Court of Appeal halves sentence in HS2 “civil disobedience” protester appeal

The Court of Appeal has today handed down judgment, allowing an appeal in part in contempt proceedings brought by HS2 Limited against Elliott Cuciurean. Nicola Hall of Robert Lizar Solicitors, instructing Heather Williams Q.C. and Adam Wagner of Doughty Street Chambers, acted for Elliot Cuciurean.

In October 2020, Elliott was found in contempt of Court for trespassing on HS2’s land whilst protesting against the destruction of ancient woodland and wildlife caused by the HS2 development. He was sentenced to six months imprisonment, suspended for a year. The Court of Appeal today allowed the part of the appeal relating to sentence, halving the sentence to three months imprisonment, suspended for a year, on the basis that the Judge had not taken full account of the fact that Elliott was engaged in civil disobedience.

The Court of Appeal confirmed the important principle that people involved in civil disobedience must be shown greater leniency by the courts when being sentenced, following its previous judgment in Cuadrilla Bowland Ltd v Persons Unknown [2020] EWC Civ 9 (a case in which Adam Wagner also acted, led by Kirsty Brimelow Q.C).

The Judgment can be found here.

Detail

This is an important case as it concerns the risk to protestors and local people where large corporations take out injunctions against “person unknown” to prevent protest.

In the High Court proceedings, the Judge accepted that Elliott Cuciurean had never been personally handed a copy of any court order.  He also found that the strict terms given by the original Judge in relation to how the order was advertised had not been complied with fully. Despite this the High Court did found in relation to some of the alleged incidents that Elliott Cuciurean had been in contempt of Court, although it dismissed a number of more serious allegations because HS2 did not provide sufficient evidence that they took place on their land. Elliot was sentenced by the High Court to 6 months imprisonment, suspended for 12 months. 

The Court of Appeal found that on the facts of this case , the Judge had been able to find a contempt of court and dismissed aspects of the appeal relating to the precise boundaries of the site and the requisite knowledge of the defendant. 

It also, however, criticised the High Court’s Judge’s approach to sentencing and particularly that (1) his starting point was too high in light of the seriousness of the incidents, and (2) he had failed to properly take in to account that Elliot was engaging in “civil disobedience”, that is “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”. This is a category of people who the Courts have said should be shown clemency – a principle arising from the 2020 case (Cuadrilla) in which Nicola Hall and Adam Wagner also acted.