HS2 (HIGH SPEED TWO LIMITED) & Anor v WILLIAM HAREWOOD & Ors

The Claimants are constructing a high speed railway line in England for the benefit of the public in accordance with the will of Parliament.

The Defendants object to the construction of the HS2 railway line and have taken direct action against the construction.

For the committal claim which is the subject of this judgment I was provided with: the hearing bundle, an authorities bundle, a supplementary authorities bundle, various cases handed up on paper, various late served witness statements from some, but not all, of the Defendants and some other documents including character references.

After an adjournment for the sanctions decision for D33 I was provided with an expert report from a psychologist and 2 emails from a trainee probation officer.

The first issue to be dealt with in this judgment is whether the Defendants breached a mandatory and prohibitory injunction granted by Mr. Justice Cotter on the 11th of April 2022 “the Cotter Injunction” which, in summary, ordered named Defendants and persons unknown to leave the land defined below and not to return. Only sanctions were dealt with because by the time of the start of the hearing all Defendants (save one: D61, who did not attend and D33 who took a technical defence) had admitted the pleaded breaches of the injunction.

The second issue is to determine the appropriate sanctions for any admitted or proven breaches.

This judgment was delivered in Court ex-tempore on 23 September 2022. It relates to all Defendants. I had delivered various decisions in the 4 day July 2022 hearing and also made findings of breach and imposed sanctions on the 6 other Defendants then and given an extempore judgment dealing with all those matters. This judgment brings together the breach and sanctions decisions into one place.

I have attached to this judgment an appendix with the approved transcripts of various of the decisions made in July 2022.

Some of the decisions I made relating to one Defendant (D33) were in two Private hearings relating only to him and only to his private medical information relevant to personal mitigation. The transcripts of those hearings and the judgment I made on the right to privacy relating to that personal information outweighing the need for the whole hearing to be in open Court will not be released publicly and are subject to reporting restrictions.

This claim concerns the property at Cash’s Pit Land which adjoins the A51 at Swinnerton, Staffordshire and is approximately 4 acres in size, rectangular in shape and contains a forest surrounded by farmers’ fields, positioned South of Stoke on Trent. It includes a thin strip of land adjoining the northern verge of the A51. I shall refer to this land as “CPL”.

By a notice of application dated the 25th of March 2022 the two Claimants applied for possession of CPL together with a prohibitory and mandatory injunction and declarations and alternative service orders. The application was made against 59 named Defendants and various persons unknown.

The evidence in support of the application was provided in a witness statement of Richard Jordan dated the 23rd of March 2022 and in various other witness statements and affidavits.

By an order made by Mr. Justice Cotter on the 11th of April 2022 at a hearing which was attended by some of the Defendants and both of the Claimants the Judge ordered possession of CPL be granted to the Claimants and granted an injunction which was interlocutory and was to last until the trial or a further order was made in the case or until the 24th of October 2022 (the Cotter Injunction).

By paragraph 4a of the Cotter Injunction the relevant persons were forbidden from entering CPL or remaining there. By paragraph 4b the relevant persons were ordered not to enter CPL, not to interfere with the works at CPL, not to interfere with the fences or gates at CPL, not to damage the property of the Claimants at CPL or of their subcontractors and not to climb onto vehicles or machinery at CPL. By paragraph 4c various persons were ordered to cease tunnelling at CPL and not to encourage or assist tunnelling at CPL.

By paragraph five of the Cotter Injunction it was expressly stated that the Injunction did not prevent the exercise of existing rights of way over CPL or public highways or the rights of the statutory undertakers (service providers). The Cotter Injunction declared that the Claimants were entitled to possession of CPL and alternative service provisions were set out because many of the named Defendants had not provided postal or e-mail addresses or other methods of communication and had not instructed lawyers to accept service on their behalf. The various methods of service were proscribed and included affixing documentation to wooden stakes in the ground at CPL and putting documents to be served in the post box constructed by protesters at CPL and fixing copies of the documents to the entrance at CPL and publishing the documents on various websites. These various alternative service methods were deemed effective by the Cotter Injunction. In addition anyone affected by the Cotter Injunction was permitted to apply to vary but was required to notify the Claimants’ solicitors 48 hours before any hearing of any such application to vary and to provide their names and addresses for service. A directions hearing was provided for to determine the steps required in future.

By a Statement of Case also dated 8th of June 2022 and issued on the same day, the Claimants asserted that five named defendants: D18, 31, 33, 61 and 62 and two proposed Defendants namely D64 and D65 were in breach of the Cotter Injunction. The breaches were laid out extensively in the Statement of Claim together with the evidence in support of the assertions that the Defendants were in contempt of court. The Statement of Claim attached the Cotter Injunction and a plan of the site of CPL.

By notice of application also dated the 8th of June 2022 the Claimants applied for an urgent directions hearing for the future conduct of the claim for committal to prison of the seven Defendants listed above for breaches of the Cotter Injunction.

On the 14th of June 2022 an order was made by this Court which dealt with the directions governing the application for committal to prison of the seven Defendants. In that order I joined D64 and D65 to the proceedings on the Claimants’ application. I granted permission to the Claimants to rely on the affidavits set out in paragraph 3 of the order. I granted permission to amend the application notice and Statement of Case. I made orders for alternative service on the Defendants because they had not provided postal addresses or electronic addresses and had not instructed lawyers. The alternative service provisions in paragraph five of that directions order were for postal service, electronic service, service on those thought to be hiding in the tunnels under CPL, service on lawyers and service at websites. I also ordered at paragraph 11 that any Defendant who wished to rely on evidence at the final hearing should serve and file the evidence by the 27th of June 2022. Tying the permission to rely on evidence to the direction I gave at paragraph 8, I ordered that the Defendants had to, by the 20th of June 2022, provide the Court and the Claimants’ solicitors with a postal address or an e-mail address at which they could be served with documents relating to the proceedings. I also ordered that no evidence other than evidence filed in compliance with the directions order would be admitted at the hearing save with permission of the Court. An application would have to be made under CPR part 23 for such permission.

The committal hearing was listed for four days starting on the 25th of July 2022 in that directions order. The Defendants were required to attend the hearing in person. The Defendants were warned that if the Court, at the hearing, was satisfied that the Defendants or each of them had been served in accordance with the alternative service provisions in the order then the Court could proceed in the absence of those Defendants. I also ordered that evidence as set out in the witness statements filed by the parties would stand as evidence in chief at the committal hearing. I ordered the parties to file and serve bundles containing their evidence and any authorities by the 15th of July 2022 and any skeleton arguments by the 21st of July 2022.

On 25^th July 2022 at the hearing of the claim for committal to prison of the seven Defendants, D61 David Buchan and D64 Stefan Wright were not represented by solicitors or by barristers and did not attend. The other five Defendants did attend and were represented by solicitors and counsel.

At the hearing Defendants D31 and D62 admitted the pleaded breaches of the Cotter Injunction and apologised to the Court and, through their lawyers, had negotiated undertakings which they offered to give to the Court. Those undertakings were accepted by the Claimants and those two Defendants and all parties recommended to me that those undertakings should be sufficient to deal with the breaches of the Cotter Injunction committed by those Defendants.

I invited but did not require those Defendants to give evidence in addition to hearing their counsel provide mitigation. Both were brave enough to do so. Both impressed me with their commitment to conscientious objection to projects that they, in their own minds, considered were environmentally damaging. I made no findings in relation to their conscientious objections but I did provide, during the course of the hearing, a judgment accepting those undertakings. Both Defendants and their lawyers then left Court. The Appendices hereto contain the approved transcript of that judgment.

In relation to the undertakings, it may be helpful to those reading this judgment to know that Rory Hooper (who has no “also known as” or AKA as far as I am aware), who was D31, was aged 17 at the time of his breaches of the Cotter Injunction. He was 18 at the time of the hearing. He had no previous relevant antecedents, apologised to the court and gave a two year undertaking not to breach HS2 court orders or interfere with the HS2 construction in future. He accepted that he had wasted a great deal of taxpayers money. His protests were non violent and he did not endanger others. He happens to be the son of Daniel Hooper, a well known environmental objector who goes by the name of “Swampy”, but his family history was not relevant to the decision I took to permit his undertakings to be given in exchange for the Court passing no other sanctions for breach of the Cotter Injunction.

In relation to Leanne Swateridge, D62, (AKA Flowery Zerbra) I likewise accepted the parties’ suggestion that the undertaking she provided to the Court was sufficient to deal with her breaches of the Cotter Injunction. She likewise gave evidence to this Court, apologised, promised never to breach an injunction relating to the HS2 project again and gave her reasons for her conscientious objections. She accepted that she had wasted a great deal of taxpayers’ money. Her protests were non violent and she did not endanger others.

The hearing of this claim for committal to prison of the other 5 Defendants continued until the 27th of July and that part relating to D33 only was adjourned over to 22 September because D33 applied to submit more evidence in mitigation.

The witness evidence from the Claimants which was accepted by the represented Defendants was as follows -

During the hearing I granted applications by D18, 33 and 65 for permission to rely on late served witness statements from those Defendants.

I heard evidence in their own mitigation from the following Defendants:

I also heard evidence from Ian Dent who was called by the Claimants and dealt with matters relating to the tunnels dug by and occupied by various of the Defendants.

After the adjournment D33 served and filed the following additional evidence:

At the hearing the three remaining attending Defendants (D18, D33, D65) stated through their counsel that they did not dispute the main points of the Claimant’s evidence set out in the various witness statements filed and served for the hearing.

The findings I make below are made on the criminal standard so that I am sure as to these findings of fact.

The opposers to the HS2 project consist of a broad range of groups including Extinction Rebellion, HS2 rebellion, Stop HS2 and others. The aims generally of these protesters were to obstruct and cause direct harm to the HS2 project, to increase the costs thereof and to delay it and to stop it.

The HS2 organisation and the Secretary of State for Transport work together to construct the railway from London to the North of England. The whole project is funded by the taxpayer and so any increase in costs or delays are funded by each and every taxpayer in England and Wales.

So far as a general figure for the security costs is concerned for the whole project the amount is approximately £121,000,000 to date.

I find on the evidence that the security costs for the events at CPL alone amount to approximately £8,000,000. The Defendants before me at this hearing and the many other protesters who have attended at or lived at CPL are responsible for the vast majority of that £8 million and I so find as a fact.

The direct action taken by protesters in relation to CPL, which is owned by HS2, included trespass, criminal damage, the construction of wooden living accommodation, the construction of tree houses, the digging of tunnels under the earth and various ancillary acts of obstruction to the works carried out by HS2 and their subcontractors in areas nearby.

The occupants of CPL, or at least some of them, had come over from previous protester camps in Wendover and before that in Euston Square in London. They, or some of them, had been the subject of previous injunctions, whether named or not.

Quite a few previous injunctions have been granted against HS2 protesters. For instance Mr. Justice Holland granted an injunction in 2019 under the reference EWHC 1437. Other injunctions were granted in relation to HS2 protester camps set-up at Harville Road, Hillingdon and at Cubbington in Warwickshire.

The Claimants asserted and Mr. Justice Cotter accepted that there was a distinct risk of further illegal activity from the protestors at CPL. The evidence put before him included interviews by various Defendants posted on Facebook pages and in the national press including one in the Guardian newspaper on the 13th of February 2021. Various Defendants, including D33, asserted publicly that they tunnelled to stop roadbuilding and railway building. The Defendant protestors asserted that they had a “Go Fund Me” page. The protesters published online that in relation to CPL, HS2 would have to spend £4 million evicting them for their multiple trespasses on the land at CPL.

As I have set out above I find that the Defendant protesters’ estimate of the costs which they had forced upon the taxpayers in England and Wales were actually double what they estimated they would create through their direct action. None of the Defendant protesters are taxpayers so they are not paying the bill themselves.

HS2 and the Secretary of State for Transport applied for a track wide injunction and that application was heard by Mr. Justice Knowles. Judgment was handed down on 20^th September 2022.

The Claimants’ evidence, which I find was proven, showed that as a generality the protesters used various methods to force HS2 to incur taxpayers expenses as a result of their direct action. Those included “lock on” devices, tunnels, theft, staff abuse, access obstruction, criminal damage, spiking trees, fly tipping, occupying sites, at height protests and the like.

The protesters established their camp at CPL in approximately March 2021. The protesters called CPL “Bluebell Wood”. It is near a work area organised by Balfour Beatty, a subcontractor of HS2. Balfour Beatty obtained an injunction on the 17th of March 2022 against various protesters.

Various structures were built at CPL by protesters including wooden accommodation and tree houses and a post box.

In relation to CPL, James Dobson gave evidence that the Claimants and their staff and subcontractors were able to identify: William Harewood, Elliot Cuciurean, David Buchan, Stefan Wright and Liam Walters at the site. These Defendants were known to James Dobson from the previous sites.

Mr Dobson gave evidence that after the possession order was made by Mr. Justice Cotter the writ of possession was issued and served. Then many verbal warnings were given to the protestors on the site. On the 10th of May 2022 enforcement officers went to the site, issued warnings, took videos and cleared the site of the protestors who were above ground. Those protestors included Rory Hooper, David Buchan, Leanne Swateridge and others.

However I find that 4 Defendants stayed in the tunnel from 10 May 2022 onwards. Those were William Harewood; Elliott Cuciurean; Stefan Wright and Liam Walters. They stayed deliberately and in defiance of the Cotter Injunction and in defiance of the application to commit them to prison for breach of the Injunction. They stayed deliberately in defiance of the directions which I made for the case management of the committal application. They deliberately did not attend the pre-trial review to manage the final hearing. They breached the directions order requiring them to provide contact details for service. They chose not to take part in the process until day 1 of the hearing and even then two did not attend. They served their evidence late.

Earlier during the hearing I made findings of fact in relation to each Defendant. I was provided with evidence through the Claimants’ witness statements and certificates of service which proved to me, so that I was sure, that each of the 7 Defendants had been served with: the Cotter Injunction, the claim for committal to prison for breach, the directions order which I made and all of the evidence in support provided by the Claimants. Reference should be made to those detailed findings which are in the transcript of the hearing. I shall incorporate those decisions into this judgment if the transcripts are made available to me at a later date. It should be said here that the following Defendants admitted that they were properly served with all of the above documents. Those admissions were provided by: William Harewood, Rory Hooper, Elliot Cuciurean, Leanne Swateridge and Liam Walters who are D18, D31, D33, D62 and D65.

In addition, taking each Defendant in turn, earlier in the hearing I made findings of fact on the basis that I was sure in relation to each of the pleaded allegations of breach of the Cotter Injunction which were set out in the Statement of Claim that each was proven. I record here that the following Defendants admitted all of the breaches alleged against them in the Statement of Claim: William Harewood, Rory Hooper, Elliott Cuciurean, Leanne Swateridge and Liam Walters.

As for the two Defendants who failed to attend the hearing, pursuant to the directions order dated 15th June 2022, in which I gave an express warning that I would proceed in the absence of Defendants who failed to engage, I made findings of fact in relation to their breaches of the Cotter Injunction based on the evidence put before the Court by the Claimants. My judgment in relation to those findings of fact was provided verbally during the hearing and will be inserted into the written version of this judgment or an appendix hereto if the transcript is made available to me.

In summary the proven breaches fall into two categories. All seven Defendants were at the CPL site in breach of the Cotter Injunction and failed to leave it. The effects of being at the CPL site were that the taxpayer incurred enormous additional expense on security and other staff who had to deal with the protesters onsite. It also delayed the progress of this taxpayer funded construction.

The second category of breach of the Cotter Injunction concerns the four men who descended into the tunnels under CPL and stayed there after the 10th of May 2022. This direct action was not only a deliberate flouting of the Cotter Injunction but also of the authority of the civil justice system and of Court orders generally. These Defendants knew that they had been ordered off the land and refused to go. These Defendants knew that they were putting the taxpayer through HS2 to very substantial expense. These Defendants also knew that they were potentially putting the security staff of HS2 and the underground emergency workers at risk if any part of the tunnel system collapsed.

I heard evidence from Ian Dent about the construction of the tunnels. He works with authorised High Court enforcement officers. He is a confined spaces specialist enforcement officer. He has 19 years of experience in removing persons from confined spaces. Some of that was experience gained at Euston Square Gardens in January and February 2021 and at Wendover in October and November 2021, both of which are HS2 sites. He was involved throughout the operation at CPL from 10th of May 2022 onwards.

I find the following facts on the basis that I am sure arising from his evidence. Following the discovery of the main shaft into the tunnels an initial assessment of the spoil which had been removed from the tunnel was carried out.

HS2, with advice from other experts, decided that the risk to emergency workers was too great for them to enter the tunnel and remove the protesters. At that time the four Defendants were not in need of rescue and so they were left in the tunnels. The ground at CPL is made-up of a mixture of sandstone and limestone bedrocks and a conglomeration of pebbles and sandy soils. That conglomerate was of concern because as it dried the risks of breaking up and collapsing would increase.

HS2 provided a hard wired communication system and monitored the air quality of those in the tunnel and purged the air regularly when it became unsafe. This system was used to reduce the risk of drying the walls which would have arisen or been increased by a more regular changing of the air by HS2. Paramedics were brought on site and kept on site 24 hours a day seven days a week just in case any part of the tunnels did collapse. Warnings were issued to the tunnel occupants not only on the 10th of May but many many times thereafter. The four Defendants displayed a blasé attitude to health and safety and to the dangers they had created. They mocked the warnings given to them.

Mr Dent considered that the dangers in the tunnel were quite exceptional. He made verbal and visual contact with the four Defendants on many occasions all of which were videoed or logged. He warned them many times. They laughed in his face many times.

On the 18th of June 2022 Liam Walters left the tunnel. He had occupied it for 39 days.

On the 25th of June 2022 security staff saw the three other Defendants emerge from a hole 4 metres past the fence on land adjoining CPL which was a field. These three Defendants, William Harewood, Elliot Cuciurean and Stefan Wright had dug a wormhole from the tunnels on CPL to the field and escaped that night.

After all the Defendants had left the tunnels Mr. Dent and his team entered the tunnels and I have seen photographs of the inside of the tunnel system and of the wormhole dug by the Defendants. The tunnel was stuffed with refuse and spoil. In Mr. Dent’s opinion the tunnel was poorly shored up. Some sections were completely without shoring. The wormhole had a very tight diameter and was, in Mr. Dent’s opinion, very dangerous. Mr. Dent considered the construction of “shaft one” was uniquely dangerous giving rise to a risk of collapse. Mr. Dent discovered that the very top of the tunnel had been capped with a concrete mix. He stated that “this method of construction meant that any attempts to remove the concrete cap and to remove and or replace the ad hoc shoring with more robust shoring would have released in the region of two tonnes of loose earth upon anyone in shaft one and below.” Overall Mr. Dent’s opinion was that the tunnels at CPL were of extremely poor and unsafe construction and were highly unstable. There was a serious risk of collapse at anytime. It was his opinion that the Defendants put themselves and any potential rescuers in danger and “at risk of serious injury or death”. I accept Mr. Dent’s evidence and find that the tunnel construction was very unsafe and put the lives of the four Defendants at risk and potentially the lives of the rescue services. It also put the life of Mr. Dent and his staff at risk of injury or death when clearing out the tunnel after the Defendants left.

It is apparent from the evidence put before me that after the four Defendants left the tunnel various organisations boasted on social media and one Defendant gave an interview to the BBC boasting of this behaviour. I find it difficult to see how it can be a matter of pride for four men to put their lives at risk and to put the lives of emergency workers at potential risk and to waste millions of pounds of taxpayers’ money.

Contempt of Court proceedings have a procedure which is set out in CPR 81. That procedure governs the form of the application and the content of it and the form and content of the evidence. The Claimants in this case have studiously followed the relevant procedures. That procedure entitles but does not require the Defendants to speak before sentence and I gave each Defendant that opportunity and each who was present took it. It also entitles the Court to proceed in the absence of a Defendant which is the route I have had to take in relation to David Buchan (until he turned up) and Stefan Wright.

All of the Defendants before the Court admitted their breaches and the two Defendants who were absent have been found to be in breach as pleaded.

The punishment or sanction available to this Court for contempt of Court includes imprisonment of up to two years, a fine, confiscation of assets or other punishment permitted by law. The maximum sentence of imprisonment is 2 years. Any sentence of imprisonment may be combined with a fine. See the Contempt of Court Act 1981. In addition this Court is entitled to suspend any sentence of imprisonment pursuant to its inherent powers. Finally pursuant to the Criminal Justice Act 2003 section 258 contemnors who are sent to prison are released after serving one half of the sentence.

The factors that this Court should take into account are well known and are set out in the Supreme Court Practice and also in National Highways Ltd v Ana Heyatawin & Ors [2021] EWHC 3078. The President of the Queen’s Bench Division and Chamberlain J. described the key general principles as follows:

“(a)T he court has a broad discretion when considering the nature and length of any penalty for civil contempt. It may impose: (i) an immediate or suspended custodial sentence; (ii) an unlimited fine; or (iii) an order for sequestration of assets;

(b)

The discretion should be exercised with a view to achieving the purpose of the

contempt jurisdiction, namely (i) punishment for breach; (ii) ensuring future compliance with the court’s orders; and (iii) rehabilitation of the contemnor;

(c)

The first step in the analysis is to consider (as a criminal court would do) the culpability of the contemnor and the harm caused, intended or likely to be caused

by the breach of the order;

(d)

The court should consider all the circumstances, including but not limited to: (i) whether there has been prejudice as a result of the contempt, and whether that

prejudice is capable of remedy;

(ii)

the extent to which the contemnor has acted under pressure;

(iii)

whether the breach of the order was deliberate or unintentional;

(iv)

the degree of culpability;

(v)

whether the contemnor was placed in breach by reason of the conduct of others;

(vi)

whether he appreciated the seriousness of the breach;

(vii)

whether the contemnor has cooperated, for example by providing information;

(viii)

whether the contemnor has admitted his contempt and has entered the equivalent of a guilty plea;

(ix)

whether a sincere apology has been given;

(x)

the contemnor’s previous good character and antecedents; and

(xi)

any other personal mitigation;

(e)

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 of the court;

(f)

The maximum sentence is 2 years’ imprisonment: s. 14(1) of the Contempt of Court Act 1981. A person committed to prison for contempt is entitled to unconditional release after serving one half of the term for which he was committed: s. 258(2) of the Criminal Justice Act 2003;

(g)

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 court’s

jurisdiction;

(h)

A sentence of imprisonment may be suspended on any terms which seem

appropriate to the court.”

When considering sanctions I also take into account the guidance provided in HS2 v Maxey & Hooper [2022] EWHC 1010, a decision of Linden J. That decision concerned Daniel Hooper, the father of Rory Hooper, D31 in these proceedings.

I also take into account the decision of the Court of Appeal in HS2 v Cuciurean [2022] EWCA Civ 661 in relation to costs awards.

I also take into account the decision of the Court of Appeal in HS2 v Cuciurean [2021] EWCA Civ 357 in relation to the ingredients for liability for contempt and the custody threshold. In particular paragraph 81:

“81.

I see no grounds for disagreement with the Judge’s conclusion that the custody threshold was crossed in this case. Contrary to the submissions of Ms Williams, there is no precise read-across from the statutory custody threshold in criminal sentencing and the standard that applies in contempt: see [18] above. The Judge cited binding authority on the right approach in the present context, and applied it conscientiously. It is, with respect, untenable to suggest that this case could and should have been dealt with by some lesser sanction. The submission that a mere finding of contempt would have been sufficient pays no heed to the need for deterrence, and the importance of upholding the rule of law. I am not impressed with the submission that in arriving at the period of six months the Judge took too literal an approach to the number of contempts, given that there were several incidents close in time. Again, this is to examine the reasoning under a microscope, when what matters is the overall outcome.”

Furthermore I take into account the decision of Marcus Smith J. in HS2 v Cuciurean [2020] EWHC 2723 on sanctions for contempt of court. Those listening to and reading this judgment will realise that although there was a different judge that case concerned the same Claimants and D33 to this claim and involved the same solicitors and barristers. That decision on sanctions imposed on Mr. Cuciurean went up to the Court of Appeal and the suspended sentence of imprisonment was reduced from 6 to 3 months.

When imposing the sanctions set out below I take into account the Defendants’ Art 10 and 11 rights under the European Convention on Human Rights and consider the sanctions to be proportionate and necessary in the light of the facts set out above and the rights of HS2 and the 2^nd Claimant in relation to their land and staff and contractors and the public finances.

The sanctions for all except for D33 were imposed on 27 July 2022 and took effect from that date. This judgment in writing was delivered in Court on 23rd September 2022 after the adjourned sanctions hearing dealing with D33.

Lack of co-operation: You were not in Court for the days 25 and 26 July. You took no part in these proceedings until today. You deliberately choose to flout the Court’s Injunction (the Cotter Injunction) and the directions and the process. You arrived this morning.

In evidence you accepted that you had known of the injunction and the committal application against you. I reject your evidence that you were unaware of the court proceedings. You told me that you received the court documents (via Facebook) and chose not to read them. Choosing not to read Court documents is foolish and unwise.

Breaches: You entered and stayed in CPL on 4 occasions: 20^th and 26^th April 2022, 10^th May 2022 and 28^th May 2022. You ignored the multiple warnings given to you politely and verbally by the HS2 security staff. You were a regular and integral part of the direct action process.

I judge that your breaches of the Cotter Injunction were serious and that you did not care about the orders made by the Court. You do not consider yourself bound by Civil Justice and do not recognise the authority of the Court. You deliberately and contumeliously breached the Court’s Injunction.

Your culpability is moderate in my judgment. You did not take part in the tunnel protest. You stayed above ground. You put no one’s life at risk. You were not violent.

The harm that you helped to cause is set out above and includes huge expense to the taxpayers in England and Wales via damage the HS2 project. That harm also involved wasting the time and effort of hundreds of HS2 staff and contractors, of the police and of the emergency services. The limited taxpayers’ resources of our society would have been better spent on the NHS, social care, the environment, the underprivileged and other needy issues than on chasing around after you as you played your civil disobedience games in breach of the Cotter Injunction

Insight: You have shown very little balance in your insight or understanding of the effects of your actions on society and taxpayers’ funds, on the emergency services and on the Court system. You have shown no remorse and made no apology to the Court. Quite the opposite you said you refused to apologise for the contempt. You asserted that you “don’t read Court orders”.

You gave evidence to me in mitigation in a cocky and offhand way. You told me that you plan to continue your protests against HS2. Your “thumbs up” over Facebook in answer to the service of Court proceedings was grossly and intentionally unhelpful.

Mitigation: you have provided very little. However, I work on the basis that you have no relevant antecedents. I accept you were non violent and non threatening. Having seen you give evidence to me I only just accept (on balance) that you appear to be a conscientious objector. I find as a fact that you are verging more towards being a chaos merchant instead of being a thoughtful protester.

I also take into account that you did not promise to the Court to cease direct action involving breaches of civil law relating to HS2.

Admission: You have admitted the breaches in full. I take that into account.

I have taken into account the Sentencing Guidelines. I consider that your breaches take you well past the custody threshold.

Fine: I consider that you should pay a fine of £1,500 as part of the sanction for your breaches.

Imprisonment: I consider that a fine would not be a sufficient punishment for your breaches nor would it have sufficient effect on your thinking to prevent you repeating your contemptuous behaviour against HS2 and the taxpayers funding the project and the Courts in future.

I pass a sentence of imprisonment on you David Buchan for a term of 100 days taking into account your mitigation.

Suspension: I have considered suspending the term because this is your first contempt but your utter disregard for the Cotter Injunction and this Court process and your lack of insight and your lack of apology and your future implied threats of more action have prevented me from suspending the term.

You will be entitled to release after serving half the term. You have the right to appeal by notice filed and served 21 days from today.

You are absent. You failed to appear at this hearing. You have completely and deliberately ignored the Court process.

Your breaches consisted of being a tunnel dweller for 46 days in direct and deliberate contravention of the Cotter Injunction which I have found you were served with and knew about.

I consider that your breaches were very serious indeed. They were long lasting. They were contumelious. They were potentially life threatening for you, your mates in the tunnel and the emergency services deployed to help you should the tunnel collapse occur. Your breaches caused real harm to taxpayers and the HS2 project and used up judicial time and resources.

It is clear to me that the tunnel was occupied expressly to frustrate and delay the repossession of CPL in breach of the Cotter Injunction.

The harm that you helped to cause is set out above and includes huge expense to the taxpayers in England and Wales and to HS2. That harm also involved wasting the time and effort of hundreds of HS2 staff and contractors, of the police and of the emergency services. The limited taxpayers’ resources of our society would have been better spent on the NHS, social care, the environment, the underprivileged and other needy issues than on chasing around after you as you played your civil disobedience games in breach of the Cotter Injunction. The harm you caused also included the need for underground emergency service workers to be present on site throughout the occupation and thereafter to clear the tunnel and make it safe and to repair the ground in the ancient forest you have deliberately scarred and defiled.

Insight: You have shown no adult, mature or balanced understanding of the effects of your actions on society and taxpayers funds, on the emergency services and on the Court system. You have shown no remorse and made no apology to the Court.

Mitigation: you have provided none. However I work on the basis that you have no relevant antecedents. I accept you were non violent and non threatening.

I have taken into account the Sentencing Guidelines. I consider that your breaches take you well past the custody threshold.

Fine: I consider that you should pay a fine of £3,000 as part of the sanction for your breaches.

Imprisonment: I consider that a fine would not be a sufficient punishment for your breaches nor would it have sufficient effect on your thinking to prevent you repeating your contemptuous behaviour against the Court, HS2 and the taxpayers.

I pass a sentence of imprisonment on you Stefan Wright for a term of 332 days. I have calculated this by imposing 7 days for every day you spent under ground.

Suspension: I have considered suspending the term because this is your first contempt but the danger you created by your “Heath Robinson” tunnel and your utter disregard for the Cotter Injunction and this Court process and your lack of remorse or insight has prevented me from suspending the term. A bench warrant will be issued for your arrest and detention.

You will be entitled to release after serving half the term. You have the right to appeal by notice filed and served 21 days from today.

You have appeared at this hearing and are present now. You engaged late, ignoring the Cotter Injunction and ignoring my own directions order of 15 June 2022, but since late June 2022 you have engaged and taken part in the Court process.

Breaches: Your breaches consisted of being a tunnel dweller for 46 days in direct and deliberate contravention of the Cotter Injunction which I have found you were served with and knew about.

I consider that your breaches were very serious indeed. They were long lasting. They were contumelious. They were potentially life threatening for you, your mates in the tunnel and the emergency services deployed to help you should the tunnel collapse occur. You used up the public emergency resources who were on standby whilst you broke the Injunction sitting in the tunnel.

It is clear to me that the tunnel was occupied by you expressly to frustrate and delay the repossession of CPL.

The harm that you helped to cause is set out above and includes huge expense to the taxpayers in England and Wales and to HS2. That harm also involved wasting the time and effort of hundreds of HS2 staff and contractors, of the police and of the emergency services. The limited taxpayers’ resources of our society would have been better spent on the NHS, social care, the environment, the underprivileged and other needy issues than on chasing around after you as you played your civil disobedience games in breach of the Cotter Injunction. The harm you caused also includes the need for underground emergency service workers to clear the tunnel and make it safe and to repair the ground in the ancient forest you have deliberately scarred and defiled.

Insight: You gave evidence in mitigation and I was impressed. You have shown an understanding of the effects of your actions on society and taxpayers funds, on the emergency services and on the Court system. You have apologised and I judge that you apology really does spring from remorse and an understanding of your responsibilities in society and the adverse effects of your contempt of Court, not merely a fear of punishment. I am sure of that. You are looking for other ways to pursue your causes and passions and you have a greater understanding now of the lack of a real or positive impact of your tunnel protest.

Mitigation: You are an earth protestor. I find that you are a conscientious objector. You have provided character references. I have read them and take them into account. I should mention that without addresses for each witness they lose just a little part of their force, but not all of it.

Admission: You have admitted the breaches in full.

Announcement: I take into account the public announcement you have made, which was read onto the Court record, that you are going to focus on positive action instead of direct action. You will not be involved in any anti HS2 action in future.

You have no relevant antecedents. I accept you were non violent and non threatening. Your witness statement served late, disclosed your determination to maintain that what you did was the correct way to protest. Court orders are not issued lightly or frivolously. They are issued carefully and within long established legal principles. However having heard your evidence to me I was convinced that you understand the seriousness of your breaches and why Court orders in a civil, organised, caring society are a vital part of the fabric keeping us all safe and secure.

I take into account that you were a chef until Covid struck and that you wish to return to education in September to learn to build sustainable energy equipment.

I take into account your admission of the breaches.

I have taken into account the Sentencing Guidelines.

I consider that your breaches take you well past the custody threshold.

Fine: I consider that you should pay a fine of £3,000 as part of the sanction for your breaches.

Imprisonment: I consider that a fine would not be a sufficient punishment for your breaches nor would it send out the right message to others who use direct action to protest and seek to dig tunnels or for your contemptuous behaviour against HS2 and the taxpayers and the Courts.

I pass a sentence of imprisonment on you for a term of 332 days. I have calculated this by imposing 7 days for every day you spent under ground. I reduce that to 184 (46 days x 4) days as a result of the mitigation you have provided through you counsel Ms. Harriett Johnson.

Suspension: I have considered suspending the term because this is your first contempt. Because you have gained insight and expressed that clearly. You showed real remorse and apologised sincerely. You engaged with the Court process. You promised to cease fruitless and grossly expensive direct action. You are determined to return to a somewhat more normal life.

Your sentence is suspended for 2 years from today.

Breaches You breached the Cotter Injunction by staying in the tunnel at CPL from 10.5.2022 to 11.7.2022: 39 days. Then you climbed out of the entrance and gave yourself up.

You admit that you committed the contempts of Court as set out in the Statement of Claim in paragraphs 54-59 in the full knowledge of the Cotter Injunction and deliberately.

Aggravating factors You accept that you did not engage with the Courts or the lawyers for HS2 until after you came out of the tunnel. You did not serve your evidence in accordance with the Court’s directions. However from then onwards you did engage, you served a witness statement, you gave evidence to me direct and you provided mitigation.

Culpability No one forced you to breach the injunction you take full responsibility for your actions. You flouted a Court’s order.

It is clear to me that the tunnel was occupied by you expressly to frustrate and delay the repossession of CPL.

Aggravating factors: You made a BBC interview in which you indicated that there was 1 person left in the tunnel. That was to mislead HS2 into waiting even longer before going in to clear it out perhaps. It was obstructive.

The harm that you helped to cause is set out above and includes huge expense to the taxpayers in England and Wales and to HS2. That harm also involved wasting the time and effort of hundreds of HS2 staff and contractors, of the police and of the emergency services. The limited taxpayers’ resources of our society would have been better spent on the NHS, social care, the environment, the underprivileged and other needy issues than on chasing around after you as you played your civil disobedience games in breach of the Cotter Injunction. The harm you caused also includes the need for underground emergency service workers to clear the tunnel and make it safe and to repair the ground in the ancient forest you have deliberately scarred and defiled.

Insight: You gave evidence in mitigation and I was partially impressed. You have shown an understanding of the effects of your actions on society and taxpayers funds, on the emergency services and on the Court system. You have apologised and I judge that your apology sprang from some remorse and some understanding of your responsibilities in society and the adverse effects of your contempt of Court, not merely a fear of punishment. You told me that the HS2 direct action you took in the tunnel was “a massive waste of resources for the Courts and was not a constructive way of going about things. I do not know if it has achieved our aims”. I take that into account.

You are looking for other ways to pursue your causes and passions and you have a greater understanding now of the lack of a real or positive impact of your tunnel protest.

Mitigation: In mitigation Mr Wagner raised that this was your first contempt, you have no previous relevant contempts and you are young, you are only 24. You admitted the breaches in full. You have apologised.

I have taken into account the Sentencing Guidelines.

I consider that your breaches take you well past the custody threshold.

Fine: I consider that you should pay a fine of £2,000 as part of the sanction for your breaches.

Imprisonment: I consider that a fine would not be a sufficient punishment for your breaches nor would it send out the right message to others who use direct action to protest and seek to dig tunnels or for your contemptuous behaviour against HS2 and the taxpayers and the Courts.

I pass a sentence of imprisonment on you for a term of 273 days. I have calculated this by imposing 7 days for every day you spent under ground (39 x 7 = 273). I reduce that to 156 days (39 days x 4) days as a result of the mitigation you have provided through you counsel.

Suspension: I have considered suspending the term because this is your first contempt and you are young, because you have gained some insight and expressed that to me. You showed remorse and you apologised. You engaged with the Court process. You promised to cease fruitless and grossly expensive direct action. You are likely to return to a more productive life.

Your sentence is suspended for 2 years from today.

Breaches You breached the Cotter Injunction by staying in the tunnel at CPL from 10.5.2022 to 25.6.2022, so for 46 days. Then you burrowed out with others by creating a dangerous worm hole and escaped across a field outside CPL.

You admit that you committed the contempts of Court as set out in the Statement of Claim in paragraphs 35-39 in the full knowledge of the Cotter Injunction and deliberately.

You were present in Court when Mr. Justice Cotter made the injunction.

No one forced you to breach the Cotter Injunction, you take full responsibility for your actions. You flouted this Court’s order. You did so intentionally. You intended to cause massive expense to HS2, an organisation wholly paid for by the taxpayers in England and Wales. You have protested at other HS2 sites before many times. You have been bound by previous Court injunctions relating to HS2. You have previously been bound by a suspended sentence for contempt of Court orders. Evidence of your approach was posted by you on your own Facebook page on 24 October 2021 where you wrote: “goodbye suspended sentence, injunction breaking here we come”. I consider such a statement is a reference to the expiry of the suspended sentence imposed by Mr. Justice Marcus Smith. That sentence resulted from you, D33 having been found in contempt of court for 12 separate breaches of an interim injunction, imposed by Mrs. Justice Andrews (as she then was) on 23 March 2020 to prohibit trespass on HS2 land.

I find as a fact that you knew exactly what you were doing and intended to flout the Court’s orders despite previous Court warnings relating to the consequences of doing so. You intended to encourage others by your actions. I consider that your culpability is high for these further contempts.

It is clear to me that the tunnel was occupied by you expressly to frustrate and delay the repossession of CPL, to cause disruption to the construction and to cause huge expense and to waste the time of the emergency services. Tunnelling is one step beyond locking on which itself is one step beyond mere trespass when viewed in the scale of intentional obstructions to make removal more difficult for the emergency services and police or the Claimants in this case.

The harm that you helped to cause is set out above in this judgment and included huge expense to the taxpayers in England and Wales through HS2. That harm also involved wasting the time and effort of hundreds of HS2 staff and contractors, of the police and of the emergency services. The limited taxpayers’ resources of our society would have been better spent on the NHS, social care, the environment, the underprivileged and other needy issues than on chasing and waiting around after you as you played your underground civil disobedience games in breach of the Cotter Injunction. The harm you caused also included the need for underground emergency service workers to clear the tunnel and make it safe and to repair the ground in the ancient forest you have deliberately scarred and defiled.

Aggravating factors You accept that you did not engage with the Courts or the lawyers for HS2 at all until after you came out of the tunnel. You did not attend the pre-trial review about which I am sure that you were aware. You did not raise any evidential or legal issues which would be relevant to the final hearing at the pre-trial review. You did not serve the evidence which you now rely upon in accordance with the Court’s directions.

On the other hand from late June onwards you did engage, you instructed lawyers, applied for legal aid and you served your first witness statement, you gave evidence to me direct and you provided mitigation through your counsel. However you did not do so at the main hearing because you did not gather your evidence on time. Instead you sought an adjournment to put in more evidence because you had not prepared the evidence you wished to rely upon before the main hearing. You increased the costs and expenses of HS2 and the Secretary of State as a result.

Previous contempts: You were found guilty of contempt by Marcus Smith J. in October 2020. You were sanctioned with a term of imprisonment which was suspended for 1 year on conditions. That suspension ended in October 2021 and despite that a few months later you were in CPL, trespassing, causing trouble and flouting the Cotter Injunction.

Later suspended sentence: You also have a previous conviction for aggravated trespass (see DPP v Cuciurean [2022] EWHC 736 – March 2022 and the subsequent Magistrates Court decision). That conviction related to a tunnel you dug in 2021 and occupied at Shaw Lane, Staffordshire forming part of HS2 land. You refused to leave despite verbal warnings and an underground team was called to the scene. The costs of the eviction process were £195,000. You were acquitted and involved as Respondent to the appeal from the acquittal in the Magistrates Court. In March 2022 the Divisional Court remitted the case to the Magistrates Court with a direction to convict you of the offence. You were actually convicted after the events which concern me but before the sanctions and breach hearing in this case. You were given another suspended sentence. You committed the relevant contempts of Court after that case had been remitted with a direction to convict you. Even that knowledge did not dissuade you.

Insight: You gave evidence in mitigation in two witness statements. Despite your assertions, you have not shown to my satisfaction any real understanding of the effects of your actions on society and taxpayers funds, on the emergency services and on the Court system. You assert that you were not motivated by defiance of a Court order but I find those words to be a hollow fallacy. In relation to the last contempt you assert you were very upset and did not consider yourself to have done anything wrong. That is a window into your muddled and utterly self centred thinking.

In addition you attempted to assert at the start of the main sanctions hearing that you did not consider that you personally were bound by the Cotter Injunction due to a misreading of or a technical point taken on the terms which you adopted after talking to your lawyers. I have already ruled on that application and dismissed it. The approved transcript of my judgment is in the Appendix to this judgment.

Mitigation: In mitigation you assert that you are a conscientious protester. You assert that you have been a conscientious campaigner for 3 years. You assert that by delaying the HS2 project you are seeking to avert an “environmental catastrophe”. You assert you are concerned about the carbon foot print of the use of heavy machinery and the destruction of ancient woodland and habitats. You have not been able to explain how your tunnelling and obstruction makes any such contribution to avoiding an environmental catastrophe save for the mere assertion. You assert that the HS2 project is a “scam”.

You asserted in your witness statement that a new project should instead be built. You called it a “transport network that has sufficient interconnectivity to present a real alternative to travelling by car”. It is wholly unclear to me how that would be built nationwide without heavy machinery, a lot of it, which would give off fumes.

It is right and clear that conscientious protestors may usually be entitled to a Cuadrillav PU [2020] EWCA Civ 9, “discount” in contempt proceedings when the Court considers sanction. However in my judgment each such discount depends on:

In the case of you, Elliott Cuciurean, it is no longer a dialogue between the Courts and you. It is a monologue from the Courts with you, Cuciurean, refusing to listen and engage, show real remorse or responsibility and publicising your intent to continue to flout the orders of this Court.

As the Supreme Court in Attorney General v Crossland [2021] UKSC 15 (Judgment of the whole Court) made plain at para. [47]:

“there is no principle which justifies treating the conscientious motives of the protestor as a licence to flout court orders with impunity”.

I take into account the 5 character referees’ witness statements you have put before the Court.

Apology: I did not find your apology in your first witness statement either persuasive, heartfelt or insightful. The wording of it was mealy mouthed and it lacked persuasiveness.

Expert evidence: I have taken into account the expert and other evidence put before me relating to a private medical issue. I take into account the contents of and conclusions in the report you rely on from Peter Pratt a clinical psychologist. He is not a consultant psychiatrist but he is experienced. You have not provided medical evidence from a suitably qualified consultant psychiatrist that you have any diagnosed medical or psychiatric condition. Peter Pratt did not diagnose any psychiatric condition the symptoms of which would include any self harm risk. However he was of the view that you are at risk of self harm if you are imprisoned.

I accept that if imprisoned you will find it particularly difficult. You provided private information during mitigation which I found persuasive concerning the effects which prison will have on you which are above and beyond what many will suffer. You are concerned about arrangements. You asked for a further adjournment for more time for a full pre sentence report from the probation service.

However you have already been granted an adjournment of 8 weeks. Despite your assertion in July that your probation officer had been asked and offered to provide a report to the Court no such report has been provided. Instead two late emails were provided by a trainee probation officer which did not take your case forwards as you no doubt had hoped. For the reasons set out in the judgment given in the private hearing I refused the adjournment but heard your evidence on the private information. My judgment on the adjournment was provided ex-tempore.

I also note that Peter Pratt recorded that you told him:

“… that, despite this suspended sentence, he simply continued to engage in protest behaviour since he believed that the strict conditions of the suspended order was not to break an HS2 injunction, rather than not “to break the law”. He therefore felt empowered to trespass on land without an injunction.

Indeed, he added that he was actually in a tunnel on HS2 land on the day that his appeal came through.”

Also:

“Current Suspended Sentence

He then informed us that he was now already under a suspended sentence, ten weeks suspended for a year, handed down in July 2022. This, it appears, has a history in its own right in that his original “not guilty” plea was accepted by the City of London Magistrates Court. However, this matter was appealed, and it appears that the original Sentencing Court were told that they had “got the law wrong”, hence a further conviction.

He believes that he had to pay £200 costs, and was again required to engage in 15 hours of “rehabilitation”, which has not yet substantively started.”

I take into the Court of Appeal’s approach in a potentially relevant and analogous case: Regina v Catarina Illingworth [2017] EWCA Crim 2722.

Admission: I take into account that after your technical objection was dismissed you admitted all of your breaches of the Cotter Injunction. That admission was made as late in time as an admission can be made. You have gained some credit for it but less than you would have gained had you come clean at the first reasonable opportunity.

Despite knowing that the hearing was to determine whether breach was proven and to determine sanction if it was, you failed to prepare and bring to Court the evidence you asserted that you needed in mitigation. You asked for an adjournment. More costs were incurred as a result.

I have taken into account the Sentencing Guidelines.

I consider that your breaches were serious, the harm was moderate to high and your culpability was high. They take you well past the custody threshold. Your counsel accepted this in mitigation.

Fine: I consider that you should pay a fine of £3,000 as part of the sanction for your breaches.

Imprisonment: I consider that a fine would not be a sufficient punishment for your breaches nor would it send out the right message to others who use direct action to protest and seek to dig tunnels or for your repeatedly contemptuous behaviour against HS2 and the taxpayers and the Courts. A fine alone would not reflect the seriousness of your breaches.

I pass a sentence of imprisonment on you for a term of 332 days. I have calculated this by imposing 7 days for every day you spent under ground (46 x 7 = 332). I reduce that to 268 days (so by around 20%) as a result of all of the mitigation you have provided.

Suspension: I have considered suspending the term, but this is not your first contempt. You have not gained insight into the seriousness of breaching Court orders. You have not shown insightful remorse and your apology, such as it was, I found unconvincing. I consider that there is a very real risk to the HS2 project and the public purse, the emergency services and the administration of justice that you will continue breaching Court orders. I will not suspend your term of imprisonment. The dialogue between you and the Courts in relation to conscientious objection has been far too one sided for far too long.

You will be entitled to release after serving half the term. You have the right to appeal by notice filed and served 21 days from today.