Adam Wagner acts for peaceful protester in HS2 contempt proceedings

The High Court in Birmingham has today handed down the first of two judgments in a case brought by HS2 Limited and the Secretary of State for Transport against Elliott Cuciurean, a young man engaged in peaceful protests against the destruction of ancient woodland and wildlife is a consequence of the HS2 development.

The application relates to seven incidents which occurred between 4 and 26 April 2020. Mr Justice Marcus Smith refused HS2’s application in respect of four incidents (15, 17, 21 and 26 April), including high-profile incidents which were reported in the press, and allowed it in respect of three incidents (4-5 April, 7 April and 14 April).

Adam Wagner is acting for Mr Cuciurean instructed by Nicola Hall of Robert Lizar Solicitors.

You can download a copy of the judgment here

Press release from Robert Lizar Solicitors 

This is an important case as it concerns the risks to protestors and local people where large corporations and public authorities take out injunctions against “persons unknown” to prevent protest. The case marks the first time that HS2 have applied for a peaceful protester to be committed to prison for contempt of court and is seen to be a test case which could lead to a number of further similar applications by HS2.

Although we are disappointed that any findings of contempt were made for the reasons explained below, we are pleased that the Judge did not find that the most serious allegations of contempt were proven. The allegations that were found proven were where Mr Cuciurean was acting in a peaceful manner within a few feet of HS2’s fencing, in the context of a site which was miles wide.

In respect of the four applications for contempt which were rejected, the Judge accepted Mr Cuciurean’s argument that HS2 had failed to prove to the required standard that the incidents occurred on its land. HS2’s evidence on the location of the boundaries was given “no weight” by the Judge because HS2’s witness on this issue “simply did not recognise the affidavit he had sworn, and parts of it appeared to have been written for him” (paragraph 12).

The Judge also found that he would not be satisfied beyond reasonable doubt that HS2 had complied with the terms of the injunction order requiring notices of the order be regularly checked (paragraph 72) and was concerned that the closure of public footpath on the land, without opening a diversion as had been agreed with the local council, may well have been a breach of HS2’s public law powers (paragraph 117).

The judge relates to ‘liability’ only. There will be a further hearing this Friday to determine what sanction, if any, will be applied to Mr Cuciurean.

Further detail

The case raises important and concerning issues in relation to whether a person can found in contempt of an order which they did not know the full terms of:

a.     The Judge accepted that Mr Cuciurean had never been personally handed a copy of any Court Order. 

b.     He found that the strict terms given by the original Judge in relation to how the Order was advertised had not been complied with fully

c.     He found that he could not say that Mr Cuciurean knew the full terms of the order (paragraph 124). 

Nevertheless, the Judge did find in relation to some of the alleged incidents that Mr Cuciurean was in contempt of court.  

The judgment suggests that where a person may breach an Order not even knowing that the Order exists then that person may have to demonstrate that it would be unfair for the Order to work against them.

We are concerned about the apparent conclusion that in cases such as these the burden of proving that there was no contempt of court has passed to the person accused of contempt, which reverses the usual and long established burden of proof in such cases. 

Persons unknown injunctions are taken out by large corporations and public bodies who are well financed to use highly paid commercial lawyers.   There is no public funding at the time these Orders are taken out to oppose.  It is very difficult for people of ordinary means to argue against Injunction Orders being taken out.

It is therefore of great concern if peaceful protestors and local people may find themselves facing expensive and complicated legal proceedings without knowing they were doing anything wrong.

The implications of injunctions such as this against the public at large will be further considered.