Secretary of State for Transport & Anor v Cuciurean

The court has a broad discretion when sentencing for civil contempt. The court must assess culpability and harm, together with relevant aggravating and mitigating factors, while pursuing punishment, future compliance and rehabilitation.

Imprisonment is the most serious sanction and requires the custody threshold to be crossed. Protesters’ conscientious motives and the civil-liberties protections in articles 10 and 11 of the ECHR are important mitigating considerations, but they do not license deliberate defiance of court orders. Where civil disobedience is involved, a custodial sentence may appropriately be suspended if a proportionate condition is likely to secure future compliance.

The Secretary of State for Transport and High Speed Two (HS2) Limited applied for sentence after Mr Cuciurean was found, in an earlier judgment, to have committed 12 contempts by entering land protected by an injunction.

The judgment addressed the effect of changes to CPR Part 81, the appropriate sentencing principles for civil contempt, the relevance of protest and free speech rights, and whether imprisonment should be immediate or suspended. The central questions were whether the custody threshold had been crossed and, if so, what proportionate sentence and condition should be imposed.

1. Procedural rules. The injunction and formal procedural steps taken before 1 October 2020 had to be considered under the law and rules then in force. The new CPR Part 81 governed the process going forward. In the event of a mismatch, the court would apply the rule more beneficial to the contemnor. No substantive alteration to the liability judgment was required.
2. Sentencing framework. The court had a broad discretion to impose imprisonment, a fine or sequestration. It had to consider culpability and the harm caused, intended or likely to be caused, followed by aggravating and mitigating factors. The purposes were punishment, securing future compliance and rehabilitation.
3. Custody threshold. Imprisonment was the most serious sanction and had to be as short as possible while remaining proportionate to the gravity of the breaches. The threshold was crossed because the breaches were repeated, knowing, intentional and contumacious. The conduct materially disrupted HS2 operations, created risks to persons and works, and involved interference with fencing and entry onto protected land.
4. Protest and civil disobedience. The respondent’s principled opposition to HS2 and the civil-liberties context were substantial considerations. They did not justify treating court orders as optional. Civil disobedience may warrant greater clemency because of the protester’s moral position, generally law-abiding character and the rehabilitative value of judicial restraint. The present conduct was only marginally within that category because it involved repeated physical incursions and was aimed at disrupting the project.
5. Sentence and suspension. Absent the civil-liberties considerations, 18 months’ imprisonment would have been appropriate. Taking those considerations into account, the sentence was six months’ imprisonment. It was suspended for 12 months on condition that the respondent comply with any relevant penal-notice order of a court in England and Wales. The condition was sufficiently connected to the breaches and proportionate. A further breach could activate the sentence and attract a further sentence.

The court referred to its earlier liability judgment, [2020] EWHC 2614 (Ch) , in which Mr Cuciurean was found to have committed 12 contempts. This judgment determined the consequential sentence.