Court of Appeal issues important judgment in conscientious protester Elliott Cuciurean’s appeal
The Court of Appeal has today allowed the appeal of Elliott Cuciurean in part, quashing the £3,000 fine imposed by Mr Justice Ritchie, but maintaining his 268-day sentence of imprisonment. The Court also made a number of criticisms of the High Court Judge’s handling of the appeal, which it described as “unprincipled”.
Unusually, the Court was divided on whether Mr Cuciurean was bound by the “persons unknown” injunction but ruled by a 2-1 majority that he was.
The case raises important issues as to when protesters can be found in breach of “persons unknown” injunctions and how they should be sanctioned.
The High Court proceedings
Elliot Cuciurean is a committed protester against HS2 which he considers is causing irreversible and unjustified damage to the environment. In In September 2022, Mr Justice Ritchie in the High Court found Mr Cucuirean in contempt of an order which prohibited tunnelling under HS2 land at Cash’s Pit in Warwickshire, imprisoned for 268 days and imposed a fine of £3,000. He found that Mr Cucuirean had taken part in a protest by tunnelling under Cash’s Pit for 46 days.
Mr Justice Richie also refused to consider an argument raised by Mr Wagner on Elliott’s behalf that the wording of the order did not bind him, because he was not named (unlike 19 other defendants) in the injunction and could not be a "persons unknown” because he was a named defendant in the proceedings. The Judge ruled it had been brought too late. He described the argument as "strained, subjective, inappropriate and wrong”. After the argument was made, but before ruling upon it, Mr Justice Ritchie informed Mr Cucuirean, through his counsel, that if he pursued it he might be penalised for doing so when being sanctioned.
Mr Cuciurean appealed to the Court of Appeal on both liability (on the basis that he was not bound by the order) and sanction.
The Court of Appeal’s judgment
The Court of Appeal (Lord Justices Coulson, Edis and Phillips) allowed the appeal in part:
The Court unanimously quashed the £3,000 fine, ruling that it was "not appropriate to fine the appellant.... He has no assets, and was the subject of a term of immediate custody... a fine is usually inappropriate for an impoverished protestor serving a term of imprisonment” (paragraph 93).
In addition to quashing the fine, the Court criticised various aspects of how the High Court Judge had managed the case:
- The Judge should not have dismissed Mr Cuciurean’s submission on the meaning of the injunction on a matter of procedure. The Judge “erred” by dismissing Mr Cuciurean’s argument as a matter of procedure (paragraph 31).
- It was “erroneous” for the Judge to treat the raising of an argument on the construction of the injunction as relevant to Mr Cuciurean’s “insight” (paragraph 59)
- The Judge had “no right to offer some sort of ‘deal’ to the appellant or to suggest that, if the appellant pursued his argument on liability, he might be penalised for doing so”. This was an “unprincipled approach which might have prevented a defendant from ventilating a legitimate defence”. It should “not have happened” (paragraph 62) and was “quite wrong” (paragraph 101).
- It was not appropriate for the judge to impose a “tariff” in calculating days he would spend in prison (paragraph 94).
Despite these criticisms, the Court ruled that the sentence of 268 days imprisonment for breach of the injunction was not manifestly excessive so did not overrule it.
The liability issue
The Court of Appeal was split on the issue of whether the injunction bound Mr Cucuirean or not. Lords Justice Coulson and Edis, in the majority, ruled that he was bound because even though there was an alternative “plausible” interpretation of the order which did not bind Mr Cuciurean, it was “clear and sensible” to interpret as if he was bound.
Lord Justice Phillips disagreed. He agreed with Mr Cucuirean’s case that the order did not bind him, because he could not be both a named defendant to the proceedings and also be caught by the part of the injunction which bound “persons unknown”. He ruled:
"It is plain that D33 is not only a “known” person for the purposes of the proceedings and the Order, but is “known” as a person who may subsequently enter the CPL, as expressly referenced (and for which relief is granted) in paragraph 6 of the Order. In those circumstances, I cannot see how D33 could fall within the definition of person unknown within the rubric of D1."
Permission to appeal to the Supreme Court
Mr Cuciurean was refused permission by the Court of Appeal to appeal to the Supreme Court on the "liability issue”.
Tim Moloney K.C. and Adam Wagner of Doughty Street Chambers were instructed on behalf of Elliott by Nicola Hall of Robert Lizar Solicitors. The full judgment can be found here (Cuciurean v Secretary of State for Transport & Anor [2022] EWCA Civ 1519).
