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
Pok Yin S. 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, concerning individuals convicted of contempt for defying in-
junction orders to refrain from continuing their direct-action protests at a fracking site run by
an oil company, with a view to immobilising its business operations. The note obser ves that
the Court here oered a more coherent basis for sentencing principles concerning acts of civil
disobedience and breaches of injunction orders. The rationales oered transcend traditional dis-
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 r ights’.
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 the most perplexing issues in public law. As dened by John Rawls, civil
disobedience is a ‘public, nonviolent, conscientious yet political act contrary
to law usually done with the aim of bringing about a change in the law or
policies of the government.’1Scholars argue that, as a for m of 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 deliberate lawbreaking to achieve a desired result, it un-
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.
2 See for example R. Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press,
1977) 186-187; K. Brownlee, ‘Penalizing Public Disobedience’ (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, ‘The Right to Civil Disobedience’ (2003) 41 Osgoode
Hall Law Journal 407.
3 For example Erwin Gr iswold (ex-Dean of the Harvard Law School) argued that even if morally
agreeable, civil disobedience is legally unacceptable. He commented that ‘it is of the essence of
© 2021 The Author.The Modern Law Review © 2021 The Modern Law ReviewLimited. (2022)85(4) MLR 1062–1070
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