civilly Disobedient: Reconciling Civil Disobedience and the Rule of Law’ (2007)
28 Cardozo Law Review 2083; V. Haksar, ‘TheRightto CivilDisobedience’ (2003)41 Osgoode
Hall Law Journal 407.
3For example Erwin Gr iswold (ex-Dean of the Harvard Law School) argued that even if morally
agreeable, civil disobedienceis legallyunacceptable. He commentedthat‘it isofthe essenceof
© 2021 The Author.The ModernLaw Review © 2021 The Modern Law ReviewLimited.(2022)85(4)MLR 1062–1070
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