Tiernan & Ors v National Farmers Union & Ors

LADY JUSTICE SHARP: Mr Jay Tiernan, the Appellant, is a spokesman for an unincorporated association known as The Coalition of Badger Action Groups, or CBAG for short. This is a group which protests against the culling of badgers and also uses the name "Stop the Cull". He appeals against the findings of contempt made by Sir David Eady sitting as a Judge of the High Court on 21 January 2015 in contempt proceedings brought against him in his own capacity and representing members, participants and supporters of the unincorporated association known as The Coalition of Badger Action Groups and/or Stop the Cull.

There are five Claimants in the main proceedings. They are the National Farmers Union (the NFU), an advisory association that represents the interests of farmers and growers in England and Wales; Mr Peter Kendall, Mr Rupert Dod, Mr Carl Gray and Mr Paul Gould, each of whom also sues in a representative capacity as well on their own behalf. There were two relevant orders; an injunction order made by Turner J dated 22 August 2013 and an order made by Popplewell J dated 9 September 2013 extending the order made by Turner J. The Claimants alleged that Mr Tiernan breached the orders in nine respects. Sir David Eady found each allegation proved and sentenced him to 6 months' imprisonment suspended for 2 years.

The background relates to a badger cull undertaken to prevent the spread of bovine tuberculosis. In 2011 the Department of the Environment, Food and Rural Affairs announced culling would be allowed. The Protection of Badgers Act 1992 section 10(2) (a) gives the Secretary of State power to grant licences authorising the killing or taking of badgers for the purpose of preventing the spread of disease. Such licences were issued by ‘Natural England’ in the autumn of 2012. A cull pilot scheme took place in the summer and autumn of 2013 in West Gloucestershire and West Somerset. It was administered by various companies set up for that purpose. The cull is controversial and a number of groups oppose it.

On 22 August 2013 the Claimants made an application on notice to Turner J for an interim injunction against the named Defendants prohibiting harassment of farmers and those involved in the cull. They did so on the basis of evidence that as the date of the cull approached, serious incidents of trespass, personal harassment and intimidation of those suspected of being involved in the cull began to increase.

At that hearing, the Badger Trust was joined as an Interested Party and was represented by counsel. Mr Tiernan attended and appeared in person. He made oral submissions to the Court and participated in discussions with counsel for the Badger Trust outside the hearing as to the wording and scope of the terms of the order during a brief adjournment which had been given for that purpose. Though there was some doubt expressed about the matter, I am satisfied from looking at the transcript that the Judge's attention was drawn to the relevant provisions of section 12 of the Human Rights Act 1998 at the hearing and to the decision of the House of Lords in Cream v Banerjee [2004] UKHL 44; [2005] 1 AC 253 where the relevant threshold test which applies for the purposes of section 12(2) of the HRA 1998 is identified.

The terms of the injunction were the subject of argument. In view of the fact that the Defendants might not further contest its imposition, the matter was listed for a return date on 6 September 2013 with a proviso that any Defendant wishing to apply to vary or discharge the order was to file evidence by 30 August 2013. If no evidence was filed, no further hearing would be necessary and the order would be amended to continue "until trial or further order".

No evidence was filed. By an order sealed on 9 September 2013, Popplewell J extended the interim order of Turner J to trial or further order on the same terms. The order contained the following provisions:

On 3 June 2014 the Respondents issued an application to commit Mr Tiernan for contempt. It was their case that there was a settled intention among protesters, including Mr Tiernan, to ignore or flout any injunction granted. They relied for example, on a post on the Stop the Cull Facebook page dated 19 August 2013 (after the application for an injunction was served) which stated:

There were similar tweets at the @freebrocks Twitter account encouraging followers not to post about the injunction for fear of effectively serving it. On 17 August 2013, a message was posted on the Stop the Cull Facebook page explaining that Mr Tiernan no longer had an administrative authority over the account.

The first hearing of the committal application came before Andrews J on 26 June 2014. At the NFU's request, it was a directions hearing to address with Mr Tiernan his need for legal representation. The matter was then adjourned for a period of five months to allow Mr Tiernan time to obtain legal representation.

At the substantive committal application before Sir David Eady, Mr Tiernan appeared in person. The NFU's case was that Mr Tiernan had deliberately disobeyed the injunction. Their allegations were supported in several instances by filmed footage. The NFU called six witnesses. Mr Tiernan cross‑examined five of them. He did not give evidence.

Judgment was handed down on 21 January 2015. The Judge found all nine breaches proved to the criminal standard, including some which had been added by amendment by order of Wyn Williams J on 27 October 2014, and which concerned events which post-dated the service of the application to commit. The Judge concluded the breaches were flagrant. At paragraph 10 of his judgment he referred to a BBC report, which recorded that Mr Tiernan had said (to journalists after the injunction was imposed) that it [the injunction order] would "make absolutely no difference whatsoever". The Judge described this as a challenge to the rule of law in a democratic society.

The breaches the Judge found proved can be summarised as follows.

Mr Tiernan (1) failed to notify CBAG members of the order by posting it on named websites, (2) harassed a person protected by the order, Vivian Sellick, on 30 October 2013 by filming him and his vehicle and publishing the film online, (3) trespassed on private land in the cull zone, and harassed and intimidated a person protected by the order, Rupert Dod, on 17 September 2014 and (4) picketed, loitered and demonstrated within 25 metres of the NFU's Taunton offices on or about 17 September 2014.

Mr Tiernan now appeals as of right against the findings of contempt. There are three grounds of appeal and I shall deal with them in turn.

Ground 1

Mr Tiernan says he was not told, as he should have been, that he was entitled to legal aid regardless of his means and the merits. This constituted a breach of his fair trial rights under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").

This ground is unsustainable, in my view. It is clear from the material before us that the NFU through its legal advisers (including counsel) and also the judges who dealt with this matter, bent over backwards to assist Mr Tiernan in this respect to the extent that it was appropriate for them to do so.

Mr Tiernan was told on a number of occasions that he should seek legal advice and of the availability of legal aid; and he was given the warning in writing, which is obligatory under CPR Practice Direction 81, in correspondence, on the committal application and when the application was re‑served because of the amendment.

Thus: A letter from the NFU’s solicitors of 4 June 2014 accompanying service of the committal application, contained the obligatory warning required by the Civil Procedure Rules and contained links to the legal aid website, the MOJ website and the Government website.

A post, not apparently written by Mr Tiernan himself, alerted the NFU's solicitors to the possibility that he might not have legal representation and/or legal aid. They therefore wrote to Mr Tiernan and took steps to convert what would have been the hearing of their application to commit into a directions hearing specifically to deal inter alia with the question of his lack of representation. This letter said, amongst other things:

For the purposes of the directions hearing on 26 June 2014 which specifically addressed the issue of Mr Tiernan’s representation, the relevant rules in paragraph 15.6 of CPR 81 Practice Direction were set out in skeleton argument of Ms Michalos, counsel for the NFU. Those rules provide that the court is to have regard to the need of a respondent to committal proceedings to be aware of the possibility of legal aid and to be given the opportunity to seek representation.

Andrews J specifically addressed Mr Tiernan on the matter. She said:

Mr Tiernan’s criticism, as I understand it, is that he was not told by the NFU or its advisers that he was entitled to legal aid in view of the nature of the proceedings, regardless of the merits and probably regardless of his means.

See King's Lynn and West Norfolk Council v Bunning [2013] EWHC 3320, [2015] 1 WLR 531 where Blake J said at paragraph 31 that he was informed that there are no “financial requirements” for purposes of the grant of legal aid for representation in respect of an application to commit heard in the High Court. See further Her Majesty's Attorney General v Baines [2013] EWHC 4326 (Admin).

In that case committal proceedings were brought by the Attorney General in respect of breaches of the contra mundum injunction imposed by the President of the Family Division in respect of Venables and Thompson. Lord Thomas, the Lord Chief Justice, giving the judgment of the court said at para 4:

Ms Michalos for the NFU queries the correctness of the Bunning decision insofar as it decides that legal aid is available for committal proceedings in the High Court regardless of means. As she points out, the point was the subject of concession and not argument before Blake J, and the point was then approved without argument in Baines (see also Inplayer Ltd v Thorogood [2014] EWCA Civ 1511 and Brown v London Borough of Haringey [2015] EWCA Civ 483).

I think this issue may need to be examined more closely in the future. The Criminal Legal Aid (Financial Resources) Regulations 2013 (SI 2013/471) as amended by the Criminal Legal Aid (Financial Resources) (Amendment) Regulations 2013 (SI 2013/2791) to which Ms Michalos has referred us, provide (at Parts 3 and 4) for Legal Aid for representation in the Magistrates’ court and the Crown Court. Part 5 of the 2013 Regulations deals with "Representation” for “Other Proceedings". At paragraph 3 it says as follows:

In my judgment however it is unnecessary for us to consider whether Bunning is correctly decided in this appeal since, as I have already indicated, I think the criticism made of the Respondents' conduct is misplaced. I have already referred to the steps taken by the Respondents concerning the issue of Mr Tiernan’s representation and the availability of legal aid. They made the committal application in accordance with the Civil Procedure Rules and gave him the information the Rules required him to be given. I can see no basis for criticising them for not going further. The Rules do not state expressly that on a committal application the potential contemnor is entitled to legal aid regardless of his means or the merits. They are expressed in more cautious terms. Thus paragraph 15.6 of the Practice Direction of CPR Part 81 provides as follows:

These requirements were complied with. The Notes to that Rule, in the Supreme Court Practice, both the 2014 and 2015 editions, at paragraph 81.1.5, state that:

It may be that the Rules are expressed in these contingent terms to allow for changes that may be made from time to time in the regulations, but in reality none of this matters. The issue of Mr Tiernan’s representation was addressed at length as I have already said. He was told about legal aid and directed to the relevant websites where information about these matters was available.

He was also told that pro bono services may be available. I should add that though the outcome of the case was potentially serious from Mr Tiernan’s point of view, the issues in it were not complex or difficult and the evidence against him was straightforward in the sense that there was filmed evidence of seven of the breaches alleged against him. It is not suggested either that he is vulnerable or under some form of disability. He is articulate and intelligent and proficient with computers and technology. Critically however, there is no evidence at all that Mr Tiernan actually applied for legal aid or took any steps to obtain legal advice in the five months he was given to do so by Andrews J. At that hearing Mr Tiernan told the Judge:

And it was after he said this that the Judge told him how to go about getting legal advice.

We have been referred to the decision of this court in Brown v Haringey: see in particular paras 2, 3 and 26 where the court said it agreed with the analysis in Bunning. However, that case was a very different from this one on the facts. Mr Brown, a gentleman of some 80 years in age, had applied repeatedly for legal aid in relation to an application to commit him for breach of injunctions relating to anti‑social behaviour.

His application for legal aid and to the Legal Aid Agency was sent from pillar to post, if I can put it like that, by the Agency as a result of confusion on their part about whether the matter was covered by criminal or civil legal aid.

As a result, at the committal hearing Mr Brown was unrepresented and he was then sentenced to 18 months immediate custody. In this case by contrast, there is no evidence that Mr Tiernan took any of the steps he was positively encouraged to do to obtain either legal representation or legal aid.

The Respondents were not, in my judgment, obliged to do more than they did, or to assume the mantle, as Ms Michalos puts it, of becoming Mr Tiernan's legal advisers. In all the circumstances on the facts here I do not accept that Mr Tiernan suffered any injustice or infringement of his Convention rights insofar as they are engaged by these proceedings (as Ms Michalos points out, the NFU is a trade association, not a public authority).

A second issue raised concerns the privilege against self-incrimination. Mr Tiernan submits that he had a right to remain silent and should have been warned of this by Sir David Eady at the hearing of the committal application. We have been given detailed submissions on the law on the topic by both Ms Michalos and Mr Tear, Mr Tiernan's representative, but it seems to me that this point goes nowhere.

There can be no question but that a person accused of contempt has the right to remain silent: see Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67.

Mr Tiernan was informed of his right to remain silent in the NFU's skeleton argument for the directions hearing and in their substantive skeleton argument for the committal hearing. He then exercised that right.

As the transcript shows, this was a conscious choice. He had earlier lodged an unsworn and unsigned document entitled "affidavit" which did not bear a statement of truth. At the hearing he was told by the Judge that he could give evidence if he wished and he said he had no intention of giving evidence. In the circumstances, an argument that a failure to expressly warn

Mr Tiernan of his right to remain silent somehow prejudiced his position goes nowhere on facts.

Moreover, as a matter of law, a failure to give such a warning in criminal proceedings will not lead as a right to a conviction being quashed: see Radford v Kent County Council 18 February 1998 DC (162 JP 697) where it was said a failure to warn is of no consequence when no adverse inference is in fact drawn. This was precisely the position here.

The case against Mr Tiernan was based on direct oral evidence, on the footage, and in one case (breach 9 which concerned the date when a particular photograph was taken) on proper inferences from other evidence. It is true to say that in relation to this last matter the Judge added a comment that there was no evidence to the contrary, but that comment added nothing of consequence.

I would add only this. The Practice Direction to CPR 81 at paragraphs 12(4) and 13.2(4) states:

The Civil Procedure Rules Committee might wish to consider whether the wording of the Notice should be amended so it better reflects the right to silence that a potential contemnor undoubtedly has.

Ground 2:

The heading here is "overly wide unlawful injunction and use of civil rather than criminal prosecution". This ground in certain elements is, in my judgment, legally incoherent. One of the criticisms made is that the injunction is too broad in scope and made without limit of time.

It was, in fact, made until trial or further order, which is a standard and lawful provision. The short point however, is that it is settled law that if the terms of an injunction are disputed, then the proper course is to appeal the order, but the order must be obeyed until varied or set aside: see Fennings v Humphrey [1841] 4 BEAV, [1849] ER 237239.

Mr Tiernan had the opportunity to vary the order at the return date, but did not apply to do so. Nor did he appeal it. I should add that I can discern nothing unlawful or irregular in the terms of the order either as to the time of its application or as to its scope. In my view, this ground is without merit.

I turn to the second aspect of this ground, which is that the Respondents have conducted a private prosecution without the appropriate safeguards.

It is said Mr Tiernan is entitled to a trial by jury and the matter should have been transferred to the criminal courts for prosecution.

This argument is also unsustainable. The contempt jurisdiction is separate from the criminal jurisdiction and the procedures that apply are not the same: see, for example, the observations of Wall J, as he then was, in Re: B (A Minor) (Contempt of Court) [1996] 1 WLR 627 where he said:

It also is submitted on Mr Tiernan’s behalf (in reliance on R v Horseferry Road Magistrates' Court, ex Parte Bennett [1994] 1 AC 42) that the proceedings were an abuse of the process. In my judgment however that jurisdiction, the ambit of which is narrowly circumscribed and applies where a wrongful use is made of the processes of the court itself, can have no application, even by analogy, to this application which was properly made in accordance with the Rules and then fairly conducted.

Ground 3: specific challenge to the findings of breach: Mr Tiernan challenges the findings made by the judge in a number of respects. However, the evidence against him was strong; the judge correctly applied the criminal standard of proof to the evidence and in my opinion he was entitled to make the findings that the breaches in each case had been made out. I will deal however with some of the discrete matters that are raised.

Breach 1: Failure to notify members of CBAG: Mr Tiernan was required by the terms of the order, made in his presence, to notify others of the fact that the order had been made via websites which were specified and by social media. I should refer to two in particular; the Stop the Cull Facebook page and the @freebrocks Twitter page. There was evidence set out in the affidavit of Mr Singfield, the solicitor for the NFU, that Mr Tiernan had control over the websites at the material time, i.e. when proceedings were issued, and that he was taking a step to frustrate the order. On 17 August 2013 the Stop the Cull Facebook page said as follows:

A tweet was made at the @freebrocks Twitter page on the same date to the same effect.

Be that as it may, the judge was entitled to conclude on the evidence that the Respondents had discharged the burden of establishing that Mr Tiernan had failed to comply with the order. Mr Tiernan's argument that the judge was wrong to find him guilty of contempt because he did not have control over either the Twitter account or the Facebook page is misconceived. The order was made. He did not apply to vary it or appeal it and he failed to comply with it.

Breaches 2 to 5: Harassment of Vivian Sellick: The terms of the order required Mr Tiernan, amongst other things, not to enter private land within the Cull Zone identified in the order without the consent of the landlord or owner and not to do certain things to the Protected Persons as defined.

The issue raised here is whether Mr Sellick was a ‘Protected Person’. The assertion that he was not or, to be more precise, that the Judge was not entitled to find that he was, is not arguable.

There was evidence from Mr Sellick that he is both a farmer and land occupier who occupies land in the Cull Zone, and that he is a person who is participating in the Cull – thus, that he fell within the definition of a Protected Person. It would have been obvious to Mr Tiernan in any event, that Mr Sellick was participating in the Cull at the relevant time from the matters that can be seen on the film footage viz.

Mr Sellick with a shotgun in the presence of a dead badger and in the presence of the police.Indeed, this was obviously the reason for Mr Tiernan's presence; and for his filming of Mr Sellick and his vehicle.

The Judge was satisfied that this conduct amounted to a breach of the order, and he was entitled so to find.

A further argument made by a reference to the Protection from Harassment Act 1997, that this was one incident and it could not amount to harassment, is misconceived. The application to commit was made by reference to the terms of the order, and it was this order which Mr Tiernan by his conduct was said to have breached.

Breaches 6 to 8: Harassment of Rupert Dod: The argument here, as I understand it, is firstly that the injunction was not in force at the material time. But this argument is simply wrong. As I have already indicated, the injunction was in force up until trial or further order. Secondly, it is argued that Mr Tiernan was not actually doing the filming or holding the camera and therefore his conduct was not covered by the terms of the order. However, the order went wider than prohibiting filming. It prohibited Mr Tiernan from procuring, inciting, aiding, abetting or encouraging any other person to do any of the acts prohibited by the order, including harassment by filming. Mr Tiernan is shown ‘leading the camera’; and the judge was entitled to find that this conduct amounted to a breach, whether Mr Tiernan was actually holding the camera himself or not. Thirdly, it is said that there was no indication that Mr Tiernan was within 25 metres of the protected land, in particular when he blew a whistle. There was however evidence from Mr Dod which the judge was entitled to accept, that the blowing of whistles took place about 4 or 5 metres from his land in breach of the 25 metre restriction in the order.

Breach 9: Demonstrating within 25 metres of a business premises occupied by the NFU: Paragraph 3(4) of the order prohibits Mr Tiernan from knowingly picketing, demonstrating, et cetera "within 25 metres of any fixed structure occupied by people as business premises".

The Judge was right, in my view, to reject the argument made to him that there was no breach because Mr Tiernan had no reason to suppose the building was in fact occupied at the time: see paragraph 28 of the judgment.

The wording of the injunction prohibited the relevant activities in relation to a fixed structure used as business premises; and to that extent, the word ‘occupied’ was descriptive, as the Judge found. There was no requirement, that the building had in fact to be occupied, nor that Mr Tiernan had to know that it was.

Mr Tear also submits, as I understand it, that the judge was wrong to draw an inference that this breach had been committed on the 17 September 2014 from a photograph, or that the date of the photograph itself could be inferred from the time it was posted on the Stop the Cull page (on 18 September 2014): see paragraph 27 of the judgment.

I do not consider that the judge went wrong in this respect or that inferential evidence could not be relied upon to discharge the burden of proof, as is submitted. If authority is needed for the proposition that proof to the criminal standard can be discharged by circumstantial evidence and then by inference, it is to be found in R v W(N) [2009] 1 WLR 965 where the Court of Appeal said as follows at paragraph 19:

For all these reasons, I would dismiss this appeal.

LORD JUSTICE PATTEN: I agree.

LORD JUSTICE FULFORD: I also agree.