Breen & Ors. v Esso Petroleum Company Limited

In contempt proceedings, the court must assess seriousness by culpability and harm. It must first consider whether a fine is sufficient. If custody is necessary, it must impose the shortest proportionate term, allow for mitigation and then consider suspension.

Protestors may ordinarily merit greater clemency, but conscientious motives do not excuse deliberate defiance of court orders. There is no presumption that a custodial sentence for protest-related contempt should be suspended, nor is direct harm to the public a prerequisite for immediate custody.

A granular numerical tariff for individual days of breach or aggravating factors is inappropriate. However, an unsound method does not require appellate intervention where the resulting sentence is within the proper range. A fine is generally unjustified in addition to immediate custody where custody is necessary and the contemnor lacks means.

The respondent obtained an injunction requiring the appellant to leave an excavation and not obstruct its Southampton to London Pipeline Project. The appellant remained on site, erected and occupied a wooden structure, and did not comply with related court process.

Ritchie J found three contempts and, by a judgment cited as [2022] EWHC 2601 (KB), imposed 112 days’ immediate custody and a fine of £1,500. The appellant accepted both contempt and that the custody threshold was passed. He appealed the method and length of the sentence, the refusal to suspend it, and the fine.

The central issues were whether the custodial sanction was wrong in principle or excessive, whether it should have been suspended, and whether a fine could properly be imposed as well.

1. Appeal allowed only as to the fine. The court quashed the £1,500 fine. It otherwise dismissed the appeal and left the 112-day immediate custodial sentence unchanged.

2. The court applied the structured approach in Attorney General v Crosland [2021] UKSC 15. The seriousness of contempt is assessed by culpability and actual, intended or likely harm. A court must first ask whether a fine is sufficient. If it is not, it must impose the shortest custodial term properly reflecting the contempt, make proper allowance for mitigation, and consider suspension.

3. The first-instance judge’s calculation of five days for each day of breach and 21 days for each aggravating feature was too granular and arbitrary. It risked creating an impermissible mathematical tariff for fact-sensitive contempt cases. That methodological error did not make the ultimate sentence wrong: the proper appellate question was whether the term and refusal to suspend were within the judge’s discretion.

4. The 112-day term was not excessive. The appellant’s prolonged and deliberate defiance, obstruction, conduct designed to evade arrest, public mockery of the injunction, lack of co-operation and limited mitigation entitled the judge to regard the contempt as particularly serious and culpability as high. An appellate court should not ordinarily reweigh aggravating and mitigating factors assessed by the first-instance judge.

5. Greater clemency may commonly be appropriate in civil-disobedience cases, but it is not a licence to ignore court orders. Suspended committal orders in other protest cases did not establish a presumption of suspension or a tariff. Nor was immediate custody confined to cases causing direct public disruption. Applying the relevant suspension factors, immediate custody was the only appropriate punishment; there was poor compliance with court orders and no sufficient countervailing mitigation, realistic rehabilitation prospect, or harmful impact on others.

6. The fine was wrong in principle. Once custody was necessary, a fine could not be regarded as a sufficient alternative penalty. The appellant was also impecunious, and the exceptional circumstances that might justify a fine alongside custody were absent. The court therefore quashed the fine under the amended order while preserving the custodial sanction.

• Court of Appeal (Civil Division): In [2022] EWCA Civ 1405, the court allowed the appeal only to quash the fine and otherwise dismissed it.
• High Court (King’s Bench Division): Ritchie J, in [2022] EWHC 2601 (KB), found the appellant in contempt, imposed 112 days’ immediate custody and ordered a fine of £1,500.