National Highways Limited v Ana Heyatawin and others [2021] EWHC 3078 (QB)

National Highways Limited v Ana Heyatawin and others [2021] EWHC 3078 (QB) concerned committal proceedings brought by the highway authority against nine Insulate Britain protesters who on 8 October 2021 blocked the slip road at Junction 25 of the M25 motorway in deliberate breach of an injunction granted by Lavender J on 21 September 2021. The Divisional Court (the President of the Queen’s Bench Division and Mr Justice Chamberlain) found each defendant in contempt of court and imposed terms of immediate imprisonment ranging from three to six months.

The claimant National Highways Limited applied on 21 September 2021 for and obtained from Lavender J an injunction against persons unknown prohibiting, inter alia, blocking, obstructing or preventing the free flow of traffic on the M25 for the purpose of protesting. The M25 Order defined the M25 to include the London Orbital Motorway and its verges, central reservation, slip roads, overbridges and underbridges. On 1 October 2021 May J ordered that the nine defendants be joined to the proceedings and dispensed with the requirement for personal service, permitting service by email to Insulate Britain and by posting a copy through the letterbox of each defendant with a notice affixed to the front door. Each defendant was served with the M25 Order between 30 September and 4 October 2021. The committal application was issued on 22 October 2021 and service was effected personally on some defendants and, following an order of the court dated 8 November 2021, by alternative means permitted under May J’s order in respect of the remainder.

On the morning of 8 October 2021 at 8.35am police were alerted by construction workers that a large group of protesters were running onto the road at the Waltham Cross Interchange roundabout at Junction 25 of the M25. The police found between 15 and 20 protesters sitting or lying in the road wearing high visibility vests and holding Insulate Britain banners. Both lanes of the carriageway leading from the M25 slip road to the roundabout were blocked. Bodycam footage from attending police officers showed a chaotic scene with the defendants very close to traffic including moving traffic. Ana Heyatawin sat down on the road surface holding an Insulate Britain banner until removed by police. Ben Taylor sat down on and glued himself to the road surface holding a banner, refused to be moved and was physically pulled from the road. Benjamin Buse rushed onto the road glued to Emma Smart and was removed by police; he later ran back into the road from the verge. Emma Smart engaged in equivalent conduct. James Thomas twice entered the road and sat down, each time being removed by police; when officers attempted to remove him he lay down on the road. Louis McKechnie sat down on and glued himself to the road surface holding a banner and was carried to a police van. Oliver Rock sat or lay down on the road surface. Roman Paluch-Machnik sat down on the road surface, refused to move when requested and made his body limp when police attempted to remove him. Tim Speers sat down on the road surface and refused to leave when requested by police. One lane of the road remained blocked until 9.55am because Ben Taylor and Louis McKechnie had glued themselves to the road. The claimant alleged and the bodycam footage demonstrated that the defendants’ actions created risks to the lives of protesters and emergency services, disrupted the strategic road network including emergency services vehicles, diverted police resources and caused economic damage and policing costs.

In the period leading up to and following the M25 Order, Insulate Britain published a series of statements on its website making clear that the campaign would continue despite the injunction. On 28 September 2021 the website stated that 52 people had blocked the M25 in breach of the injunction and that actions would continue until the government made a meaningful commitment to insulate Britain’s 29 million homes by 2030. On 29 September 2021 the website acknowledged that the day’s actions were in breach of the High Court injunction. On 5 October 2021 the website stated that supporters were more fearful of the loss of their country than of the courts and that the campaign would not stop regardless of injunctions. On various dates protesters publicly burned copies of the M25 Order. On 4 November 2021 Insulate Britain posted a video to its Twitter account in which Roman Paluch-Machnik, Ben Taylor, Emma Smart, Tim Speers, Oliver Rock and Louis McKechnie appeared, announcing that they would likely be imprisoned and calling for others to join a mass act of civil resistance on 20 November 2021. The video described the government as fascist for putting non-violent protesters in prison.

The court was instructed by Hodge Jones & Allen on behalf of all nine defendants on 10 November 2021, the week before the hearing. Benjamin Buse was represented by Mr Owen Greenhall instructed by that firm; the other defendants had the benefit of legal advice but chose to appear in person. The committal application included on its front page the mandatory notice that the defendants were entitled to legal representation and to apply for legal aid without any means test. Mr Greenhall on behalf of Mr Buse did not dispute liability or the claimant’s summary of the legal principles relevant to sanction. He submitted that the court should take into account Mr Buse’s admission of contempt, that if a custodial order was imposed it should only be as a last resort and should be as short as possible, and that Articles 10 and 11 ECHR were engaged. He drew attention to the limited nature of Mr Buse’s actions, noting that he had sat in the road for about ten minutes and after being removed a second time had remained at the side of the road. He urged caution in drawing inferences about individual defendants’ motivation from Insulate Britain’s statements. The unrepresented defendants were without exception proud of what they had done and each was conscious that what he or she was doing was in breach of the court order. They spoke about their beliefs concerning the climate emergency and the importance of insulating homes, which each considered more important than complying with court orders. Several described their actions as proportionate. Ben Taylor expressed himself in strong and defiant language, describing the injunction as counter-productive and irrelevant. He said that if non-violent civil disobedience did not achieve Insulate Britain’s aims, things would turn violent. He stated that if he was not imprisoned he would go back out to block the motorway at the earliest opportunity and continue doing so until the government acted.

The Divisional Court set out the applicable legal principles. The court emphasised that in a democratic society all citizens are equal under and subject to the law, that orders made by the court must be obeyed unless and until set aside or successfully challenged on appeal, and that the mechanism to enforce orders is provided by the law of contempt. To establish liability an applicant must prove to the criminal standard that the defendant did an act prohibited by the order having received notice of it, intended to do the act, and had knowledge of all the facts which would make the carrying out of the prohibited act a breach. The act must be deliberate rather than merely inadvertent but an intention to commit a breach is not necessary. The court referred to Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357, which held that where the court has already conducted the necessary balancing process and granted an injunction, that order must be obeyed unless and until it has been set aside. A person accused of contempt may not seek to revisit the merits of the original injunction as a means of securing an acquittal. At the liability stage of a contempt application in a protest case the underlying merits of the matter to which the protest is directed are irrelevant, as is the fact that the case involves speech, protest or assembly. The essence of civil contempt is disobedience to a court order.

The court found that the evidence established to the criminal standard that each defendant did acts prohibited by the M25 Order having received notice of it, that the protest was on the M25 as defined in the order, that each defendant breached the order in the ways alleged by the claimant, that each intended to do the relevant acts, and that each had knowledge of the facts which would make the carrying out of the relevant acts a breach of the order. The court was satisfied that each defendant was served with the M25 Order before 8 October 2021 and was fully aware that his or her actions on that date would be in breach of it. This was not a case of inadvertent breach but rather a deliberate and flagrant act of defiance to an order of the court, albeit one which each defendant undertook for conscientious reasons. There was no evidence that any defendant was acting under pressure from anyone else; each decided freely and individually to breach the order. Accordingly the court found each defendant in contempt of court.

Turning to sanction, the court noted that there is no tariff for sanctions for contempt because every case depends on its own facts. The sanction has nothing to do with the dignity of the court and everything to do with the public interest that court orders should be obeyed. The court has a broad discretion and may impose an immediate or suspended custodial sentence, an unlimited fine or an order for sequestration of assets. The discretion should be exercised with a view to achieving punishment for breach, ensuring future compliance with the court’s orders and rehabilitation of the contemnor. The first step is to consider the culpability of the contemnor and the harm caused, intended or likely to be caused by the breach. The court should consider all the circumstances including whether there has been prejudice, the extent to which the contemnor acted under pressure, whether the breach was deliberate or unintentional, the degree of culpability, whether the contemnor appreciated the seriousness of the breach, whether the contemnor has cooperated, whether there has been an admission of contempt, whether a sincere apology has been given, the contemnor’s previous good character and any other personal mitigation. Imprisonment is the most serious sanction and can only be imposed where the custody threshold is passed; it is likely to be appropriate where there has been serious contumacious flouting of an order. The maximum sentence is two years’ imprisonment and a person committed for contempt is entitled to unconditional release after serving one half of the term. Any term of imprisonment should be as short as possible but commensurate with the gravity of the events and the need to achieve the objectives of the jurisdiction. A sentence may be suspended on any terms which seem appropriate.

The court referred to the guidance in Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9 that conscientious motives are relevant and that where the contemnor is a law-abiding citizen apart from protest activities a lesser sanction may be appropriate because the sanction can be seen as part of a dialogue with the defendant so that he or she appreciates the reasons why in a democratic society it is the duty of responsible citizens to obey the law and respect the rights of others even where the law or other people’s activities are contrary to the protestor’s own moral convictions. The court cited the speech of Lord Hoffmann in R v Jones (Margaret) [2006] UKHL 16 that civil disobedience on conscientious grounds has a long and honourable history in this country and that it is the mark of a civilised community that it can accommodate protests of this kind, but there are conventions generally accepted by the law-breakers and law-enforcers: the protesters behave with a sense of proportion and do not cause excessive damage or inconvenience and vouch the sincerity of their beliefs by accepting the penalties imposed by the law; the police, prosecutors and magistrates behave with restraint and impose sentences which take the conscientious motives of the protesters into account. The court emphasised that there is no principle which justifies treating the conscientious motives of the protestor as a licence to flout court orders with impunity, citing Attorney General v Crossland [2021] UKSC 15. In some cases there may be scope to temper the sanction where there is a realistic prospect this will deter further law-breaking or encourage contemnors to engage in dialogue with a view to mending their ways or purging their contempt, but it is necessary to consider whether there is such a prospect on the facts of the case.

The court identified the material features of the case. As to culpability, the affidavit evidence and bodycam footage made clear that each defendant was protesting under the banner of Insulate Britain. The statements on Insulate Britain’s website showed that the organisation knew of the M25 Order and loudly proclaimed its intention to breach it. The court was sure that each defendant was served with the order before 8 October 2021 and was fully aware that his or her actions on that date would be in breach of it. This was a deliberate and flagrant act of defiance to an order of the court albeit one which each defendant undertook for conscientious reasons. There was no evidence or suggestion that any defendant was acting under pressure from anyone else. As to harm, the court emphasised the importance of focusing on both the harm actually caused and the harm intended or likely to be caused. Unlike the events in Cuadrilla and Cuciurean, this was not a protest directed at a specific activity taking place on private land but a protest on the slip road of a busy motorway at rush hour on a weekday. The protest affected and was intended to affect large numbers of ordinary members of the travelling public. Harm was not the by-product of the protest; its very objective was to cause harm and disruption to as many ordinary members of the public as possible to bring attention to the cause the defendants advocated. At least one lane was blocked from 8.35am until 9.55am. Traffic would have been heavy as commuters were driving to work. The blocking of a junction on a major motorway could be expected and was intended to cause serious inconvenience to a large number of people. The harm caused was likely to go beyond mere inconvenience because those held up might well include emergency vehicles and critical workers. The court noted the suggestion of a “blue light policy” under which protestors would move out of the way of emergency vehicles but observed that there was no evidence of this and in any event it did not address the gravamen of likely harm: emergency vehicles may be stuck in stationary traffic a long way off, as may medical and other critical workers travelling in vehicles without blue lights. Economic losses must have been caused to those who could not get to work and to those who employ them. The protest diverted police resources from other important tasks. Although no injuries were caused there was an obvious risk of serious injury not only to the protestors themselves but also to motorists who might have to brake quickly or swerve at a location where pedestrians would not be expected, and to the police who would have to remove them.

The court identified an additional important feature. In a democratic society which recognises the right to freedom of peaceful assembly, protests causing some degree of inconvenience are to be expected and up to a point tolerated. Ordinary members of the public have rights too, including the right to use the highways. The public’s toleration of peaceful protest depends on an understanding that in a society subject to the rule of law the balance between the protestors’ right to protest and the right of members of the public to use the highways is to be determined not by the say-so of the protestors but according to the law as applied in the circumstances of the particular case by independent and impartial courts. In this case the

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