Tim Moloney QC and Adam Wagner act in important Supreme Court protest rights case

The Lord Chief Justice has granted leave to appeal to the Supreme Court in the important protest rights case of Cuciurean v DPP.

Tim Moloney QC and Adam Wagner of Doughty Street, and Blinne Ní Ghrálaigh of Matrix Chambers, instructed by Nicola Hall of Robert Lizar Solicitors, act for the appellant Elliot Cuciurean. Elliott is an environmental activist who has been protesting against the environmental impact of HS2.

He was initially acquitted in the Magistrates Court of aggravated trespass, then had his acquittal overturned in the Divisional Court by the Lord Chief Justice, Lord Burnett, and Mr Justice Holgate in Director of Public Prosecutions v Cuciurean [2022] EWHC 736 (Admin)

Following an application by Mr Cuciurean, the Lord Chief Justice has, unusually, certified points of law of public importance and directly granted leave to appeal to the Supreme Court. The LCJ has also asked the Supreme Court to expedite the appeal given its importance.

The certified questions are:

(1) Does the Human Rights Act 1998 require a court when determining a charge of aggravated trespass contrary to section 68 of the Criminal and Public Order Act 1994 to undertake a proportionality assessment when the actions under scrutiny occurred during a protest?

(2) What are the circumstances in which a court is required to carry out a proportionality assessment when determining a criminal charge when the actions alleged to constitute the actus reus of the offence occurred in the course of protest?

(3) What principles should a court apply both at first instance and on appeal when a proportionality assessment is required?

The appeal is likely to be one of the most important cases involving the human right to protest in recent years and will consider how the Human Rights Act applies in relation to a range of criminal offences.

The full leave to appeal decision can be found here.