National Farmers' Union & Ors v Tiernan & Ors

Contempt of court allegations must be proved to the criminal standard. The alleged breach must be identified with sufficient clarity and precision, particularly where the application is analogous to an indictment. A person subject to an injunction cannot defend a breach by asserting that the underlying conduct being restricted was unlawful or that he was monitoring compliance with the law. Where an order protects individuals from identification, filming or harassment, publication of material may constitute a separate breach where the protected person or vehicle can be identified, including by local knowledge or information combined with the film. The court may draw natural inferences from contemporaneous publication, while remaining alert to the criminal standard of proof.

The claimants applied to commit Jay Tiernan for contempt of court. They alleged nine breaches of an interim injunction originally granted on 22 August 2013 and continued on 5 September 2013. The injunction restricted entry onto land within the badger-cull zones, harassment and intimidation of protected persons, filming and publication of identifying material, demonstrations near protected premises, and required notification of the order through specified websites.

The allegations concerned failures to publicise the order, filming and publishing material involving Vivian Sellick, trespass and filming at Rupert Dod's farm, use of a whistle near protected land, and demonstrating near NFU premises. The central issues were whether each breach had been proved beyond reasonable doubt and whether the pleaded particulars identified the alleged conduct with sufficient certainty.

1. Nine breaches proved. The court found each allegation proved beyond reasonable doubt. The matter was adjourned for submissions and evidence on penalty.
2. Notice of the injunction. The failure to publicise the order through the specified websites was proved by the claimants' solicitor's evidence. The order's notification requirement served to establish knowledge among persons who might otherwise face liability for contempt under the Spycatcher principle, illustrated by Att.-Gen. v Newspaper Publishing Plc [1988] Ch 333 and Att.-Gen. v Times Newspapers Ltd [1992] 1 AC 193.
3. Filming and publication. Filming Vivian Sellick and his vehicle constituted harassment and intimidation contrary to the order. Publishing the film breached the prohibitions on publication of material from which Mr Sellick and his vehicle could be identified. The vehicle registration number was identifiable from the film without access to confidential licensing records. Publication also independently amounted to harassment in the circumstances.
4. Entry, filming and noise. The BBC footage proved that Mr Tiernan entered Rupert Dod's land without permission, filmed him or his property, and used a whistle within the prohibited area. It was Mr Tiernan's responsibility to ensure that he was outside the restricted area; uncertainty about the precise boundary did not avoid the breach.
5. NFU premises. The application notice was the critical document, analogous to an indictment. Evidence concerning an alleged incident on 4 September could not support an allegation pleaded as occurring on or about 17 September. The photograph posted on 18 September, together with the measurement evidence, nevertheless supported the natural inference that it depicted a contemporaneous event. Demonstrating approximately 9 metres from the NFU premises breached the 25-metre prohibition. The word occupied did not permit demonstrations whenever the building was temporarily empty.
6. Irrelevant justification. The argument that Mr Sellick had breached culling procedures, or that the defendant was entitled to police the legality of the cull, provided no defence to breach of the court order.