What does DPP v Cuciurean mean for protestors?

In the judgment of DPP v Cuciurean [2022] EWHC 736 Admin, handed down on 30 March 2022, the High Court sought to limit to its own facts the judgment in DPP v Ziegler & ors [2021] UKSC 23. The judgment in Ziegler allowed people facing criminal protest charges to argue that the court should determine whether a criminal conviction would be a proportionate interference with their rights to freedom of expression (Article 10 of the European Convention on Human Rights (“ECHR”) ) and freedom of association (Article 11 ECHR). The court in Cuciurean found that such an exercise would only have to be conducted for offences, like obstructing a highway but not aggravated tresspass, where it is a defence to have a “lawful excuse”. It also suggested that Articles 10 and 11 may only be engaged where the action took place on public land.

The case rests substantially on consideration of Strasbourg caselaw which has – in the view of the authors – been misinterpreted by the High Court. This article will consider avenues to overturn or distinguish the judgment, which may be useful for defence practitioners and protestors facing criminal charges.

The facts

Elliot Cuciurean dug a tunnel at a site designated for the HS2 project before it was bought by HS2. He then occupied it for over two weeks and slept in it for two nights before leaving voluntarily. It cost HS2 around £195,000 to safely remove Elliot Cuciurean and another two protestors, and works were delayed until he left. He was charged with aggravated trespass and tried in the Magistrates’ Court. The District Judge undertook a proportionality assessment of the kind required by Ziegler, considering whether conviction was a proportionate interference with Mr Cuciurean’s Article 10 and 11 rights. She acquitted Mr Cuciurean on that basis. The prosecution appealed by way of case stated (appealing specific legal questions from the trial) to the High Court.

The judgment

The three headline points from the judgment in Cuciurean are:

• Statutory offences (i.e. offences created by Acts of Parliament) are to be considered compatible with ECHR rights unless the court is persuaded otherwise (¶70); an analysis of whether a conviction for the offence is proportionate with ECHR rights, as in Ziegler, is therefore only necessary for offences which already have a “lawful excuse” defence available;
• Even if the court had made a proportionality assessment, by weighing up the proportionality of a criminal conviction against Mr Cuciurean’s Article 10 and 11 rights, as HS2 is a public project which has been authorised by Parliament, Mr Cuciurean’s actions caused significant cost and delay, it would have been a proportionate interference with Articles 10 and 11 to convict him of the criminal offence with which he was charged – aggravated trespass contrary to s.68 of the Criminal Justice and Public Order Act 1994.
• Concerningly, the High Court (while not making a decision about it) stated that in their view is arguable that Articles 10 and 11 ECHR are not engaged where a protest takes place on private land or publicly owned land to which there is no right of access (¶¶ 45 & 50).

(1) Lawful excuse – limiting Ziegler?

The judgment relies on the cases of Bauer v DPP (Liberty Intervening) [2013] 1 WLR 3617 and James v DPP [2016] 1 WLR 2118, both pre-Ziegler judgments from the Divisional Court, to limit the proportionality exercise required by Ziegler to offences where it is a defence to have a lawful excuse, as was the offence under examination in Ziegler. The reason for this is that it is to be assumed that, for offences where there is no defence of lawful excuse, “proof of the ingredients of the offence without more renders a conviction proportionate to any interference with articles 10 and 11” [¶ 61].

Leaving aside the obvious issue that Ziegler is a Supreme Court judgment post-dating each of those judgments (with Supreme Court judgments taking precedent over the judgments of lower courts), the court has failed to consider important Strasbourg caselaw on the matter.

In Perinçek, v Switzerland [GC], no. 27510/08, ECHR 2015, Doğu Perinçek, of the Turkish Workers’ Party had made statements at public events denying the Armenian Genocide. The Switzerland-Armenia Association brought a complaint against him and he was found guilty of violating Article 261 of the Criminal Code – a law against racial or religious discrimination and genocide denial. Mr Perinçek was ordered to pay 3000 Swiss francs or serve 30 days imprisonment, and also to pay 1000 Swiss francs to the Swizerland-Armenia Association.

Mr Perinçek filed an application to the European Court of Human Rights on the basis that the Swiss courts had wrongfully breached his right to freedom of expression.

This point is made in the case of Perinçek v Switzerland [emphasis added]:

272. In two recent cases under Article 10 of the Convention, the Court upheld the proportionality of interferences which consisted in regulatory schemes limiting the technical means through which freedom of expression may be exercised in the public sphere…By contrast, the form of interference in issue in this case – a criminal conviction that could even result in a term of imprisonment – was much more serious in terms of its consequences for the applicant, and calls for stricter scrutiny.

Unlike the offence of Aggravated Trespass, contrary to s.68 of the Criminal Justice and Public Order Act 1994, which was made law prior to the writing into law of European Convention Rights with the Human Rights Act 1998, the Swiss law against genocide denial had been introduced.

In particular, in Perinçek v Switzerland at § 275, the ECtHR held that

“an interference with the right to freedom of expression that takes the form of a criminal conviction inevitably requires detailed judicial assessment of the specific conduct sought to be punished. In this type of case, it is normally not sufficient that the interference was imposed because its subject matter fell within a particular category or was caught by a legal rule formulated in general terms; what is rather required is that it was necessary in the specific circumstances.”

(2) The proportionality exercise itself

Despite finding that Articles 10 and 11 may not have been engaged, and that a proportionality exercise was not necessary when convicting an individual of aggravated trespass, the Court nevertheless took 1 side of A4 to find that a conviction would have been a proportionate interference with Articles 10 and 11.

The bulk of that reasoning related to the fact that HS2 is a public project approved by parliament. Space was also given over to reasoning that it was “immaterial” that the costs were miniscule when compared to the total costs of the project, because “that argument could be repeatedly endlessly along the route of a major project such as this.” To this it must be answered: of course it could. And at some point the damage would no longer be proportionate. But until that point, it would.

(3) Should proportionality be considered? The distinction between public and private land

At ¶ 41 of the judgment, Appleby and Others v the United Kingdom, no. 44306/98, § 47, ECHR 2003-VI is quoted at length to the effect that Articles 10 and 11 do not create any “automatic rights of entry to private property”; although where any bar on access “has the effect of preventing any effective exercise of freedom of expression” there may be a positive obligation on the State to regulate rights of access to protect Articles 10 and 11.

From this, the conclusion is drawn that there is, in general, no right to freedom of expression and association on private land [¶ 45].

Appleby concerned environmental activists leafletting in a shopping mall. The shopping mall was private land, dominating the town centre, and the owners of the shopping mall refused to allow them to demonstrate in the mall or to distribute leaflets. However, contrary to the interpretation of the High Court in Cuciurean, Appleby is a case concerning whether it was lawful for demonstrators to be denied access to a shopping mall, not whether it was lawful for them to face criminal convictions. The reasoning in Appleby contains a proportionality assessment: there is no automatic right of entry, but rather, where a bar on access to the property has effect of preventing any freedom of expression, it would not be a proportionate interference with Articles 10 and 11. Appleby is not concerned with criminal conviction. A criminal conviction may not be proportionate where denial of right of access would. There are remedies for the owner of the land being trespassed on through civil law (i.e. trespass rather than aggravated trespass), without protestors facing criminal convictions.

The judgment in Appleby prevents Article 10 being used to create positive rights, i.e. ‘as a sword’, creating an automatic right of entry to private property. That much is clear. But it does not prevent Article 10 being used in a defensive manner, i.e. ‘as a shield’, where a criminal conviction would not be proportionate.

Conclusion

We hope this article can provide some assistance to protesters facing criminal charges and those representing them. The judgment in Cuciurean – in particular the use it has made of Bauer and Ziegler – is evidence of the fact that “good” judgments should be treated with care. It is hoped that, when Cuciurean is considered in the Attorney General’s Reference for the Colston Statue case, the court rejects the framing of the questions by the Attorney General, and finds that an assessment of proportionality (as per Ziegler) can and should be considered wherever relevant for all types of offences where Articles 10 and 11 are engaged.

Margo and Hannah are grateful to Blinne Ní Ghrálaigh of Matrix Chambers and counsel in Ziegler and Cuciurean for her assistance when writing this article.

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