HS2 protestor’s conviction proportionate with human rights, High Court rules

The Divisional Court said Elias Cuciurean, who had previously been acquitted of aggravated trespass after he dug a tunnel to protest against the construction of the High Speed 2 (HS2) rail project, should be convicted.

Giving the leading judgment, Lord Chief Justice Lord Burnett found conviction would be a proportionate interference with Cuciurean’s rights under articles 10 and 11 of the European Convention on Human Rights (ECHR), which govern an individual’s freedom of expression and freedom of assembly and association.

The Divisional Court’s decision contrasted with a June 2021 Supreme Court judgment in favour of Nora Ziegler and three others, which quashed their convictions for protesting at a London arms fair. The Supreme Court said the courts should consider whether the authorities’ interference with a protestor’s rights was proportionate.

However, litigation expert Steven Blane of Pinsent Masons said the Ziegler case had left open the question of the extent to which the proportionality assessment was required in dealing with offences other than blocking the public highway, which was considered by the Supreme Court in that case.

The Divisional Court said the Supreme Court had made its decision solely in the context of the ‘lawful excuse’ defence to offences under the Highways Act 1980. 

“Ziegler does not lay down a principle that for all offences arising from ‘non-violent’ protest, the prosecution must prove that a conviction would be proportionate to the defendant’s article 10 and 11 rights,” the Divisional Court judgment said.

The court also found that the Supreme Court had not set any benchmarks for proportionate conduct in highways cases. It gave six reasons why section 68 of the Criminal Justice and Public Order Act 1994 is not incompatible with article 10 or 11, including that the section has the legitimate aim of protecting property rights.

The court also dealt with the property owner’s rights under article 1 of the first protocol to the ECHR, and noted that the ECHR was concerned with the “fair balance of competing rights”.

“The rights enshrined in articles 10 and 11, long recognised by the Common Law, protect the expression of opinions, the right to persuade and protest and to convey strongly held views. They do not sanction a right to use guerrilla tactics endlessly to delay and increase the cost of an infrastructure project which has been subjected to the most detailed public scrutiny, including in Parliament,” the court said.

Blane said the judgment would be reassuring to property owners who had been concerned the police might be less likely to intervene in a protest if they perceived the need to undertake an assessment of the protester’s ECHR rights.

“With protest activity ongoing in a number of locations just now, the judgment in this case and the earlier Ziegler decision have brought into focus tensions that can exist between persons exercising their right to protest and the need for the public to go about their daily lives and carry out their business,” Blane said.

“The decision of the Divisional Court should provide much needed clarity on the extent to which court have to assess the proportionality of the offences of which protesters are accused. It will be interesting to see how this is dealt with in the future. It is also worth noting that criminal proceedings are only part of the story. There are civil actions that disrupted businesses may choose to call on the future as an alternative to police action,” Blane said.