Tiernan & Ors v National Farmers Union & Ors

An unrepresented respondent to civil committal proceedings must be made aware of the possible availability of criminal legal aid and given a reasonable opportunity to obtain legal advice. Compliance with those safeguards will ordinarily prevent unfairness where the respondent does not pursue representation and identifies no resulting prejudice.

An injunction must be obeyed unless and until it is varied or set aside. Civil contempt proceedings remain distinct from a criminal prosecution, although the court must provide safeguards appropriate to their penal consequences. Contempt may be proved to the criminal standard by circumstantial evidence and proper inferences without shifting the legal burden of proof.

The appellant was a spokesman for an unincorporated association opposing the culling of badgers. An interim injunction restrained him and others from trespass, harassment, filming and publication of identifying information concerning persons involved in the cull.

Sir David Eady in the High Court found nine breaches of the injunction proved and imposed six months’ imprisonment, suspended for two years. The appellant appealed against the contempt findings. He alleged unfairness arising from his lack of representation, challenged the injunction and the use of committal proceedings, and disputed particular findings of breach.

The central issues were whether the committal process was fair and whether the evidence and the terms of the injunction justified the findings of contempt.

1. Appeal dismissed. Lady Justice Sharp gave the judgment, with which Lord Justice Patten and Lord Justice Fulford agreed. Sir David Eady was entitled to find all nine breaches proved to the criminal standard.

2. There was no breach of Article 6. The respondents had complied with paragraph 15.6 of the Practice Direction to CPR Part 81. They had informed the appellant about possible legal aid, provided relevant links, and supported an adjournment of five months so that he could seek representation. They were not required to become his legal advisers. The court left open whether King’s Lynn and West Norfolk Council v Bunning, [2013] EWHC 3320, correctly decided that High Court committal representation is available regardless of means.

3. An alleged contemnor has a right to remain silent: Comet Products UK Ltd v Hawkex Plastics Ltd, [1971] 2 QB 67. On these facts the appellant knew of, and consciously exercised, that right. No adverse inference was drawn, so an express additional warning could not have caused prejudice. The court nevertheless suggested that the Civil Procedure Rules Committee consider whether the prescribed notice should better reflect that right.

4. The injunction could not be attacked as a defence to contempt. A person bound by an injunction must obey it until it is varied or set aside: Fennings v Humphrey, [1841] 4 BEAV. The order was until trial or further order, and the appellant neither applied to vary it nor appealed. Civil contempt is not a private criminal prosecution. It is a separate jurisdiction which imports necessary safeguards, but not criminal procedure wholesale or a right to jury trial.

5. The evidence supported the individual findings. The appellant could breach provisions prohibiting procuring, aiding, abetting or encouraging prohibited filming even if he did not hold the camera. The word “occupied” in the restriction concerning business premises was descriptive; actual occupation at the relevant time, and the appellant’s knowledge of it, were not required. Circumstantial evidence and inference could prove contempt to the criminal standard without transferring the legal burden of proof.

• Court of Appeal (Civil Division) Dismissed the appellant’s appeal against findings of contempt: [2015] EWCA Civ 1419.
• High Court of Justice, Queen’s Bench Division Sir David Eady found nine alleged breaches of the injunction proved and sentenced the appellant to six months’ imprisonment, suspended for two years.