Full case report

National Farmers’ Union v Tiernan

Reference [2015] EWCA
Court Court of Appeal

Judge Patten, Fulford & Sharp LJJ

Date of Judgment 16 Jul 2015


Summary

Contempt of Court – Animal Rights Protesters – Anti-Harassment Injunction -Breach of Injunction – Committal Proceedings – Infringement of Article 6 (right to a fair trial) – availability of legal aid – privilege against self incrimination


Facts

National Farmers’ Union (“NFU”) obtained an injunction preventing harassment of farmers and others involved in the badger cull. The NFU brought contempt proceedings for breach of the injunction against the Appellant who was a spokesman for the unincorporated association known as The Coalition of Badger Action Groups (“CBAG”). CBAG is a protest group against the culling of badgers.  The first hearing of the committal proceedings was at the instigation of the NFU treated as a directions hearing specifically to allow the Appellant (who was acting in person) time to find legal representation, alert him to the possibility of legal aid and the seriousness of contempt proceedings. The matter was adjourned for 5 months but at the final hearing the Appellant was still in person. All breaches were found proved and he was committed to prison for a total period of six months suspended for two years. After the hearing, the Appellant obtained legal aid and legal representation and appealed on  the basis that his Article 6 right to a fair trial had been breached by the fact he had not had legal aid or representation; that he had not been warned against self incrimination; the proceedings were an abuse of process and in respect of various breaches they had not been proved to the criminal standard.


Issue

1. Whether the repeated warnings given to the Appellant by  both the Court and the NFU in respect of legal representation and the availability of legal aid were sufficient; and if not, whether any failings amounts to a breach of Article 6 so serious that the finding of contempt should be set aside;

2. Whether a defendant to a High Court committal application has an absolute statutory right to legal aid on the basis that there is no merits test and also no means test and if so, whether a failure by the Court and/or the claimant to communicate this to the defendant is a breach of Article 6;

3.Whether the Respondent was adequately informed of the privilege against self- incrimination and the right to remain silent;

4. Whether the proceedings were an abuse of  process and the order was too wide; and

5. Whether the breaches were adequately proved.


Held

Dismissing the appeal:

1. There was no breach of the Appellant’s Article 6 rights as he had been adequately informed of the availability of legal aid and the desirability of legal representation.  Further the issues were not complex or difficult such that the Appellant was unable to represent himself. Brown v Haringey [2015] EWCA Civ 483 was distinguished both on the facts and the fact there was no evidence the Appellant had applied for and been refused legal aid.  It was unnecessary to decide whether the statement in King’s Lynn & W. Norfolk Council v Bunning [2013] EWHC 3390 that there was no means test for High Court committal proceedings was correct (cf. Regulation 39 of Criminal Legal Aid (Financial Resources) Regulations 2013)

2. The Appellant had been referred to the right to remain silent twice in the NFU’s skeleton arguments.  He did not give evidence and exercised that right but the breaches were proved by direct evidence.  There was no basis to interfere with the finding below on the basis that he was not warned of the possibility of adverse inferences being drawn (applying Radford v Kent County Council 18.2.98 (162 JP 697). holding in a criminal prosecution, a failure to warn is of no consequence where no adverse inference is in fact drawn.). The Court noted that the CPR 81 PD and the warning required on committal applications made no reference to the right to silence and it would be better to reflect this.

3. There was nothing unlawful in the order either as to scope or terms. There was a difference between criminal prosecution and contempt proceedings (Re B(A Minor)(Contempt of Court) [1996] 1 WLR 627 followed) and there was no abuse of process.

4. The Judge was entitled to find all the breaches proved to the criminal standard on the evidence before him.


Comment

The decision demonstrates the efficacy of anti-harassment injunction for those facing harassment at the hands of animal rights protesters.  The Court of Appeal  quoted the trial Judge’s observation in judgment that the Appellant’s reported comment that an injunction “would make absolutely no difference whatsoever” was a challenge to the rule of law in a democratic society.

The Court considered it unnecessary to find whether or not a defendant to a High Court committal application has an absolute right to legal aid on the basis that there was neither a merits test nor a means test as stated in King’s Lynn & W. Norfolk Council v Bunning [2013] EWHC 3390. Although there is no merits test  (see Reg 21 Criminal Legal Aid (General) Regulations 2013 (SI 2013/9)),   Regulation 39 of   Criminal Legal Aid (Financial Resources) Regulations 2013 SI 2013/471 tends to suggest that there is a means test. This issue remains unresolved.


Instructing Solicitors

Foot Anstey LLP