Sheffield City Council v Paul Brooke

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Males
Judgment Date21 Jun 2018
Neutral Citation[2018] EWHC 1540 (QB)
Docket NumberCase No: D92LS739

[2018] EWHC 1540 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

SHEFFIELD DISTRICT REGISTRY

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Males

Case No: D92LS739

Between:
Sheffield City Council
Claimant
and
Paul Brooke
Defendant

Yaaser Vanderman (instructed by Sheffield City Council) for the Claimant

Owen Greenhall (instructed by Lloyds PR Solicitors) for the Defendant

Hearing dates: 5 to 7 June 2018

Judgment Approved

Mr Justice Males

Introduction

1

This is my judgment on the application by Sheffield City Council to commit Paul Brooke to prison for contempt of court. It was heard at the same time as applications concerning three other Sheffield citizens, Simon Crump, Fran Grace and Benoit Compin. I gave judgment relating to these other defendants at the conclusion of the hearing on 7th May 2018 (see Sheffield City Council v Crump [2018] EWHC 1411 (QB)), but reserved my decision in the case of Mr Brooke in order to consider further the legal submissions which had been made in his case.

2

The application arises out of the council's controversial tree felling programme which forms part of a 25 year highway maintenance programme known as “Streets Ahead”. The background is set out in detail in my judgment in Sheffield City Council v Fairhall [2017] EWHC 2121 (QB) dated 15th August 2017. In that judgment I decided that there should be an injunction to restrain the defendants from taking action to prevent the felling by the council and its contractor of trees on the public highway by maintaining a presence within a safety zone erected around a tree.

3

Mr Brooke was a defendant in that action who gave an undertaking in the course of the hearing. It was in the following terms:

“I will not:

i) enter any safety zone erected around any tree within the area shown edged red on the plan attached hereto;

ii) seek to prevent the erection of any safety zone;

iii) remain in any safety zone after it is erected;

iv) knowingly leave any vehicle in any safety zone or intentionally place a vehicle in a position so as to prevent the erection of a safety zone;

Nor will I encourage, aid, counsel, direct or facilitate anybody else to do any of the matters in paragraphs (i) to (iv) above including by posting social media messages.”

4

The area shown edged red on the attached plan was the administrative area of the City of Sheffield. The undertaking was stated to apply until 23:59 on 25th July 2018.

5

Although this undertaking was given reluctantly, it was expressly made clear by Mr Brooke's counsel in his presence that Mr Brooke gave the undertaking of his own free will, understanding that it bound him to the same extent as if an order in the same terms had been made against him.

6

I began my judgment on the application to commit the other three defendants by making some points which it is useful to keep in mind:

“4. First, as I hope I made clear in my August 2017 judgment, I expressed no view then, one way or the other, as to the merits of the tree felling programme or the objections to it. That remains the position. It is not for the court to have any view about this or for any such view to play any part in the decision which I now have to make. That decision is whether the defendants or any of them are in breach either of their undertaking or of the injunction.

5. Second, I recognise that the tree felling programme has excited some very strong emotions. That is certainly so in the case of the present defendants who object strongly to the felling of healthy trees. Their views are shared by a large number of Sheffield citizens and others, many of whom have been both vocal and active. On the other hand, there are also strong views on the other side, albeit less vocal. The evidence was that many residents support the programme.

6. Third, it is useful to recall the history of these proceedings. The challenge to the council's tree felling programme began with an application for judicial review which failed. In proceedings brought by Mr David Dillner it was held that the council's decision to remove trees was a decision made pursuant to its statutory duty to maintain the highway and was lawful: see R (Dillner) v Sheffield City Council [2016] EWHC 945 (Admin). That was followed by the council's application for an injunction. For the reasons which I gave more fully in my judgment, I held that even if the action taken by protesters had initially been a lawful exercise of the right to protest in order to encourage the council to think again, it was apparent that the council had thought again and had decided that it was in the interests of the people of Sheffield as a whole to maintain its policy. That was, therefore, the considered decision of the democratically accountable statutory body charged with responsibility for determining how the highway should be repaired and maintained and how public resources should be allocated. Whatever view may be had about its decision, it was accountable to the people of Sheffield through the ballot box.

7. Fourth, since the tree felling programme began there have been not one but two opportunities for the people of Sheffield to consider this issue. In May 2016 there was an election in which all 84 council seats were contested. In May 2018 there was a further local election. Politically controversial as this issue undoubtedly is, the fact is that on both occasions the people of Sheffield voted for councillors a majority of whom supported the tree felling programme.

8. Fifth, and fundamentally, this is a society governed by the rule of law. It is for the people to vote for their elected representatives at both national and local level. Parliament then makes the law, which includes determining the functions to be carried out by local authorities. Parliament has entrusted to local authorities, in this case Sheffield City Council, the function of repairing and maintaining the highway. It is then for the courts to interpret and, where necessary, enforce that law. If a court gets the law wrong, as sometimes happens, the aggrieved party can appeal to a higher court. The defendants in this action could have sought permission to appeal against my judgment if they considered that the law gave them the right to continue to prevent tree felling by maintaining a presence within safety zones. They did not do so. I have no doubt that they were competently advised as to the prospects of an appeal and took the view that an appeal would not have any real prospect of success.

9. Sixth, it follows that the injunction which I granted reflects the considered decision of the democratically elec ted body entrusted by Parliament with the responsibility of repairing and maintaining the highway and is in accordance with the law.

10. Seventh, it was because of the importance of democratic accountability in this case that I sought reassurance at the outset of the hearing of this application that the application was brought with the approval of democratically elected councillors including specifically the Leader of the Council. It may be, as Mr Yasser Vanderman for the council told me, that the decision whether to bring this application was constitutionally a decision for the council's Legal Director to make. Nevertheless, I would have been uneasy in the circumstances of this case if an application was being made on behalf of the council to commit citizens of Sheffield to prison without the support of democratically elected councillors. In response to my enquiry, I was told that the application was supported by the Leader of the Council.

11. Eighth, it is critical to the rule of law that the orders of the court should be complied with. If we were to reach a position where orders made by the court could be ignored with impunity by those who disagree with them, we would have lost something very precious.”

Legal principles

7

The following principles apply generally to an application to commit for contempt:

(1) The burden of proof is on the applicant to show that the defendant has intentionally committed acts which are contrary to the order or undertaking.

(2) This must be proved to the criminal standard.

(3) The conduct prohibited must be clearly stated in the order or undertaking.

(4) If the order or undertaking is reasonably susceptible to more than one meaning, the meaning favourable to the defendant should be adopted.

The application to commit Mr Brooke

8

The application to commit Mr Brooke is concerned with an incident which took place on Meersbrook Park Road in Sheffield on 22nd January 2018. The council alleges that he entered a safety zone in breach of his undertaking.

9

Mr Brooke accepts that there was a properly constituted safety zone erected around a tree on that road which was due to be felled, that he intentionally entered the safety zone, and that he was aware of the terms of his undertaking. Pausing there, it would appear that it is proved to the criminal standard that Mr Brooke intentionally committed an act which was contrary to his undertaking.

10

Mr Brooke maintains, however, that he was not in breach of the undertaking because it was lawful for him to enter the zone to go to the defence of a female protester who was being forcibly removed by security staff engaged by Amey, the contractor employed by the council under a PFI contract to deliver the “Streets Ahead” programme.

11

This defence raises some issues on which, so far as counsel are aware, there is no direct authority.

12

The issues for decision are as follows:

(1) Is it in principle a defence to an application to commit for contempt that the defendant did the prohibited act in defence of another person?

(2) If so, who has the burden of proof?

(3) Does the criminal or civil law test apply?

(4) Did Mr Brooke have an honest belief, alternatively an honest and reasonable belief, that it was necessary to do the prohibited act?

...

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