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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Secretary of State for Transport & Anor v Cuciurean  EWHC 2723 (Ch) (16 October 2020)
Cite as:  EWHC 2723 (Ch)
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BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
PROPERTY, TRUSTS AND PROBATE LIST
33 Bull Street
Birmingham B4 6DS
B e f o r e :
|THE SECRETARY OF STATE FOR TRANSPORT|
|HIGH SPEED TWO (HS2) LIMITED||Claimants/Applicants|
|- and -|
Mr Adam Wagner (instructed by Robert Lizar Solicitors) for the Respondent
Hearing date: 16 October 2020
Crown Copyright ©
Mr Justice Marcus Smith:
(1) First, there are the provisions of CPR Part 81 that inform the Order that was made by Andrews J. Andrews J's Order was, of course, made prior to the coming into force of the new CPR rules. It seems to me absolutely clear, and was not gainsaid by either counsel appearing before me, that the Order made by Andrews J must be read and considered in the light of the law as it stood at the time of that Order. Any other conclusion would give an utterly unwarranted retrospective effect to the new rules and that cannot possibly have been intended without the clearest of language (and even then may have been ultra vires the rule-maker). Such clear language in no way appears in the new CPR Part 81.That, as it seems to me, is the most important point to make in relation to the new rules. The bulk of my judgment on liability, insofar as it dealt with the CPR Part 81, considered the provisions of CPR Part 81 in the light of the Order that Andrews J had made. Those parts of the judgment must stand, whatever the new provisions of CPR Part 81 say.
(2) The second aspect of the new CPR Part 81 that I must consider concerns provisions relating to the procedure or process that has informed these proceedings and this application to date. It is obvious that this application was commenced and substantially heard before the new rules came into force. The dates of the hearings before me are 30 and 31 July and 17 September 2020. It is really only the judgment on liability – handed down on 13 October 2020 – that is caught by the new rules. Thus, all of the procedural steps in this application pre-date the new CPR. It seems to me that steps taken in the application, insofar as they were formal steps prior to 1 October 2020, are matters that must be governed by the old rules of process and not the new. I am not sure that it necessarily matters in the light of the judgment that I handed down on 13 October 2020, but it seems to me clear that it would, again, import a measure of retrospectivity if the Claimants (or, indeed, Mr Cuciurean) were to be criticized or to fall foul of rules that post-date the very application that they have made or been involved in.
(3) The third aspect of the new CPR Part 81 relates to the process going forward, that is to say to matters post-dating 1 October 2020. That process, unsurprisingly, substantially concerns sanction. So far as this aspect is concerned, it seems to me that Mr Wagner is right when he says that the process going forward must be informed by the new rather than by the old rules to the extent that they affect the matters before me. I say that with a measure of trepidation, because ordinarily one would expect this to be dealt with in transitional provisions, which make precisely clear how far the old rules govern old (already commenced) processes and how far the new rules govern old (already commenced) processes. But that has not happened in this case. Although I do not think the new rules affect the matters under consideration before me today, I make clear the approach that informs me, to the extent that there is a mismatch or difference between the old and the new rules. The approach that I would take, were there such a mismatch – and I do not think there is – would be to apply the rules that are most beneficial to Mr Cuciurean. In other words, if there has been a relaxation in terms particularly of sanction in the new rules, then I should apply the new rules. But, equally, if the old rules were to be more beneficial to Mr Cuciurean, then I fail to see why he should be disadvantaged merely by the fact that the timing of my judgment on liability and the timing of this judgment was after and not before 1 October 2020.
(1) Whether there has been prejudice as a result of the contempt, and whether that prejudice is capable of remedy.
(2) The extent to which the contemnor has acted under pressure.
(3) Whether the breach of the order was deliberate or unintentional.
(4) The degree of culpability.
(5) Whether the contemnor was placed in breach by reason of the conduct of others.
(6) Whether he appreciated the seriousness of the breach.
(7) Whether the contemnor has cooperated. A genuine offer following judgment but before sentence to cooperate in the provision of information is capable of being a serious mitigating factor.
(8) Whether the contemnor has admitted his contempt and has entered the equivalent of a guilty plea. By analogy with sentencing in criminal cases, the earlier the admission is made, the more credit the contemnor is entitled to be given.
(9) Whether a sincere apology has been given for the contempt.
(10) The contemnor's previous good character and antecedents.
(11) Any other personal mitigation that has been advanced on his behalf.
(1) No principle justifies treating the conscientious motives of a protestor as a licence to flout court orders with impunity, whatever the nature or extent of the harm intended or caused provided only that no violence is used; such a principle would render court orders toothless: at .
(2) There is a distinction to be drawn between disruption caused by the side-effect of protest held in a public place and disruption which is an intended aim of the protest. In the latter case, where protesters do so in deliberate defiance of a court order, they have no reason to expect that their conscientious motives will insulate them from the sanction of imprisonment. This approach is consistent with the European jurisprudence on articles 10 and 11 of the ECHR: at  to .
(3) However, courts are frequently reluctant to make orders for the immediate imprisonment of protestors who engage in deliberately disruptive but non-violent forms of direct-action protest for conscientious reasons: at .
(4) Such acts may be properly characterised as "acts of civil disobedience", which may be defined as "a public, non-violent, conscientious act contrary to law, done with the aim of bringing about a change in the law or policies of the government (or possibly, though this is controversial, of private organisations): see e.g. John Rawls, A Theory of Justice (1971) at 364: at  to .
(5) There are at least three reasons for showing greater clemency in cases of civil disobedience. First, there is a moral difference between someone who engages in acts of civil disobedience and an ordinary law-breaker. Second, such a protestor is normally otherwise a law-abiding citizen and therefore less severe punishment is needed to deter them from further law-breaking. Third, the rehabilitative purpose is more likely to be achieved, where the court shows restraint in anticipation the defendant will respond by desisting from further breaches: at .
(6) Thus, in cases of civil disobedience which pass the custody threshold, it will often be appropriate to suspend a sentence on condition that there is no further breach during a specified period of time: at .
"My lords, civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind; but there are conventions which are generally accepted by the law breakers on one side and by the law enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience and they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police, the prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take conscientious motives of the protesters into account."
It seems to me that that captures very appositely some of the issues that arise for me today.
"1. By adhering to the conditions mentioned a person who engages in acts of civil disobedience establishes a moral difference between himself and ordinary law breakers which it is right to take into account in determining what punishment is deserved.
2. By reason of that difference and the fact that such a protester is generally, apart from their protest activities, a law abiding citizen, there is reason to expect that less severe punishment is necessary to deter such a person from further law breaking.
3. Part of the purpose of imposing sanctions, whether for a criminal offence or for intentional breach of an injunction, is to engage in a dialogue with the defendant so that he or she appreciates the reasons why in a democratic society it is the duty of responsible citizens to obey the law and respect the rights of others, even where the law or other people's activities are contrary to the protester's own moral convictions. Such a dialogue is more likely to be effective where authorities, including judicial authorities, show restraint in anticipation that the defendant will respond by desisting from further breaches."
(1) I bear the following, general points, in mind:(a) This is a case where Mr. Cuciurean has persistently breached the order some 12 separate times on the 4, 7 and 14 April 2020. This is not a case of accidental breach, it is a case of sustained, deliberate, contumacious breach.(b) This is not a case where Mr Cuciurean has expressed any remorse. Frankly, I would not expect him to do so, given the principled nature of his objections to the HS2 Scheme. Certainly I do not regard this as an aggravating factor.(c) What I must evaluate – and I will return to this in due course – is the extent to which Mr Cuciurean was willing to subordinate his entirely understandable desire to protest against the HS2 Scheme against the primacy of the rule of law as represented by the Order of Andrews J. Here I find that Mr. Cuciurean has, up to the date of this application at least, evinced quite the reverse order of priority. He has quite deliberately set himself against an extremely clear order and so has undermined, indeed flouted, the rule of law. That is something that I weigh very heavily indeed.(d) There could have been more invasive and aggressive protests. In this case Mr Cuciurean breached the perimeter fencing on a number of occasions despite being told that in doing so he was in breach of the Order (Incident 1). Mr Cuciurean himself removed clips from the fencing (Incident 6). He was a member of a group of protesters who removed fencing panels (Incident 8). That said, he also left the Crackley Land peacefully on a number of occasions, when asked to do so by enforcement officers. As regards these incidents, which are the only ones I take into account, whilst there clearly was much more than de minimis disruption to the work of the Claimants, indeed I find that it was material disruption well above the de minimis, there is no evidence that the Claimants suffered major disruptions on account of the incidents that I have found were contempts.
(2) Turning to the list of factors set out in McKendrick (see paragraph 12 above):(a) There has, as I have described, been some prejudice to the Claimants above the de minimis level but below the level of major disruption (paragraph 12(1) above).(b) Mr Cuciurean has acted entirely voluntarily (paragraph 12(2) above). The evidence is that he came to the Land after the other protesters had been evicted from Camp 1 so as to carry on the protest by other means.(c) Turning to the third, fourth, fifth and sixth factors in the list (paragraphs 12(3) to 12(6) above), the breaches of the Order were, as I have found, deliberate and intentional. Mr Cuciurean's personal culpability is high. He acted on his own in the sense that he was the master of his own fate, he made his own choices. There were of course others involved, but Mr Cuciurean acted in accordance with his own lights and he appreciated the seriousness of his conduct.(d) Turning to the factors at paragraphs 12(7), (8) and (9), Mr Cuciurean has cooperated in the sense that he has appeared, quite properly, in this court and has behaved in a properly respectful manner in these proceedings. But he has not cooperated in the sense of accepting the points that have been made against him. To the contrary, as was his right, he has raised a number of points regarding his culpability which I have had to consider. Neither has he admitted his contempt, nor has he apologised. Given Mr Cuciurean's views, I regard these as neutral or ameliorating factors.(e) I treat Mr Cuciurean as a person of good character (paragraph 12(10)).
(3) If this were an ordinary case of disobedience to the Order, independent of M Cuciurean's reasons for acting (i.e., his principled opposition to the HS2 Scheme), this serial flouting of a straightforward order of the court would rank at or close to the maximum punishment that this court could order. In short, if this were an ordinary case, I would be looking at a term of imprisonment of well in excess of one year. It seems to me, leaving out of account altogether the civil liberties aspects of this case, the sentence that I would be minded to impose would be one of 18 months' imprisonment. But this is not an ordinary case and I must bear in mind the approach taken by the Court of Appeal in Cuadrilla.
(4) However, factoring in these aspects, and having Cuadrilla specifically in mind, there are some aggravating factors to this case. Mr Cuciurean's culpability, as reflected in his determination to protest whatever the consequences, and the related repeated nature of the breaches are specific to this case. So, although this is undoubtedly a case of civil disobedience, Mr Cuciurean's acts are not a public non-violent conscientious act contrary to law done with the aim of bringing about a change in the law or policies of the Government. Public and conscientious, yes. Non-violent? Just about, although there has been clear physical invasion of another's land and some physicality in the Incidents that I have described. Aiming to bring about a change in law or policy? Perhaps, but only marginally or only by making the project so expensive that the political will to continue it evaporates or diminishes.
"It is the judges, as we have seen, that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of you wait until he does it and then you beat him for it. This is the way you make laws for your dog and this is the way the judges make law for you and me. They won't tell a man beforehand what it is he should not do. They won't so much as allow you of his being told. They lie by till he's done something which they say he should not have done and then they hang him for it."
I anticipate that Mr Wagner had his tongue slightly in his cheek when he quoted this passage in his written submissions, because the common law, contrary to what Mr Bentham thought, proceeds in an incremental way. There are not intended to be surprises in the way the common law evolves. It is the whole point of the common law that it develops and reacts to events in society and reflects them in a manner proportionate and unsurprising to the members of that society.
That for a period of 12 months commencing from the date of this order, Mr Cuciurean comply with any order of a court in England and Wales endorsed with a penal notice and enjoining, however phrased, entry upon any land by persons including, whether named as a defendant or as a person unknown, Mr Cuciurean.
Note 1 A number of these factors were also referred to in Crystalmews Ltd v Metterick  EWHC 3087,  per Lawrence Collins J. [Back] Note 2 Willoughby at  (per Pitchford LJ). [Back] Note 3 The two cases referred to in the judgment areKudrevicius v. Lithuania, (2016) 62 EHRR 34 andSteel v. United Kingdom, (1999) 28 EHRR 603. The former concerned a demonstration by a group of farmers complaining about a fall in prices of agricultural products and seeking increases in state subsidies. As part of their protests, the caused 48 hours of major disruption to traffic. The farmers received suspended sentences of 60 days’ imprisonment and appealed on the basis that the sentences violated articles 10 and 11 ECHR. The Grand Chamber noted that the disruption caused was the result of intentional action () and therefore saw nothing disproportionate in the sentence (described as “lenient” (at )). The latter case concerned a protestor who had intentionally obstructed a member of grouse shoot by placing herself in front him as he lifted his shotgun. The protestor was convicted of a public order offence, fined, and bound over. Having refused to be bound over, she was committed to prison for 7 days. The Court held those measures were proportionate to the legitimate aims of preventing disorder, protecting the rights of others and maintaining the authority of the judiciary. [Back]
Note 1 A number of these factors were also referred to in Crystalmews Ltd v Metterick  EWHC 3087,  per Lawrence Collins J. [Back]
Note 2 Willoughby at  (per Pitchford LJ). [Back]
Note 3 The two cases referred to in the judgment areKudrevicius v. Lithuania, (2016) 62 EHRR 34 andSteel v. United Kingdom, (1999) 28 EHRR 603. The former concerned a demonstration by a group of farmers complaining about a fall in prices of agricultural products and seeking increases in state subsidies. As part of their protests, the caused 48 hours of major disruption to traffic. The farmers received suspended sentences of 60 days’ imprisonment and appealed on the basis that the sentences violated articles 10 and 11 ECHR. The Grand Chamber noted that the disruption caused was the result of intentional action () and therefore saw nothing disproportionate in the sentence (described as “lenient” (at )). The latter case concerned a protestor who had intentionally obstructed a member of grouse shoot by placing herself in front him as he lifted his shotgun. The protestor was convicted of a public order offence, fined, and bound over. Having refused to be bound over, she was committed to prison for 7 days. The Court held those measures were proportionate to the legitimate aims of preventing disorder, protecting the rights of others and maintaining the authority of the judiciary. [Back]