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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Breen & Ors v Esso Petroleum Company Ltd [2022] EWCA Civ 1405 (26 October 2022) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/1405.html Cite as: [2022] EWCA Civ 1405 |
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ON APPEAL FROM
MR JUSTICE RITCHIE
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BAKER
and
LORD JUSTICE DINGEMANS
____________________
Breen & others |
Appellant |
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- and - |
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Esso Petroleum Company Limited |
Respondent |
____________________
Timothy Morshead KC (instructed by Eversheds Sutherland International LLP) for the Respondent
Hearing date: 20 October 2022
____________________
Crown Copyright ©
LORD JUSTICE COULSON:
1.Introduction
2. The Law
2.1 The Correct Approach to Sanctions in Contempt Cases
"44. General guidance as to the approach to penalty is provided in the Court of Appeal decision in Liverpool Victoria Insurance Co Ltd v Khan [2019] EWCA Civ 392; [2019] 1 WLR 3833, paras 57 to 71. That was a case of criminal contempt consisting in the making of false statements of truth by expert witnesses. The recommended approach may be summarised as follows:
1. The court should adopt an approach analogous to that in criminal cases where the Sentencing Council's Guidelines require the court to assess the seriousness of the conduct by reference to the offender's culpability and the harm caused, intended or likely to be caused.
2. In light of its determination of seriousness, the court must first consider whether a fine would be a sufficient penalty.
3. If the contempt is so serious that only a custodial penalty will suffice, the court must impose the shortest period of imprisonment which properly reflects the seriousness of the contempt.
4. Due weight should be given to matters of mitigation, such as genuine remorse, previous positive character and similar matters.
5. Due weight should also be given to the impact of committal on persons other than the contemnor, such as children of vulnerable adults in their care.
6. There should be a reduction for an early admission of the contempt to be calculated consistently with the approach set out in the Sentencing Council's Guidelines on Reduction in Sentence for a Guilty Plea.
7. Once the appropriate term has been arrived at, consideration should be given to suspending the term of imprisonment. Usually the court will already have taken into account mitigating factors when setting the appropriate term such that there is no powerful factor making suspension appropriate, but a serious effect on others, such as children or vulnerable adults in the contemnor's care, may justify suspension."
2.2 Particular Considerations in Protestor Cases
"53. In some contempt cases, there may be scope for the court to temper the sanction imposed because there is a realistic prospect that this will deter further law-breaking or, to put it another way, encourage contemnors to engage in the dialogue described in Cuadrilla with a view to mending their ways or purging their contempt. However, it is always necessary to consider whether there is such a prospect on the facts of the case. In some cases, there will be. In some cases, not. Moreover, it is important to add, that "there is no principle which justifies treating the conscientious motives of the protestor as a licence to flout court orders with impunity": Attorney General v Crosland [2021] UKSC 15, at [47]."
"47. The respondent was motivated by his concerns and fears relating to the consequences of global warming and his disagreement with the decision of the Supreme Court. However, this does not begin to justify his conduct. There is no principle which justifies treating the conscientious motives of a protester as a licence to flout court orders with impunity. It was, moreover, a futile gesture as the judgment would in any event have been available some 22 hours later for scrutiny and criticism by the media and the public. However, we do accept that greater clemency is normally required to be shown in cases of civil disobedience than in other cases; see Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9; [2020] 4 WLR 29 and Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357"
2.3 The Relevance Of Other Authorities
"33 Mr Maguire referred in his skeleton argument, by way of contrast, to a wide variety of other cases including some in the JSC BTA Bank saga. I derive no assistance from any of them and I deprecate the citation of cases which are really said to be precedents or guidance on the facts. Each case, particularly of committal, depends on its own facts, and a comparison with the facts of other cases, unless they are so closely related as to be in effect the same case, where there might conceivably be arguments as to inconsistency between different contemnors in relation to the same contempt, seems to me to be altogether unhelpful."
I agree with that. Extensive citation of authority to compare penalties, as opposed to setting out relevant principles, is particularly inappropriate in contempt cases, because they vary so widely in context and fact.
2.4 Suspension or Not?
2.5 Standard of Review on Appeal
3.The Contempt in Detail
3.1 History
"The location of the pit/intended tunnel to the east of Pannell's Farm has been chosen to disrupt the [respondent's] works to construct that section of the SLP pipeline, part of which will extend below the M25 motorway. This section of the works depends upon specialist plant and equipment having access across the land where the pit has been constructed…the location of the pit means [the respondent] is no longer able to use the access track. This is currently preventing vehicular access required for the preparation of the schedules construction of the horizontal directional drill under the M25 and will subsequently obstruct the construction of the pipeline at the pit site."
3.2 The Order of Eyre J.
"2. The First Defendant shall remove his person and possessions within 72 hours of service of this order from any and every excavation he has made within the DCO order limits.
3. Until trial or further order, the First and Second Defendants must not do any of the acts listed in paragraph 4 of this order in express or implied agreement with any other person, and with the intention of preventing or impeding construction of the Southampton to London Pipeline Project.
4. The acts referred to in paragraph 3 of this order are:
(1) within the DCO order limits, damaging anything which is used or to be used in or in the course of the construction of the SLPP;
(2) within the DCO order limits, traversing any fence surrounding (or other physical demarcation of) any area of land which is used or to be used in or in the course of the construction of the SLPP;
(3) within the DCO order limits, digging any excavation or affixing or locking themselves to anything or any person;
(4) within the DCO order limits, erecting any structure;
(5) within the DCO order limits, spraying, painting, pouring, depositing or writing any substance on to anything which is used or to be used in or in the course of the construction of the SLPP;
(6) within the DCO order limits, obstructing construction of the SLPP by their presence or activities after having been requested by or on behalf of the Claimant or the police to cease and desist from such obstruction;
(7) whether within or without the DCO order limits, blocking or impeding access to any land within the DCO order limits.
(8) assisting any other person do any of the acts referred to in sub-paragraphs 3.1 to 3.7.
5. A Defendant who is ordered not to do something must not:
(A) do it himself/herself/themselves or in any other way.
(B) do it by means of another person acting on his/her/their behalf, or acting on his/her/their instructions, or by another person acting with his/her/their encouragement"
The DCO covered the entirety of the SLP Project, and not just the site at Pannell's Farm.
3.3 The Contempt
"He [the appellant] has plenty of experience of this kind of action, having spent the last 10 years campaigning full time. He previously spent 20 days in the tunnel protestors built outside Euston Station to protest the new HS2 rail-link, and he has participated in various anti-fracking campaigns. These previous actions have meant that he now has a criminal record, but he insists he will keep on taking action. 'I've always been fighting the oil industry' he said. 'There needs to be an immediate transition into renewable energy'."
4. The Judge's Judgment
"32. I find as a fact that the Defendant's approach to the Court order was to flout it continuously and contumeliously, to publicise that he was flouting it and to worsen an already serous situation by building an unsafe wooden structure so that the police were unlikely to arrest him due to their potential to suffer injuries when climbing the unsafe structure.
33. I find that the Defendant refused to engage in the civil process which led to the injunction and refused to comply with the injunction intentionally and I find that he refused to comply with the warrant for the arrest issued by Williams J. Indeed, up until the morning of the hearing the Defendant was still trying to wriggle his way out of his responsibility for his breaches by suggesting that he thought the injunction only applied to order him out of the pit and permitted him to continue obstructing the progress of the construction of the pipeline in his wooden structure."
"51. I find that your breaches are particularly serious in view of the huge cost of the project and the number of subcontractors that need to be organised to achieve success in the project, and also in view of the environmental factors that need to be taken into account to determine when the work is done at various sites by the Claimant. Taking into account the prejudice to the Claimant and the harm to them, I find (without having been given precise figures) that the prejudice is likely to be in the tens of thousands of pounds and possibly in the hundreds of thousands of pounds.
52. Taking into account the question of whether you are acting under pressure or force from other people, or whether the conduct of others has pushed you into acting in the way that you have, I find that you, the Defendant, have carried out all your actions wholly independently, and intentionally.
53. Looking at whether your acts were deliberate or intentional, I consider that all of your actions, including the publicity, the posting of the first page of the injunction on social media, the avoiding of arrest and the failure to turn up at Court, were intentional.
54. As to culpability, I consider that your culpability is high. Not only did you intend to damage the Claimant's business, you intended to waste the time of the High Court bailiffs, the police and the Court Services by failing to engage sensibly and maturely in complying with the Court injunction and with the Court process.
55. In relation to insight, I consider that your witness statement dated 6th December discloses very little insight into the effects of your actions on others. You have not convinced me on the balance of probabilities that you have any insight into the damage you caused to those around you and the waste of money you caused to the emergency services, the police and the Court Service.
56. In relation to cooperation, as set out above, the Court is astute to be involved in a dialogue with conscientious protestors, and indeed to permit a reduction in the severity of sanctions where conscientious objectors are non-violent, cooperative, mature and interactive in their approach with the Courts. You have not been any of those. Quite the opposite. You have been arrogant, dismissive, and have sought to cause chaos by failing to engage in the process.
57. In relation to aggravating factors, I consider that those include refusing to leave for 16 to 17 days; building a structure after service of the Court order; social media posts taunting the Court's order and encouraging the public effectively to do the same; refusing to comply with a warrant for arrest; putting in a witness statement seeking to hoodwink the Court and refusing to listen to verbal warnings given by the security guards."
a) The judge allocated 5 days imprisonment for each of the days during which the appellant refused to comply with the order of Eyre J. That gave rise to a period of 80 days (5 x 16);
b) The judge added at [63] 21 days imprisonment for each of the five aggravating factors that he identified, namely:
"(i) building a structure on the land after service of the injunction;
(ii) social media posts in effect encouraging the public to disobey Court orders;
(iii) refusing to comply with the warrant for arrest;
(iv) putting in a witness statement seeking to hoodwink the Court;
(v) refusing to listen to verbal warnings given by security guards."
c) That produced a further 105 days (5 x 21), making a total of 185 days;
d) There was then a reduction of 40% for mitigation, leaving a net period of 112 days imprisonment.
"66. Should that sentence be suspended? The Sentencing Guidelines urge this Court to weigh up the following factors:
(1) Whether the offender presents a risk or danger to the public. I consider you do. I consider that you think you are not bound by the law and you will do what you want. That means that you continue to be a danger to Esso and any other petrochemical company in times when in this country we may have inadequate supplies for heating of houses, schools, hospitals, churches and other establishments.
(2) Whether the appropriate punishment can only be achieved by immediate custody. I believe that is the only appropriate punishment, for you have publicised that you do not care about Court orders and urged that people should breach Court injunctions.
(3) Whether there is a history of poor compliance with Court orders. I have not majored on your antecedents as set out and agreed in the facts, but I do take those into account when looking at the history.
(4) Whether there is a realistic prospect of rehabilitation. You have rehabilitated yourself from one of the greatest challenges in life, which was drugs. You have the Court's sincere congratulations however you will need to rethink your approach on how you protest.
(5) Whether there is strong personal mitigation. I am hugely impressed by your getting off drugs, more power to you, stay off, but this is a bandwagon you may have to get off as well.
(6) Whether immediate custody will result in significant harmful impact upon others. That does not really apply in your case."
5 Ground 1: Wrong in Principle
6. Ground 2: Unreasonable Custodial Sanction
6.1 Length of Term
6.2 Weighing the Aggravating and Mitigating Factors
6.3 Suspension
"54 (b) As far as harm is concerned, it is important to focus on both the harm actually caused and the harm intended or likely to be caused by the breach. In both respects, the location of the breach and the nature and number of people who would foreseeably be affected by it are critical. Unlike the events the court had to consider in Cuadrilla and Cuciurean, this was not a protest directed at a specific activity taking place on private land. It was a protest on the slip road of a busy motorway at rush hour on a weekday. The protest affected and was intended to affect large numbers of ordinary members of the travelling public. In other words, harm was not the by-product of the protest; its very objective was to cause harm and disruption to as many ordinary members of the public as possible to bring attention to the cause the defendants advocated.
…
58 The harm caused by breach of the court's order therefore goes beyond the inconvenience and economic damage we have mentioned. By deliberately defying the M25 Order, these defendants broke the social contract under which in a democratic society the public can properly be expected to tolerate peaceful protest. This was bound to give rise to frustration and anger, which carried with it the prospect that the defendants' own safety and the safety of others would be put at risk; and that members of the community might take the law into their own hands in trying to deal with the disruption the protest had caused. We consider this a proper inference to draw from all the evidence we have seen, including the proximity of the protestors to heavy traffic at a busy time of day before the police arrived and the attempts of some of the defendants to go back into the road when traffic started flowing again."
6.3 Summary
7. Ground 3: The Fine
LORD JUSTICE JONATHAN BAKER
LORD JUSTICE DINGEMANS
Note 1 This provision has long been the subject of judicial criticism: see, for example, Jackson LJ in Thursfield v Thursfield [2013] EWCA Civ 840, where at [45], he said “it may be thought that persons who have been committed to prison for contempt should only be entitled to appeal with permission.” [Back] Note 2 Section 14(1) of Contempt of Court Act 1981. [Back] Note 3 The need to ensure that the SLP Project was carried out at different sites at different times was necessary to minimise environmental consequences. As happened on HS2, if protests cause delay, they can upset that delicate environmental balance. [Back] Note 4 The guideline says “risk/danger to the public”. There was no evidence of any danger posed by the appellant. [Back] Note 5 See, for example, R v Middleton [2019] EWCA Crim 663, and R v S [2022] EWCA Crim 1362 [Back]