Cuadrilla Bowland Ltd & Ors v Lawrie & Ors

An injunction, especially one against persons unknown, must identify prohibited conduct with reasonable clarity in context. Ambiguity, vagueness or inaccessibility may prevent committal where the alleged conduct falls within the uncertainty. A condition requiring a specified intention is not inherently unclear. Intention is an ordinary English concept, and the claimant must prove it beyond reasonable doubt.

Intentional, non-violent disruption remains within the rights to expression and peaceful assembly. Restrictions are more readily justified where protest seeks to compel others or defies a court order. Conscientious motive mitigates sanction but creates no immunity from imprisonment. Suspended custody may be proportionate. Harm must be assessed by reference to the interest protected by the breached term. Criminal sentencing guidance is comparative only.

The claimants operated a lawful hydraulic-fracturing site near Preston New Road. Following extensive direct-action protests, the High Court granted an injunction against named defendants and persons unknown. It prohibited trespass, interference with access to the site and unlawful interference with the first claimant’s supply chain.

The three appellants deliberately blocked the site entrance for approximately six and a half hours while attached in pairs by arm-tube devices. One appellant later stood in the path of a lorry approaching the site. HHJ Pelling QC found contempt proved beyond reasonable doubt. He imposed suspended terms of four weeks for the first incident and a further suspended term of two months for the second.

The appellants contended that provisions depending on their intentions were too uncertain to support committal. Alternatively, they argued that suspended imprisonment was excessive given their conscientious, non-violent protest and their rights to freedom of expression and peaceful assembly. The central issues were the required certainty of an injunction against persons unknown and the proper assessment of sanctions for protest-related contempt.

Leggatt LJ gave the leading judgment. David Richards LJ and Underhill LJ agreed.

1. Disposition. The appeal was allowed only as to the length of Ms Lawrie’s sentence for the second incident. Her suspended term of two months was reduced to four weeks. The appeal was otherwise dismissed.
2. Certainty of the injunction. An injunction may be unclear because it is ambiguous, unduly vague or inaccessible to its addressees. Whether uncertainty prevents enforcement depends on context. A person should not be committed where it is unclear whether the conduct falls within the order. The need for clarity is especially important for an order against persons unknown. The requirement stated in Ineos Upstream Ltd v Persons Unknown [2019] EWCA Civ 515 was followed.
3. Intention. A prohibition of specified acts done with a specified intention is not inherently uncertain. Intention is an ordinary English word, not a technical legal concept. The claimant must prove the prescribed intention beyond reasonable doubt. That requirement protects the alleged contemnor. The non-essential concern expressed in Ineos Upstream Ltd v Persons Unknown about incorporating subjective intention into an order was disapproved. A description which makes membership of an unidentified defendant class depend solely on a mutable state of mind is materially different from a prohibition of specified conduct performed with a specified intention.
4. Binding effect. A court order binds from the time it is made until it is revoked or varied. Its alleged substantive error is no defence to contempt. An unjustifiably broad order may nevertheless be relevant in mitigation. Here, the acts punished were acts which the court was entitled to prohibit.
5. Protest and imprisonment. Deliberately disruptive protest remains within the scope of the rights to freedom of expression and peaceful assembly. The injunction and any sanction for its breach are separate interferences requiring justification. Conscientious and non-violent motives are relevant to culpability and mitigation, but they do not confer immunity from imprisonment. Suspended custody may be proportionate where necessary to protect others’ rights and maintain the authority of the judiciary. Particular caution applies to immediate imprisonment.
6. Assessment of sanction. Appellate intervention is justified for an error of principle, reliance on immaterial considerations, failure to consider a material factor or a sanction outside the reasonable range. The criminal guideline for breach of a criminal behaviour order may be used only as a comparison. For Ms Lawrie’s second contempt, the judge wrongly treated danger to road-users as the principal harm. Paragraph 7 protected the claimant against economic loss, which was slight. The dangerous conduct, including conduct satisfying section 22 A of the Road Traffic Act 1988, could aggravate culpability but did not justify the longer term.

• Court of Appeal (Civil Division): In Cuadrilla Bowland Ltd & Ors v Lawrie & Ors [2020] EWCA Civ 9, the court unanimously reduced Ms Lawrie’s suspended two-month term to four weeks and otherwise dismissed the appeal.
• High Court: HHJ Pelling QC found the appellants in contempt following a hearing in June 2019. On 3 September 2019 he imposed suspended terms of four weeks for the first incident and two months for Ms Lawrie’s second incident. No citation for those decisions is stated in the judgment.