National Farmers' Union & Ors v Tiernan & Ors

The Claimants seek to have the First Defendant, Mr Jay Tiernan, committed for contempt of court and they rely upon nine alleged breaches of an interim injunction, which was originally granted by Turner J on 22 August 2013, and then continued by Popplewell J in the same terms on 5 September 2013 until trial or further order. The purpose was to seek to prevent interference with a badger cull due to take place in the autumn of 2013 by way of a pilot scheme in West Gloucestershire and West Somerset. It was hoped that it might be possible thereby to reduce the incidence of bovine tuberculosis. The proposal was undoubtedly controversial, but it has been established that it was in accordance with law.

Mr Tiernan is and was at the material times a spokesman for the unincorporated association known as The Coalition of Badger Action Groups (“CBAG”), which forms a part of the movement to stop the culling.

The Protection of Badgers Act 1992 enables the Secretary of State to grant licences authorising the killing of badgers for the purpose of preventing the spread of disease: see s.10(2)(a). Licences had been granted in 2012 and it was in accordance with these that the pilot cull was to take place. There had been a challenge to the legality of the cull before the courts, but this had been rejected both at first instance and on appeal.

Each allegation has to be proved to the criminal standard and, for this purpose, Ms Michalos called each of the deponents relied upon and tendered them for cross-examination. Mr Tiernan adduced no evidence himself, although he had earlier put in an unsworn and unsigned document, described as an “affidavit”, but which did not even contain a statement of truth. He had been given a number of opportunities in correspondence to seek legal advice, and was informed of the possibility of public funding for that purpose, but he chose to represent himself and took the opportunity to cross-examine some of the witnesses and to make submissions.

The order continued by Popplewell J contained the following provisions at paragraph 3, namely that:

“… the Defendants must not (whether by themselves, their agents or any person acting on their behalf) and must not procure, incite, aid, abet or encourage any other person to do any of the following inter alia:

Enter on to any privately owned land within the Cull Zone (as defined in that order [i.e. that of Turner J]) without the express or implied consent of the owner or lawful occupier of that land excluding any public rights of way.

Harass or intimidate any Protected Person (as defined in that order [i.e. that of Turner J]) by photographing or filming any such Protected Person, any vehicle used or owned by a Protected Person and/or any land, premises or house belonging to or occupied by any Protected Person.

Use, publish, communicate or disclose (whether on the internet or howsoever) any still or moving images from which any Protected Person, their vehicle, home, farm or premises can be identified whether from the image alone or in conjunction with other information.

Use, publish, communicate or disclose (whether on the internet or howsoever) to any other person (other than by way of disclosure to legal advisers instructed in relation to these proceedings for the purpose of obtaining legal advice in relation to these proceedings, or for the purpose of carrying this order into effect)

a.

The residential address of any Protected Person or any images that would allow such address to be identified;

b.

The telephone or fax number or numbers (including mobile telephone numbers) of any Protected Person;

c.

The email address of any Protected Person;

d.

The vehicle registration number or numbers of any vehicles owned or used by any Protected Person or any images that would allow such vehicles to be identified; and

e.

Any information that would cause or allow any Protected Person to be identified as associated with or participating in the Cull whether alone or in combination with other information

Without the express written consent of the respective Protected Person, save that nothing in the order prohibits identification of the Individual Claimants by name alone (and occupation and representative capacity in this action) for purposes of a fair and accurate report of these proceedings

Cause, encourage or procure publication or communication of any Personal Information aforesaid of any Protected Person whether directly or indirectly by any means whatsoever including but not limited to publishing or communicating hyperlinks to websites where any such Personal information may be available or by a third party publisher.

Any acts which amount to harassment of any Protected Person.”

It was further ordered that: “The Defendants are required to notify their members of the fact that the Order has been made by posting on any websites identified in this paragraph and on any other website they publish or may in future publish: (a) that a Court Order has been made prohibiting activity in the Cull Zone and (b) post a copy of the Order on the following websites (save in the case of twitter.com by posting a link to a copy of the Order) and to maintain a copy of this Order on such websites until the conclusion of trial or further order of the Court as follows:

The First Defendant was in court on 22 August 2013 when Turner J made the original interim order and was aware of its terms. Provision was also made in the order for the Claimants to have permission to serve the order, claim form and other documents by any of the alternative methods on the First Defendant, either by email transmission to stopthebadgercull@gmail.com or by first class post to CBAG, c/o Kebele, 14 Robertson road, Easton, Bristol BS5 6JY. Service of the 22 August order was effected on the First Defendant by an email at 13.15 the following day and by first class post to the permitted addresses. There was a response from the First Defendant by email at 14.29 on 23 August, showing that he had in fact received the email notification.

It is now alleged by the Claimants in the Amended Particulars of Application for Committal dated 17 October 2014 that Mr Tiernan has been in breach of the order in a number of respects. I shall consider these individually, using the numbering in the schedule prepared by Ms Michalos and attached to her skeleton argument.

Failing to notify members of CBAG by way of the listed websites

It was provided in both the first interim injunction (at paragraph 13) and the later continuation order (at paragraph 10) that each Defendant was to notify members of the fact that the order had been made via specified websites and social media sites. This was for the obvious reason that it can be very difficult in such circumstances for a claimant, if it becomes appropriate to commence proceedings for contempt, to establish that the relevant respondent had the necessary knowledge. It is alleged that this Defendant failed to take any steps to comply with this mandatory order so far as members of CBAG were concerned. Mr Peter Singfield, the Claimants’ solicitor, confirmed that the order was never posted in accordance with that requirement. Indeed, he has pointed out that some person or persons, on the contrary, had posted comments on the Stop the Cull Facebook page on 19 August 2013 to the effect that no one should talk about any court order in case they were thereby, not only revealing their own awareness, but effectively fixing the recipients of that information with knowledge of the order:

“[T]here is one simple rule about injunctions, you don’t talk about them.

If you do, then you serve them on everyone else reading the post. Don’t ask questions about injunctions, if you hear about an injunction DO NOT COMMENT ABOUT IT ON FACEBOOK OR TWITTER”

This occurred between the service of the application for an injunction (16 August) and the hearing before Turner J (22 August).

The significance of this tactic, obviously, was to warn people involved in the anti-cull activities that they might be liable for criminal contempt if they were to act inconsistently with the order even if they were not parties to the litigation and/or had not been formally served. This is known as the Spycatcher principle: see e.g. Att.-Gen. v Newspaper Publishing Plc [1988] Ch 333and Att.-Gen. v Times Newspapers Ltd [1992] 1 AC 193. It is suggested that this evidence demonstrates not merely non-compliance but positive defiance of the court and a determination to frustrate its purpose. It is consistent also with other evidence from Mr Singfield to the effect that, immediately after the injunction was granted by Turner J, Mr Tiernan was reported by the BBC as saying to journalists that it would “make absolutely no difference whatsoever”. That is a challenge, of course, to the rule of law in a democratic society.

Mr Tiernan does not see it like that, and he made the point that he does not have a “disrespect for the law” – only for badger culls and also, incidentally, for the NFU. That is muddled reasoning, because the law is reflected inter alia in the 1992 statute and also in the various decisions of the court which have, after due process, both upheld the legality of the culls and taken steps to protect the Claimants’ rights and interests.

Mr Tiernan did not give evidence, as I have said, but he did make submissions in this context to the effect that the Claimants had not proved their case. There is no evidence, he claims, that the terms of the order have not been publicised. While he is certainly entitled to have the case against him proved to the required standard, that burden has been discharged in this particular instance by the evidence of Mr Singfield, to which I have already referred. There is nothing to put in the scales on the other side, for example to the effect that Mr Tiernan had tried to publicise the order through the means specified but, for one reason or another, had failed despite his “best endeavours” (to which the order makes express reference in the context of www.badger-killers.com).

I am therefore satisfied in relation to the first of the allegations of contempt that the case has been proved beyond reasonable doubt.

Harassing a Protected Person (Vivian Sellick) on 30 October 2013

The next four allegations of breach relate to Mr Vivian Sellick, who gave evidence before me and was cross-examined by Mr Tiernan. The incident mainly concerns what took place on 30 October 2013 at his farm in Somerset, where he has lived for the past 58 years. His land forms part of the Cull Zone and has been subject to restrictions for much of the last ten years following incidents of bovine TB. He has lost some 200 cattle over that period because of the government’s policy of slaughtering those infected.

He gave evidence in particular about the events of 30 October 2013, but I was assisted also by viewing a video recording made that morning, which had been posted on the internet and was also shown in the course of the hearing.

In the course of cross-examination, Mr Tiernan asked Mr Sellick whether he had felt intimidated or alarmed by his presence on that occasion, to which he replied that he had. There is no need to go into the detail of what happened that morning. He had been called out by his contractor, who was authorised to cage, trap and despatch badgers, between 7.00 and 7.30. He asked for his assistance because he had spotted activists nearby and needed to despatch a badger which had been trapped overnight. There was also a police officer present. The police officer told him that an activist had been present, but he had now apparently left the scene. Thus reassured, Mr Sellick thought it safe to take his firearm out of the vehicle, which he did and went to despatch the badger in the cage trap. He then made the firearm safe and took the body out of the trap. He needed to take a DNA sample by taking a clipping from the ear and then to place the badger in a clear bag followed by an opaque bag. He then realised that an activist was again on the scene. He was concerned that he was still carrying his firearm and sought to expedite matters by placing the body directly into the opaque bag, to save time, so that he could leave the location as quickly as possible and not become involved with the activist. At this point a man in camouflage, later confirmed as Mr Tiernan, was filming what took place.

Later that day, the video which Mr Tiernan had made was uploaded and published on YouTube via a user called “freeda brocks”. Mr Tiernan argues that the restrictions imposed by the injunction apply only to the process of culling so long as it is lawfully conducted and, in effect, that he is entitled to police the culling process to see whether it is indeed being carried out lawfully. On this occasion, Mr Sellick had breached the rules by placing the carcase into an opaque bag directly without putting it into clear bag first. This only happened, according to Mr Sellick, because an activist was present (Mr Tiernan) and he was anxious to avoid contact. This was later accepted by the relevant authorities as mitigation for the breach, which otherwise would not have happened.

In any event, none of this is relevant to the allegations of breach of a Court Order. It provides no defence to Mr Tiernan. I am satisfied that he did harass and intimidate a Protected Person by filming him and his vehicle in breach of paragraphs 3(9) and (13) of the order.

Publication of a film from which Vivian Sellick and his vehicle could be identified

Since Mr Tiernan had taken the film earlier that day himself, he is clearly responsible also for the fact that it found its way, directly or indirectly, on to the internet. That was in breach of paragraphs 3(10) and 3(11)(e) of the order.

Posting a film from which the registration number of Vivian Sellick’s vehicle was identifiable

The number of Mr Sellick’s vehicle was plainly identifiable from the film and that was a breach of paragraph 3(11)(d). I do not accept the argument that one could only identify the vehicle if one had access to the confidential records of vehicle licence numbers. That was plainly not what the Judges had in mind when making the relevant orders. No doubt local people would be able to recognise the vehicle and any activist who wished to do so could take the number down from the film for future reference.

Harassing Vivian Sellick by posting the film

Again, the posting of the film would in itself clearly harass Mr Sellick in the fraught circumstances in which he found himself at that time. There was considerable anxiety among all those involved in the cull as to what reprisals or intimidation might take place if they were identified to activists. Additionally, therefore, there was a breach of paragraph 3(13) of the order. (I am conscious, of course, that there is considerable overlap between these various breaches and that will need to be borne in mind as and when it comes to considering the imposition of separate penalties.)

Entering on land owned by Rupert Dod within the Cull Zone on 17 September 2014

This allegation relates to events, almost a year later, on 17 September 2014. Mr Dod gave evidence and was briefly cross-examined. He told me that he had been able to recognise his farm when shown a clip from a BBC Points West. He was shown it on 18 September 2014, the day after it had been broadcast. That demonstrated quite clearly that Mr Tiernan (whom he recognised) had entered on to his land without permission in breach of paragraph 3(1) of the order.

Harassing a Protected Person (Rupert Dod) by trespassing and filming

Mr Tiernan asked Mr Dod what was the evidence of harassment, to which he replied, according to my note, “You were on my property. I am a target of activists”. I can quite understand that answer. He knew that Mr Tiernan was an activist and that he had been made the subject of an injunction. It is only natural that he should feel harassed and intimidated if he should thereafter find Mr Tiernan on his land and making a filmed record. This was a breach both of paragraph 3(9) and paragraph 3(13).

Making excessive noise within 25m of Rupert Dod’s land within the Cull Zone

Mr Dod also gave evidence about the use of a whistle in the vicinity of his land (within 25m). This was for the purpose of disturbing badgers and/or obstructing Protected Persons and thus in breach of paragraph 3(7)(iii) of the order. He had seen this taking place at 1 min 29 seconds into the BBC film. Even if Mr Tiernan did not know exactly where the boundary of the land was at the time, he was in fact according to the evidence of Mr Dod within the prohibited area. That is what matters. It would be his responsibility to ensure that he was not within a relevant area.

Demonstrating within 25m of the business premises occupied by the NFU on 17 September 2014

This allegation relates also to events in September 2014, but which took place outside the NFU premises at New Agriculture House, Blackbrook Park Avenue, Taunton TA1 2FU. The evidence is that of Ms Nina Winter, who is the Chief Legal Adviser at the NFU. She sets out her knowledge of “an incident or incidents which occurred between 4 September 2014 and 18 September 2014, in which the First Defendant appeared at an NFU Office near Taunton”. She refers to accounts given by fellow employees of the NFU, who did not give evidence themselves as to what they had seen, relating specifically to the evening of 4 September. I was told that there had been difficulties in obtaining evidence from some potential witnesses who were afraid to be identified. I must always remember, however, that it is for these Claimants to prove their case to the criminal standard once they have decided to apply to the court for committal. In that context, hearsay from anonymous individuals must, at the very least, be approached with caution.

Furthermore, it is necessary to be absolutely clear and unequivocal as to what specific conduct is being relied upon as a breach or breaches of the relevant court order (in this instance in the form of a prohibition). The phrase “incident or incidents” is not, therefore, helpful in this context, especially when accompanied by the vagueness as to dates. The critical document (analogous to an indictment) is the application notice. Here, what matters is the most recent document, headed “Amended Particulars of Application for Committal”, and dated 17 October 2014. The paragraph which corresponds to the ninth allegation of contempt is numbered 20 and refers to an alleged breach “on or about 17^th September 2014”. It plainly does not, therefore, relate to anything that happened on 4 September. I believe that I must, therefore, put that evidence to one side.

That is not the end of the matter, however, as there is other evidence relating to New Agriculture House – again from Ms Winter. She exhibits a photograph of Mr Tiernan standing outside the building and wearing a tee shirt which bears the defiant motif “FCK NFU”. She says that this was posted on 18 September on the Facebook Stop the Cull web page. It was accompanied by the words, “Jay Tiernan pops round to the Taunton office (cull HQ) But no one comes out to say hello”. In response to the posting, comments appeared from supporters or activists which, Ms Winter suggests, demonstrate that they at least thought that his purpose must have been to frighten the NFU and its employees based at that office. They included such observations as “I think they got the message though”; “Cowards”; “Good on you, Jay. Put the shits up the cowardly tossers”; and “They’ll be hiding behind the sofa – Nice one, Jay”.

Later, Ms Winter attended at the premises with a tape measure, on 29 September, and confirmed that Mr Tiernan was standing approximately 9m from the premises at the time the photograph was taken. His demonstration was, therefore, in breach of the order. As I understood Mr Tiernan’s argument in relation to this incident, it was to the effect that there was no reason for him to suppose that the building was “occupied” when he attended. The use of that term in the order was purely descriptive as to the nature of the premises sought to be protected. It plainly cannot have meant that demonstrations were to be permitted within 25m at any time once the last person had left the premises. How could one possibly know for certain? Also, it was put to Ms Winter that, for all she knew, the photograph could have been taken more than a year earlier and before the injunction was first granted. She accepted that she could not say. On the other hand, I have to be realistic about this. It is entirely reasonable to infer from its posting that it was supposed to be of topical relevance (i.e. on or about 17 September 2014), rather than “for old time’s sake” as being as being only by way of reminiscence. Unless there is evidence produced to the contrary, as there might have been, I believe the court is entitled to proceed on the basis of the natural inference, even in the context of the criminal standard. Juries do so every day in the Crown Court. Otherwise, I should be giving priority to what is merely theoretical possibility.

I can conclude in these circumstances that the Claimants have sufficiently proved their case by reference to the photograph and Ms Winter’s evidence as to the measurements. There was thus a breach of paragraph 3(4) of the order.

Having found the breaches proved to the required standard, I must now hear submissions and consider any evidence the parties wish to place before the court on the issue of what penalty or penalties should be imposed. That hearing can take place either immediately, when this judgment is handed down, or at a later date if necessary. I will hear what the parties have to say about that once it has been handed down.