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Cite as: [2015] EWCA Civ 1419

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Neutral Citation Number: [2015] EWCA Civ 1419
A2/2015/0466

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR DAVID EADY)

Royal Courts of Justice
Strand
London, WC2A 2LL
16 July 2015

B e f o r e :

LORD JUSTICE PATTEN
LORD JUSTICE FULFORD
LADY JUSTICE SHARP

____________________

Between:
MR JAY TIERNAN & ORS Appellant
v
NATIONAL FARMERS UNION & ORS Respondents

____________________

DAR Transcript of the Stenograph Notes of
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  1. LADY JUSTICE SHARP: Mr Jay Tiernan, the Appellant, is a spokesman for an unincorporated association known as The Coalition of Badger Action Groups, or CBAG for short. This is a group which protests against the culling of badgers and also uses the name "Stop the Cull". He appeals against the findings of contempt made by Sir David Eady sitting as a Judge of the High Court on 21 January 2015 in contempt proceedings brought against him in his own capacity and representing members, participants and supporters of the unincorporated association known as The Coalition of Badger Action Groups and/or Stop the Cull.
  2. There are five Claimants in the main proceedings. They are the National Farmers Union (the NFU), an advisory association that represents the interests of farmers and growers in England and Wales; Mr Peter Kendall, Mr Rupert Dod, Mr Carl Gray and Mr Paul Gould, each of whom also sues in a representative capacity as well on their own behalf. There were two relevant orders; an injunction order made by Turner J dated 22 August 2013 and an order made by Popplewell J dated 9 September 2013 extending the order made by Turner J. The Claimants alleged that Mr Tiernan breached the orders in nine respects. Sir David Eady found each allegation proved and sentenced him to 6 months' imprisonment suspended for 2 years.
  3. The background relates to a badger cull undertaken to prevent the spread of bovine tuberculosis. In 2011 the Department of the Environment, Food and Rural Affairs announced culling would be allowed. The Protection of Badgers Act 1992 section 10(2) (a) gives the Secretary of State power to grant licences authorising the killing or taking of badgers for the purpose of preventing the spread of disease. Such licences were issued by 'Natural England' in the autumn of 2012. A cull pilot scheme took place in the summer and autumn of 2013 in West Gloucestershire and West Somerset. It was administered by various companies set up for that purpose. The cull is controversial and a number of groups oppose it.
  4. On 22 August 2013 the Claimants made an application on notice to Turner J for an interim injunction against the named Defendants prohibiting harassment of farmers and those involved in the cull. They did so on the basis of evidence that as the date of the cull approached, serious incidents of trespass, personal harassment and intimidation of those suspected of being involved in the cull began to increase.
  5. At that hearing, the Badger Trust was joined as an Interested Party and was represented by counsel. Mr Tiernan attended and appeared in person. He made oral submissions to the Court and participated in discussions with counsel for the Badger Trust outside the hearing as to the wording and scope of the terms of the order during a brief adjournment which had been given for that purpose. Though there was some doubt expressed about the matter, I am satisfied from looking at the transcript that the Judge's attention was drawn to the relevant provisions of section 12 of the Human Rights Act 1998 at the hearing and to the decision of the House of Lords in Cream v Banerjee [2004] UKHL 44; [2005] 1 AC 253 where the relevant threshold test which applies for the purposes of section 12(2) of the HRA 1998 is identified.
  6. The terms of the injunction were the subject of argument. In view of the fact that the Defendants might not further contest its imposition, the matter was listed for a return date on 6 September 2013 with a proviso that any Defendant wishing to apply to vary or discharge the order was to file evidence by 30 August 2013. If no evidence was filed, no further hearing would be necessary and the order would be amended to continue "until trial or further order".
  7. No evidence was filed. By an order sealed on 9 September 2013, Popplewell J extended the interim order of Turner J to trial or further order on the same terms. The order contained the following provisions:
  8. i. "…The Defendants must not (whether by themselves, their agents or any person acting on their behalf) and must not procure, incite, aid, abet or encourage any other person to do any of the following inter alia:

    (2) Enter on to any privately owned land within the Cull Zone [as defined] without the express or implied consent of the owner or lawful occupier of that land excluding any public rights of way;…

    i. (9) Harass or intimidate any Protected Person [as defined] by photographing or filming any such Protected Person, any vehicle used or owned by a Protected Person and/or any land, premises or house belonging to or occupied by any Protected Person.

    ii. (10) Use, publish, communicate or disclose (whether on the internet or howsoever) any still or moving images from which any Protected Person, their vehicle, home, farm or premises can be identified whether from the image alone or in conjunction with other information.

    iii. (11) Use, publish, communicate or disclose (whether on the internet or howsoever) to any other person (other than by way of disclosure to legal advisers instructed in relation to these proceedings for the purpose of obtaining legal advice in relation to these proceedings, or for the purpose of carrying this order into effect)

    a. The residential address of any Protected Person or any images that would allow such address to be identified;
    b. The telephone or fax number or numbers (including mobile telephone numbers) of any Protected Person;
    c. The email address of any Protected Person;
    d. The vehicle registration number or numbers of any vehicles owned or used by any Protected Person or any images that would allow such vehicles to be identified; and.
    e. Any information that would cause or allow any Protected Person to be identified as associated with or participating in the Cull whether alone or in combination with other information…

    iv. without the express written consent of the respective Protected Person, save that nothing in the order prohibits identification of the Individual Claimants by name alone (and occupation and representative capacity in this action) for purposes of a fair and accurate report of these proceedings.

    v. (12) Cause, encourage or procure publication or communication of any Personal Information aforesaid of any Protected Person whether directly or indirectly by any means whatsoever including but not limited to publishing or communicating hyperlinks to websites where any such Personal information may be available or by a third party publisher.

    vi. (13) Any acts which amount to harassment of any Protected Person…
    vii. IT IS FURTHER ORDERED:

    viii. …

    ix. 10. The Defendants are required to notify their members of the fact that the Order has been made by posting on any websites identified in this paragraph and on any other website they publish or may in future publish: (a) that a Court Order has been made prohibiting activity in the Cull Zone and (b) post a copy of the Order on the following websites (save in the case of twitter.com by posting a link to a copy of the Order) and to maintain a copy of this Order on such websites until the conclusion of trial or further order of the Court as follows:

    x. 10.1. the First Defendant on:

    xi. 10.1.1. www.badger-killers.co.uk
    xii. 10.1.2. www.stopthecull.net
    xiii. 10.1.3. www.facebook.com/freeda.brocks.5
    xiv. 10.1.4. www.facebook.com/stopthecull
    xv. 10.1.5 http://www.youtube.com/channel/UC4Tnh6-evf-ZBNBLgVWPdkQ
    xvi. 10.1.6. https://plus.google.com/109049615381794069089#s/freeda%20brocks
    xvii. 10.1.7. https://twitter.com/freebrocks
    xviii. and using his best endeavours to procure the posting on www.badger-killers.com."

  9. On 3 June 2014 the Respondents issued an application to commit Mr Tiernan for contempt. It was their case that there was a settled intention among protesters, including Mr Tiernan, to ignore or flout any injunction granted. They relied for example, on a post on the Stop the Cull Facebook page dated 19 August 2013 (after the application for an injunction was served) which stated:
  10. i. "[T]here is one simple rule about injunctions, you don't talk about them.

    ii. If you do, then you serve them on everyone else reading the post. Don't ask questions about injunctions, if you hear about an injunction DO NOT COMMENT ABOUT IT ON FACEBOOK OR TWITTER."

  11. There were similar tweets at the @freebrocks Twitter account encouraging followers not to post about the injunction for fear of effectively serving it. On 17 August 2013, a message was posted on the Stop the Cull Facebook page explaining that Mr Tiernan no longer had an administrative authority over the account.
  12. The first hearing of the committal application came before Andrews J on 26 June 2014. At the NFU's request, it was a directions hearing to address with Mr Tiernan his need for legal representation. The matter was then adjourned for a period of five months to allow Mr Tiernan time to obtain legal representation.
  13. At the substantive committal application before Sir David Eady, Mr Tiernan appeared in person. The NFU's case was that Mr Tiernan had deliberately disobeyed the injunction. Their allegations were supported in several instances by filmed footage. The NFU called six witnesses. Mr Tiernan cross-examined five of them. He did not give evidence.
  14. Judgment was handed down on 21 January 2015. The Judge found all nine breaches proved to the criminal standard, including some which had been added by amendment by order of Wyn Williams J on 27 October 2014, and which concerned events which post-dated the service of the application to commit. The Judge concluded the breaches were flagrant. At paragraph 10 of his judgment he referred to a BBC report, which recorded that Mr Tiernan had said (to journalists after the injunction was imposed) that it [the injunction order] would "make absolutely no difference whatsoever". The Judge described this as a challenge to the rule of law in a democratic society.
  15. The breaches the Judge found proved can be summarised as follows.
  16. Mr Tiernan (1) failed to notify CBAG members of the order by posting it on named websites, (2) harassed a person protected by the order, Vivian Sellick, on 30 October 2013 by filming him and his vehicle and publishing the film online, (3) trespassed on private land in the cull zone, and harassed and intimidated a person protected by the order, Rupert Dod, on 17 September 2014 and (4) picketed, loitered and demonstrated within 25 metres of the NFU's Taunton offices on or about 17 September 2014.
  17. Mr Tiernan now appeals as of right against the findings of contempt. There are three grounds of appeal and I shall deal with them in turn.
  18. ground 1
  19. Mr Tiernan says he was not told, as he should have been, that he was entitled to legal aid regardless of his means and the merits. This constituted a breach of his fair trial rights under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").
  20. This ground is unsustainable, in my view. It is clear from the material before us that the NFU through its legal advisers (including counsel) and also the judges who dealt with this matter, bent over backwards to assist Mr Tiernan in this respect to the extent that it was appropriate for them to do so.
  21. Mr Tiernan was told on a number of occasions that he should seek legal advice and of the availability of legal aid; and he was given the warning in writing, which is obligatory under CPR Practice Direction 81, in correspondence, on the committal application and when the application was re-served because of the amendment.
  22. Thus: A letter from the NFU's solicitors of 4 June 2014 accompanying service of the committal application, contained the obligatory warning required by the Civil Procedure Rules and contained links to the legal aid website, the MOJ website and the Government website.
  23. A post, not apparently written by Mr Tiernan himself, alerted the NFU's solicitors to the possibility that he might not have legal representation and/or legal aid. They therefore wrote to Mr Tiernan and took steps to convert what would have been the hearing of their application to commit into a directions hearing specifically to deal inter alia with the question of his lack of representation. This letter said, amongst other things:
  24. i. "...The courts treat applications for committal very seriously because of the potential consequences. In consequence, it is our experience that a court is unlikely to wish to proceed with a substantive hearing of a committal application at the first hearing where … [the Respondent] is unrepresented...
    ii. Further, under the CPR 81 Practice Direction, paragraph 15.6 specifically directs the court to have regard to the need for you as the Respondent to be given the opportunity if unrepresented to obtain legal advice..."

  25. For the purposes of the directions hearing on 26 June 2014 which specifically addressed the issue of Mr Tiernan's representation, the relevant rules in paragraph 15.6 of CPR 81 Practice Direction were set out in skeleton argument of Ms Michalos, counsel for the NFU. Those rules provide that the court is to have regard to the need of a respondent to committal proceedings to be aware of the possibility of legal aid and to be given the opportunity to seek representation.
  26. Andrews J specifically addressed Mr Tiernan on the matter. She said:
  27. i. "In a case like this it is -- contempt proceedings are very serious because if the judge who eventually hears this thinks that there was a deliberate contempt, then the range of sanctions are quite varied... and it is for that reason that it is very important that somebody facing these proceedings -- they are of a criminal type nature even though they are before a civil court and in this building... and Ms Michalos has very fairly said that you ought to be given a longer opportunity to try and get legal representation. I cannot, of course, advise you as to how you go about that, but depending on your means, you ought to be entitled to legal aid because this is of a criminal nature. So it may be if you speak to Ms Michalos, she will be able to point you in the right direction after the hearing as to various channels that you can go to, and I also know that within the building there is the Personal Support Unit that might have some available advice for you to give you a steer as to where you can go, and there is also the National Pro Bono Centre in Chancery Lane, which is just down the road from here, and if push comes to shove and you cannot get somebody to represent you under the legal aid scheme, you might find somebody there who can help. All right? So there are various agencies that you can go through."

    ii. The order made by Andrews J also referred in its recital to "the seriousness of the contempt proceedings, the desirability of him [Mr Tiernan] being represented and his likely entitlement to legal aid".
    iii. In the event, as I have said, Mr Tiernan was unrepresented at the committal hearing before Sir David Eady on 15 December 2014. This was a matter that Sir David Eady referred to at paragraph 4 of his judgment, where he said:
    iv. "[Mr Tiernan] had been given a number of opportunities in correspondence to seek legal advice, and was informed of the possibility of public funding for that purpose, but he chose to represent himself and took the opportunity to cross-examine some of the witnesses and to make submissions."

  28. Mr Tiernan's criticism, as I understand it, is that he was not told by the NFU or its advisers that he was entitled to legal aid in view of the nature of the proceedings, regardless of the merits and probably regardless of his means.
  29. See King's Lynn and West Norfolk Council v Bunning [2013] EWHC 3320, [2015] 1 WLR 531 where Blake J said at paragraph 31 that he was informed that there are no "financial requirements" for purposes of the grant of legal aid for representation in respect of an application to commit heard in the High Court. See further Her Majesty's Attorney General v Baines [2013] EWHC 4326 (Admin).
  30. In that case committal proceedings were brought by the Attorney General in respect of breaches of the contra mundum injunction imposed by the President of the Family Division in respect of Venables and Thompson. Lord Thomas, the Lord Chief Justice, giving the judgment of the court said at para 4:
  31. i. "We would also point out, in what we hope will never eventuate further in relation to the Venables matter, that the legal position is now clear. In King's Lynn and West Norfolk Council v Bunning [2013] EWHC 3390, Blake J sets out the procedure by which legal aid can be obtained in cases similar to this. The Attorney General has agreed that in future in letters sent to anyone who is involved in contempt proceedings of this kind the contents of that judgment will be drawn to the attention of the alleged contemnor."

  32. Ms Michalos for the NFU queries the correctness of the Bunning decision insofar as it decides that legal aid is available for committal proceedings in the High Court regardless of means. As she points out, the point was the subject of concession and not argument before Blake J, and the point was then approved without argument in Baines (see also Inplayer Ltd v Thorogood [2014] EWCA Civ 1511 and Brown v London Borough of Haringey [2015] EWCA Civ 483).
  33. I think this issue may need to be examined more closely in the future. The Criminal Legal Aid (Financial Resources) Regulations 2013 (SI 2013/471) as amended by the Criminal Legal Aid (Financial Resources) (Amendment) Regulations 2013 (SI 2013/2791) to which Ms Michalos has referred us, provide (at Parts 3 and 4) for Legal Aid for representation in the Magistrates' court and the Crown Court. Part 5 of the 2013 Regulations deals with "Representation" for "Other Proceedings". At paragraph 3 it says as follows:
  34. i. "Representation in other criminal proceedings
    ii. In any criminal proceedings other than -
    (a) Magistrates' court proceedings; and.
    (b) Crown Court proceedings;
    iii. the relevant authority must make a determination that the individual's financial resources are such that the individual is eligible in accordance with section 21(1) of the Act for representation under section 16 of the Act."

    (2) (emphasis added)

  35. In my judgment however it is unnecessary for us to consider whether Bunning is correctly decided in this appeal since, as I have already indicated, I think the criticism made of the Respondents' conduct is misplaced. I have already referred to the steps taken by the Respondents concerning the issue of Mr Tiernan's representation and the availability of legal aid. They made the committal application in accordance with the Civil Procedure Rules and gave him the information the Rules required him to be given. I can see no basis for criticising them for not going further. The Rules do not state expressly that on a committal application the potential contemnor is entitled to legal aid regardless of his means or the merits. They are expressed in more cautious terms. Thus paragraph 15.6 of the Practice Direction of CPR Part 81 provides as follows:
  36. i. "The court will also have regard to the need for the respondent to be –
    (1) allowed a reasonable time for responding to the committal application including, if necessary, preparing a defence;
    (2) made aware of the possible availability of criminal legal aid and how to contact the Legal Aid Agency;
    (3) given the opportunity, if unrepresented, to obtain legal advice."

  37. These requirements were complied with. The Notes to that Rule, in the Supreme Court Practice, both the 2014 and 2015 editions, at paragraph 81.1.5, state that:
  38. i. "It is clear from section 14G of the 2012 Act that an application for legal aid may be made to the High Court by a person alleged to have committed contempt in the face of a court. It has been held that such an application may be made by a person alleged to have committed some other class of contempt because such proceedings are "criminal proceedings" as defined in section 14H of the 2012 Act and regulation 9(5) of the general regulations as they are proceedings that involve the determination of a criminal charge for the purposes of Article 6 (1)."

  39. It may be that the Rules are expressed in these contingent terms to allow for changes that may be made from time to time in the regulations, but in reality none of this matters. The issue of Mr Tiernan's representation was addressed at length as I have already said. He was told about legal aid and directed to the relevant websites where information about these matters was available.
  40. He was also told that pro bono services may be available. I should add that though the outcome of the case was potentially serious from Mr Tiernan's point of view, the issues in it were not complex or difficult and the evidence against him was straightforward in the sense that there was filmed evidence of seven of the breaches alleged against him. It is not suggested either that he is vulnerable or under some form of disability. He is articulate and intelligent and proficient with computers and technology. Critically however, there is no evidence at all that Mr Tiernan actually applied for legal aid or took any steps to obtain legal advice in the five months he was given to do so by Andrews J. At that hearing Mr Tiernan told the Judge:
  41. i. "...in that first week [10 June 2014] I approached one person to help me to try to get legal representation and that person came back to me three days later saying they could not help me. By then, that was Friday. I then approached two other potential law firms, one by phone and one by e-mail, and I just did not get responses. I did not get "no" as a response..."

  42. And it was after he said this that the Judge told him how to go about getting legal advice.
  43. We have been referred to the decision of this court in Brown v Haringey: see in particular paras 2, 3 and 26 where the court said it agreed with the analysis in Bunning. However, that case was a very different from this one on the facts. Mr Brown, a gentleman of some 80 years in age, had applied repeatedly for legal aid in relation to an application to commit him for breach of injunctions relating to anti-social behaviour.
  44. His application for legal aid and to the Legal Aid Agency was sent from pillar to post, if I can put it like that, by the Agency as a result of confusion on their part about whether the matter was covered by criminal or civil legal aid.
  45. As a result, at the committal hearing Mr Brown was unrepresented and he was then sentenced to 18 months immediate custody. In this case by contrast, there is no evidence that Mr Tiernan took any of the steps he was positively encouraged to do to obtain either legal representation or legal aid.
  46. The Respondents were not, in my judgment, obliged to do more than they did, or to assume the mantle, as Ms Michalos puts it, of becoming Mr Tiernan's legal advisers. In all the circumstances on the facts here I do not accept that Mr Tiernan suffered any injustice or infringement of his Convention rights insofar as they are engaged by these proceedings (as Ms Michalos points out, the NFU is a trade association, not a public authority).
  47. A second issue raised concerns the privilege against self-incrimination. Mr Tiernan submits that he had a right to remain silent and should have been warned of this by Sir David Eady at the hearing of the committal application. We have been given detailed submissions on the law on the topic by both Ms Michalos and Mr Tear, Mr Tiernan's representative, but it seems to me that this point goes nowhere.
  48. There can be no question but that a person accused of contempt has the right to remain silent: see Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67.
  49. Mr Tiernan was informed of his right to remain silent in the NFU's skeleton argument for the directions hearing and in their substantive skeleton argument for the committal hearing. He then exercised that right.
  50. As the transcript shows, this was a conscious choice. He had earlier lodged an unsworn and unsigned document entitled "affidavit" which did not bear a statement of truth. At the hearing he was told by the Judge that he could give evidence if he wished and he said he had no intention of giving evidence. In the circumstances, an argument that a failure to expressly warn
  51. Mr Tiernan of his right to remain silent somehow prejudiced his position goes nowhere on facts.
  52. Moreover, as a matter of law, a failure to give such a warning in criminal proceedings will not lead as a right to a conviction being quashed: see Radford v Kent County Council 18 February 1998 DC (162 JP 697) where it was said a failure to warn is of no consequence when no adverse inference is in fact drawn. This was precisely the position here.
  53. The case against Mr Tiernan was based on direct oral evidence, on the footage, and in one case (breach 9 which concerned the date when a particular photograph was taken) on proper inferences from other evidence. It is true to say that in relation to this last matter the Judge added a comment that there was no evidence to the contrary, but that comment added nothing of consequence.
  54. I would add only this. The Practice Direction to CPR 81 at paragraphs 12(4) and 13.2(4) states:
  55. i. "The application notice must contain a prominent notice stating the possible consequences of the court making a committal order and of the respondent not attending the hearing. A form of notice which may be used is annexed to this Practice Direction at Annex 3."

  56. The Civil Procedure Rules Committee might wish to consider whether the wording of the Notice should be amended so it better reflects the right to silence that a potential contemnor undoubtedly has.
  57. ground 2:
  58. The heading here is "overly wide unlawful injunction and use of civil rather than criminal prosecution". This ground in certain elements is, in my judgment, legally incoherent. One of the criticisms made is that the injunction is too broad in scope and made without limit of time.
  59. It was, in fact, made until trial or further order, which is a standard and lawful provision. The short point however, is that it is settled law that if the terms of an injunction are disputed, then the proper course is to appeal the order, but the order must be obeyed until varied or set aside: see Fennings v Humphrey [1841] 4 BEAV, [1849] ER 237239.
  60. Mr Tiernan had the opportunity to vary the order at the return date, but did not apply to do so. Nor did he appeal it. I should add that I can discern nothing unlawful or irregular in the terms of the order either as to the time of its application or as to its scope. In my view, this ground is without merit.
  61. I turn to the second aspect of this ground, which is that the Respondents have conducted a private prosecution without the appropriate safeguards.
  62. It is said Mr Tiernan is entitled to a trial by jury and the matter should have been transferred to the criminal courts for prosecution.
  63. This argument is also unsustainable. The contempt jurisdiction is separate from the criminal jurisdiction and the procedures that apply are not the same: see, for example, the observations of Wall J, as he then was, in Re: B (A Minor) (Contempt of Court) [1996] 1 WLR 627 where he said:
  64. i. "...that the analogy with criminal proceedings can be taken too far and that in civil proceedings for contempt the court will introduce those safeguards which are necessary for the protection of alleged contemnors but will not import criminal procedure wholesale or indiscriminately."

  65. It also is submitted on Mr Tiernan's behalf (in reliance on R v Horseferry Road Magistrates' Court, ex Parte Bennett [1994] 1 AC 42) that the proceedings were an abuse of the process. In my judgment however that jurisdiction, the ambit of which is narrowly circumscribed and applies where a wrongful use is made of the processes of the court itself, can have no application, even by analogy, to this application which was properly made in accordance with the Rules and then fairly conducted.
  66. Ground 3: specific challenge to the findings of breach: Mr Tiernan challenges the findings made by the judge in a number of respects. However, the evidence against him was strong; the judge correctly applied the criminal standard of proof to the evidence and in my opinion he was entitled to make the findings that the breaches in each case had been made out. I will deal however with some of the discrete matters that are raised.
  67. Breach 1: Failure to notify members of CBAG: Mr Tiernan was required by the terms of the order, made in his presence, to notify others of the fact that the order had been made via websites which were specified and by social media. I should refer to two in particular; the Stop the Cull Facebook page and the @freebrocks Twitter page. There was evidence set out in the affidavit of Mr Singfield, the solicitor for the NFU, that Mr Tiernan had control over the websites at the material time, i.e. when proceedings were issued, and that he was taking a step to frustrate the order. On 17 August 2013 the Stop the Cull Facebook page said as follows:
  68. i. "To whom it may concern "Jay Tiernan" no longer has administration authority on this page. The reasons why will become apparent in time. He hasn't done anything wrong."

  69. A tweet was made at the @freebrocks Twitter page on the same date to the same effect.
  70. Be that as it may, the judge was entitled to conclude on the evidence that the Respondents had discharged the burden of establishing that Mr Tiernan had failed to comply with the order. Mr Tiernan's argument that the judge was wrong to find him guilty of contempt because he did not have control over either the Twitter account or the Facebook page is misconceived. The order was made. He did not apply to vary it or appeal it and he failed to comply with it.
  71. Breaches 2 to 5: Harassment of Vivian Sellick: The terms of the order required Mr Tiernan, amongst other things, not to enter private land within the Cull Zone identified in the order without the consent of the landlord or owner and not to do certain things to the Protected Persons as defined.
  72. The issue raised here is whether Mr Sellick was a 'Protected Person'. The assertion that he was not or, to be more precise, that the Judge was not entitled to find that he was, is not arguable.
  73. There was evidence from Mr Sellick that he is both a farmer and land occupier who occupies land in the Cull Zone, and that he is a person who is participating in the Cull – thus, that he fell within the definition of a Protected Person. It would have been obvious to Mr Tiernan in any event, that Mr Sellick was participating in the Cull at the relevant time from the matters that can be seen on the film footage viz.
  74. Mr Sellick with a shotgun in the presence of a dead badger and in the presence of the police.Indeed, this was obviously the reason for Mr Tiernan's presence; and for his filming of Mr Sellick and his vehicle.
  75. The Judge was satisfied that this conduct amounted to a breach of the order, and he was entitled so to find.
  76. A further argument made by a reference to the Protection from Harassment Act 1997, that this was one incident and it could not amount to harassment, is misconceived. The application to commit was made by reference to the terms of the order, and it was this order which Mr Tiernan by his conduct was said to have breached.
  77. Breaches 6 to 8: Harassment of Rupert Dod: The argument here, as I understand it, is firstly that the injunction was not in force at the material time. But this argument is simply wrong. As I have already indicated, the injunction was in force up until trial or further order. Secondly, it is argued that Mr Tiernan was not actually doing the filming or holding the camera and therefore his conduct was not covered by the terms of the order. However, the order went wider than prohibiting filming. It prohibited Mr Tiernan from procuring, inciting, aiding, abetting or encouraging any other person to do any of the acts prohibited by the order, including harassment by filming. Mr Tiernan is shown 'leading the camera'; and the judge was entitled to find that this conduct amounted to a breach, whether Mr Tiernan was actually holding the camera himself or not. Thirdly, it is said that there was no indication that Mr Tiernan was within 25 metres of the protected land, in particular when he blew a whistle. There was however evidence from Mr Dod which the judge was entitled to accept, that the blowing of whistles took place about 4 or 5 metres from his land in breach of the 25 metre restriction in the order.
  78. Breach 9: Demonstrating within 25 metres of a business premises occupied by the NFU: Paragraph 3(4) of the order prohibits Mr Tiernan from knowingly picketing, demonstrating, et cetera "within 25 metres of any fixed structure occupied by people as business premises".
  79. The Judge was right, in my view, to reject the argument made to him that there was no breach because Mr Tiernan had no reason to suppose the building was in fact occupied at the time: see paragraph 28 of the judgment.
  80. The wording of the injunction prohibited the relevant activities in relation to a fixed structure used as business premises; and to that extent, the word 'occupied' was descriptive, as the Judge found. There was no requirement, that the building had in fact to be occupied, nor that Mr Tiernan had to know that it was.
  81. Mr Tear also submits, as I understand it, that the judge was wrong to draw an inference that this breach had been committed on the 17 September 2014 from a photograph, or that the date of the photograph itself could be inferred from the time it was posted on the Stop the Cull page (on 18 September 2014): see paragraph 27 of the judgment.
  82. I do not consider that the judge went wrong in this respect or that inferential evidence could not be relied upon to discharge the burden of proof, as is submitted. If authority is needed for the proposition that proof to the criminal standard can be discharged by circumstantial evidence and then by inference, it is to be found in R v W(N) [2009] 1 WLR 965 where the Court of Appeal said as follows at paragraph 19:
  83. i. "No doubt, if such an inference is prima facie there to be drawn, an evidential burden is cast on the defendant to show that after all the inference is wrong: there is another explanation for the defendant's dealing with the property. But it is surely commonplace that the presence of such an evidential burden does not reposition the legal burden of proof."

  84. For all these reasons, I would dismiss this appeal.
  85. LORD JUSTICE PATTEN: I agree.
  86. LORD JUSTICE FULFORD: I also agree.


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