National Highways Ltd v Buse

Sanctions for deliberate contempt must reflect culpability and harm while serving punishment, compliance and rehabilitation. The court must first consider whether a fine is sufficient. Where custody is necessary, it must impose the shortest proportionate term, allowing for mitigation and early admissions, before considering suspension. Protesters’ conscientious motives and articles 10 and 11 of the European Convention on Human Rights are relevant to sanction, but do not permit unilateral disobedience of an injunction. Suspension may be appropriate where protest has ceased and the contemnor has entered a meaningful dialogue with the court.

National Highways Limited sought committal or another sanction against nine defendants who admitted breaching an injunction made by Lavender J on 21 September 2021. The injunction prohibited specified obstruction of traffic on the M25 and related roads for protest purposes. The defendants had entered the carriageway on 27 October 2021; the second defendant had also breached the order on 8 October 2021.

The court addressed sanction rather than proof of contempt. It also considered the first defendant’s proposed application to purge an earlier contempt, the third defendant’s temporary non-attendance, the appropriate appeal route and whether terms of imprisonment should be suspended.

1. Contempt established. The court was sure that the defendants knew of Lavender J’s order, deliberately performed acts prohibited by it and knew that they were doing acts which breached it. The second defendant was also in contempt for the 8 October breach. Articles 10 and 11 of the European Convention on Human Rights were engaged, but the protesters’ rights had already been balanced against the rights of others when the injunction was granted.
2. Sentencing principles. The purposes of sanction are punishment, securing compliance with court orders and rehabilitation. Seriousness is assessed by culpability and harm caused, intended or likely to be caused. The court must first consider whether a fine is sufficient. If custody is necessary, it must impose the shortest term that properly reflects seriousness and is proportionate, allowing for mitigation, the impact on dependants and early admissions. Suspension is considered after fixing the appropriate term.
3. Protest context. Conscientious motives may justify a lesser sanction as part of a dialogue about the duty to obey the law and respect others’ rights. They do not allow protesters to determine the permissible limits of disruption or ignore an order they regard as wrong. Each contemnor must be assessed separately, with measured regard to comparable cases.
4. Application and orders. The custody threshold was passed. The court treated the four-month sentence in National Highways Limited v Ana Heyatawin and others [2021] EWHC 3078 (QB) as proportionate, subject to individual circumstances, a one-third reduction for early admissions and a further reduction for custody conditions. The third defendant received two months’ immediate imprisonment. The first defendant received 30 days consecutive to his existing sentence. The second defendant received two months for the 8 October breach and a consecutive 30 days for the 27 October breach. The two-month sentence in the second defendant’s case and the two-month sentences imposed on the fourth to ninth defendants were suspended for two years, conditional on compliance with the injunction.
5. The first defendant’s proposed application to purge the earlier contempt was left to the original sentencing court, or a court including part of that constitution if possible. Under the Administration of Justice Act 1960, the appeal route from the Divisional Court was to the Supreme Court. Permission was required, but no general-public-importance restriction applied.