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HS2 protester given suspended sentence for contempt of court

A protester against the High Speed 2 (HS2) rail project has been handed a suspended prison sentence for contempt of court after breaching an earlier order in the first such case concerning HS2.

Solicitors for protester Elliott Cuciurean said they intended to appeal as the case raised important questions about whether someone could be in breach of an order against ‘persons unknown’ with which they had not personally been served and had arguably reversed the burden of proof.

In The Secretary of State for Transport (HS2) v Cuciurean [2020] EWHC 2614 the Honourable Mr Justice Marcus Smith found in a case brought by the Secretary of State for Transport and HS2 Ltd that Mr Cuciurean had entered an area called Crackley Land from which ‘persons unknown’ were barred by the earlier order.

He sentenced Mr Cuciurean to six months in prison, suspended for a year.

HS2 told the court that Mr Cuciurean had on at least 17 occasions acted in contempt of the order, which the company said resulted in substantial costs with those of the the High Court Enforcement Group company alone reaching “the hundreds of thousands of pounds”.

These breaches had also delayed the project and posed serious risks to the health and safety of staff and contractors, members of the public and the protestors themselves, HS2 said.

Its affidavit said: “There is a real risk that if [Mr Cuciurean] is not sanctioned for the breach of the order that he (and other protestors) will continue to act in contempt of the authority of the court and continue to breach the order.

“In the event of continuing delays to works at the Crackley Land the HS2 scheme will not be prevented, however, the necessary costs to the taxpayer will be substantial and is estimated to be in the hundreds of millions of pounds.”

The judge found the incidents did take place, with the exception of one in which Mr Cuciurean was accused of pulling down a fence panel and four where the judge could not be certain they occurred on land covered by the order.

Marcus Smith J was strongly critical of one of HS2’s witnesses, project engineer William Sah, who gave evidence on the land’s boundaries.

The judge said: “It appeared to me that Mr Sah simply did not recognise the affidavit he had sworn, and parts of it appeared to have been written for him.

“Thus, Mr Sah did not recognise - and certainly was unable to give evidence in relation to a plan exhibited to his statement and a video similarly exhibited. I do not propose to speculate on why Mr Sah was adduced as a witness, but clearly I can place no weight on his evidence.”

Mr Cuciurean had “obviously entered the Crackley Land wilfully, intending to enter upon land where he knew he should not be”, the judge concluded.

His conduct during the incidents demonstrated “a subjective understanding that he was trespassing on another’s land, and that he was doing so…with the subjective intention to further the HS2 protest, and to inhibit or thwart the HS2 scheme to the best of his ability,” Marcus Smith J said, concluding that Mr Cuciurean “fully understood the terms of the order, namely that he was not to enter upon the Crackley Land”. 

A statement from Robert Lizar Solicitors, which acted for Mr Cuciurean, said he had engaged in “peaceful protests against the destruction of ancient woodland and wildlife as a consequence of the HS2 development”.

The firm said the case was important as it concerned “the risks to protestors and local people where large corporations and public authorities take out injunctions against 'persons unknown’ to prevent protest.

“The case marks the first time that HS2 have applied for a peaceful protester to be committed to prison for contempt of court and is seen to be a test case which could lead to a number of further similar applications by HS2.”

Mr Cuciurean now faced imprisonment for breach of a court order “he did not know about and could not have understood the full implications of”, Lizar said.

“It is a Kafkaesque scenario and one that should concern all who wish to protect the right to oppose the destruction of the environment by large companies or government funded corporations .

“We intend to lodge an appeal with the Court of Appeal and will make these arguments there.”

Lizar said the judgment meant the burden of proving that there was no contempt of court has passed to the person accused of contempt, which reverses the usual and long established burden of proof in such cases.

Mark Smulian

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