North Warwickshire Borough Council v Eilidh McFadden & Anor

A deliberate breach of a civil injunction must be proved to the criminal standard. In assessing sanction, guidance for breaches of Criminal Behaviour Orders may provide a useful starting point for a comparable civil injunction, although it is not directly applicable.

The court should assess culpability and harm, then adjust the sanction for factors including early admission, means, previous similar convictions, the duration of the breach and the defendant's motive. A genuine moral or public-interest motivation may constitute mitigation, but does not excuse deliberate disobedience. Costs normally follow success, subject to the court's discretion and proportionality.

North Warwickshire Borough Council brought contempt proceedings against Eilidh McFadden and Timothy Hewes for breaching an injunction which prohibited protest activity at terminal gates. Both defendants accepted that they knew of the injunction and deliberately breached it by entering the road and sitting down.

The court therefore had to determine whether the breaches were proved and, if so, the appropriate sanctions and costs contributions. The parties agreed that each breach should be classified as B3 by reference to the sentencing guidance used for breaches of Criminal Behaviour Orders.

1. Breaches proved. Each defendant knew that the injunction was in force and deliberately acted contrary to it. The breaches were therefore proved to the criminal standard, namely so that the court was sure.
2. Classification and sanction. Although the sentencing guidelines for Criminal Behaviour Orders did not specifically address civil injunctions, they provided useful guidance on the appropriate starting point and range. The relevant framework required assessment of culpability by levels A to C and harm by levels 1 to 3. The defendants' deliberate breaches causing little or no harm were properly classified as B3.
3. Timothy Hewes. Previous convictions for similar protest-related conduct were aggravating. His belief that urgent action was required to stop fossil-fuel use, and his claimed moral duty to act, were relevant mitigation. The court distinguished conduct motivated by that moral imperative from breaches undertaken for personal benefit or to harm others. A fine of £1,200 was reduced for the early admission and further mitigation, resulting in a fine of £700 payable within 28 days.
4. Eilidh McFadden. Her breach was fleeting and she had no previous convictions. Her bail status was an aggravating factor, although it related to another matter. Her limited means justified a lower fine. After credit for admitting the breach at the first opportunity, the court imposed a fine of £400, payable at £20 per month.
5. Costs. Costs normally followed the claimant's success. The error naming other defendants in the schedule did not justify refusing a contribution because the remaining details identified these proceedings. Nevertheless, the imprecise time records, generic task descriptions and proportionality required reduction. Each defendant was ordered to contribute £250. Hewes was to pay within 28 days; McFadden was to pay after her fine, at £20 per month.