Divisional Court Hears Second Application to Commit ‘Insulate Britain’ Protestors

On 14^th – 15^th December 2021, the Divisional Court heard a second committal application by National Highways Limited against nine ‘Insulate Britain’ protestors following breach of an injunction granted by Lavender J on 21 September 2021. The injunction was made in proceedings related to National Highways’ claim for possession, trespass and nuisance, and injunctive relief restraining entry onto the M25 motorway. The application was brought against eight of the defendants following their involvement in an ‘Insulate Britain’ protest on 27^th October 2021 in which they took part in a road-block protest on the Littlebrook Interchange, on the A206 junction with Junction 1A of the A282/M25 (northbound) (which includes the Dartford Crossing and Queen Elizabeth Bridge). In respect of the ninth defendant, the application was also brought in light of his additional involvement in a protest on 8^th October 2021 on the Waltham Cross Interchange roundabout at Junction 25 of the M25 Motorway, which was considered in the first contempt proceedings and on which the Court gave judgement in National Highways Limited v Ana Heyatawin and others [2021] EWHC 3078 (QB). The Divisional Court heard from National Highways and the nine defendants, all of whom admitted breach of the injunction. The Court was satisfied that that the evidence presented established to the criminal standard that the defendants:

• knew of the order;
• committed acts which breached the order; and
• knew that they were doing acts which breached the order

Given this, the Court found all nine defendants in contempt of court. As to sanction, the Court followed the approach as set out in Heyatawin at [49]. It also considered the principles as established in Secretary of State for Transport v Cuciurean [2020] EWHC 2723 (Ch) at [9] to [20] at first instance, Cucicurean v Secretary of State for Transport [2021] EWCA Civ 357 at [16] to [18] on appeal, Cuadrilla Bowland-Lawrie Ltd v Persons Unknown [2020] EWCA Civ 9 [2020] 4 WLR 29 at [97] to [99] and [102] to [104], Liverpool Victoria Insurance Co Ltd v Zafar [2019] EWCA Civ 392 at [57] to [71] and Attorney General v Crosland [2021] UKSC 15,  and had regard to the extent of harm (intended or likely), the level of culpability and to the fact that the protest involved civil disobedience on conscientious grounds in accordance with R v Jones (Margaret) [2007] AC 136 at [89] and R v Roberts (Richard) [2018] EWCA Crim 2739 at [34]. On 15^th December 2021, the Court handed down judgement. The Court considered: (1) that all defendants accepted that they breached the order at the first reasonable available opportunity; (2) that there were no ongoing protests and had been none for more than 3 weeks; (3) the fact their contempt arose in the context of protests and those protests had stopped was a particularly relevant issue for sanction in light of the principled aim of the sentencing being to ensure compliance; (4) that the kind of dialogue referred to in Cuadrilla had begun to take place; (5) if imprisoned, the defendants will be serving their custodial sentences in the worsening COVID-19 pandemic, which makes prison conditions more difficult; and (6) the defendants’ submissions and the circumstances of each defendant individually. Given this, the Court sanctioned:

• one defendant to an immediate prison term of 4 months given her initial failure to appear at the hearing, which required the issue of a bench warrant;
• one defendant, who was already in prison for his involvement in the 8 October protest, to an additional prison term of 30 days;
• one defendant, who had now been found in contempt following his involvement in both the 8 October and 27 October protests, to a suspended prison term of 3 months;
• the other six defendants to a suspended prison term of 2 months.

Having considered each defendant’s means and conduct in the proceedings, the Court ordered each individual to pay National Highways’ costs of the application summarily assessed in amounts ranging from £500 to £6,000. Myriam Stacey Q.C. and Joel Semakula appeared for National Highways in both sets of contempt proceedings. The judgement can be found here. Press reports can be found here.