Males J has dismissed a committal application raising novel issues concerning liability for civil contempt. In so doing, he ruled that defence of another can be a defence to committal proceedings. While clearly not a licence to disobey injunctions or breach undertakings, this decision indicates that a court hearing committal proceedings is not obliged to ignore (or simply treat as mitigation) facts that might otherwise sustain a defence of this nature.

Here, a city council (C) had obtained an injunction restraining certain defendants from preventing tree felling. Another defendant (B) undertook not to enter any safety zone erected around any tree within a designated area. B subsequently entered one such zone, but asserted that he did so lawfully, to defend a female protester he (mistakenly) believed was being forcibly removed by security staff.

While the nature of the prohibited act would often prevent the issue arising, Males J considered that there had to be circumstances in which defence of another could be a defence to an alleged contempt. He gave a hypothetical example of intervention to restrain the violent assault of a defenceless individual in the safety zone. It would not suffice to describe that as an “exceptional case”, or regard intervention as a point of mitigation. While the court needed to carefully examine defendants’ claims that intervention was necessary, the principles governing defence of another, including that the defendant’s actions be objectively reasonable, were well capable of identifying spurious claims.

The judge noted that the criminal standard of proof applied in committal proceedings. Although it was unnecessary to decide the point, he thought that the criminal burden of proof should apply to the defence of defence of another in a committal context (requiring the applicant to negative the defence). He further held that, in committal proceedings, the criminal test applied to the defence itself (so the defendant’s belief in the existence of circumstances rendering it necessary to take action needed only to be genuine). The law of contempt represented a vital public interest and C sought the injunction as a public authority. Accordingly, the committal application had an essentially public objective which was closer to the objective of criminal proceedings than that of civil proceedings. It would also be wrong to expose defendants to liability for imprisonment on the basis of an honest, but mistaken, belief.

Case: Sheffield City Council v Brooke [2018] EWHC 1540 (QB) (21 June 2018).

Credits to Practical Law dated 28th June 2018