Contempt of Court Finding

At the Court of Session today (3 July 2020) Lady Wolffe found Greenpeace Limited to be in breach of interdict and accordingly in contempt of court and fined the company £80,000. Lady Wolffe issued the following sentencing remarks.

[1]               In June 2019 Transocean Drilling UK Limited (“Transocean”) obtained an interdict (or injunction) against Greenpeace and persons unknown, prohibiting Greenpeace and their employees, volunteers or anyone acting on their behalf or under their instructions,   from boarding without permission or  occupying the mobile offshore drilling unit known as the Paul B.  Lloyd, Jr (the “Rig”).  The interdict, which I shall refer to as “the Order”, also prohibited them from approaching within 500 metres of the Rig or any vessel towing it.  The Order also extended to the persons who were on the Rig at the time but whose identities were not known.   

[2]               This matter called before me on Transocean’s Minute, contending that Greenpeace have breached the Order, and asking the Court to ordain them to appear.  Greenpeace did appear, and I heard a day’s submission on the minute and answers shortly before the lockdown.  The hearing at which the Court’s decision was to be delivered fell in the first week of the lockdown and therefore required to be postponed.  The Court acknowledges parties’ patience during that period.   

The alleged breaches of interdict

[3]               Transocean assert that, notwithstanding their knowledge of the Order, which was served on Greenpeace and on the persons on the Rig the day after it was granted, Greenpeace and others breached the Order on two occasions.  These were: 

1)      On 14 June 2019, when two new Greenpeace protestors boarded the Rig.  They occupied a location similar to that taken by the original protestors but on a different leg of the Rig.  The protestors unfurled a banner stating ‘Climate Emergency Greenpeace’.  To have obtained access to the Rig, the protestors each time must have approached it by boat.  During the evening of 14 June 2019, the two protestors who had boarded the Rig were arrested and removed by the Police.  One of the arrested protestors was a director of Greenpeace, Andrew McParland.  Mr McParland subsequently pled guilty to a breach of the peace that narrated unlawfully boarding the Rig, attaching himself to it with tethers, chains and padlocks, and placing himself and others in potential danger. 

2)      The second breach is said to have occurred 2 days later, on 16 June, by which point the Rig was under tow.  Early that morning, several fast response craft (or FRCs) were launched from the Arctic Sunrise, a vessel that Greenpeace International had provided for Greenpeace’s use for their action against the Rig.  The FRCs had been launched with a view to boarding the Rig.  Shortly after that two FRCs were spotted approaching the Rig with approximately five protestors in each FRC.  They encroached within the 500 metre exclusion zone, but were unable to put down any protestors on the Rig.  (While Transocean also alleged a similar breach a few days later, Greenpeace deny this and this part of the second allegation is not insisted in).

Greenpeace admit the breaches but not that these constituted contempt of court

[4]               Greenpeace admit the substance of these two allegations and that the Order was breached.  However, they do not admit that this constitutes a contempt of court, for which the “wilful disobedience” of the Court’s order must be demonstrated beyond reasonable doubt.  In other words, while admitting the infringing conduct, Greenpeace put in issue whether they had the requisite mental intent (or mens rea) to commit a contempt of court.  In adopting this position, Greenpeace drew a distinction between themselves and the acts of individuals (such as Andrew McParland), who, it is said, volunteer “on their own behalf “or who are “there only in a personal capacity, making [their] own choices about the matter”.

[5]               They also relied on Articles 10 (freedom of speech) and 11 (freedom of peaceful assembly) of the European Convention on Human Rights (“the Convention”)  as relevant to the Court’s consideration of  any sanction, if the conduct admitted or found to be in breach of the Court’s order constituted contempt of court.   

Hearing

[6]               At the hearing parties’ common position was that I could determine the question of contempt without hearing parole evidence, but should proceed on the basis of the affidavits, productions, bundles of case and parties’ oral and written submissions.  I have considered all of those materials, which are noted more fully in the Opinion that will be issued after this hearing. 

Conclusion whether Greenpeace are answerable for the conduct of the activists   

[7]               On the information placed before me regarding the planning, provisioning and execution of this action, I have no hesitation in concluding that on the particular facts of this case, Greenpeace are answerable in this Court for contempt of court arising from the breaches of the Order by the activists.

[8]               Greenpeace’s most senior personnel were involved at all stages, from planning and approval, through to the execution of the direct action to board the Rig (the first allegation) and otherwise to delay its progress (both allegations).  Without Greenpeace’s active support and resources none of those who boarded or approached the Rig would have been able to do so.  Furthermore, it is no answer, in this case, to seek to decouple the final act of the individual activists from the chain of events, entirely facilitated by Greenpeace, which brought those individual activists to the foot of the ladder of the Rig (the first allegation) or on board the FRCs that launched from the Arctic Sunrise on 16 June 2019 (the second allegation).  While the individual activists purport to take sole responsibility, I find that they acted with the full knowledge, consent and support of Greenpeace, and in furtherance of Greenpeace’s objectives.  In my view, Greenpeace’s knowledge and their active and essential support preclude their argument that the final decision of the individual activist breaks the chain of events Greenpeace set in train or relieves them of ultimate responsibility. 

[9]               With a view to deflecting liability from themselves, Greenpeace, and their executive director, John Sauven, sought to draw a distinction between executive oversight and operational control; to suggest, in effect, that liability rested with the individual activists.  I do not accept that distinction made any difference.  There is no doubt that John Sauven was acting in his capacity as an executive director of Greenpeace.  He retained overall control and could have ended the action at any point; most critically, he could have ended the action at the point where its continuation might breach the Order.  He did not call off the action until 20 June 2019, and then for his own purposes.  It is notable that ensuring compliance with the Court order was not one of the reasons he offered for calling a halt to the action on that date. 

[10]           Having regard to the whole circumstances, I find that the conduct of the volunteers and Greenpeace members whose actions were essentially facilitated by Greenpeace, are to be treated as acts for which Greenpeace are responsible.  I find it established beyond reasonable doubt that through that conduct Greenpeace have exhibited wilful defiance of the Order.  They are guilty of contempt of court.

Mitigation

[11]           A significant volume of the materials provided to me addressed the many factors going to mitigation which Greenpeace wished the Court to consider.  I do not record or consider these matters in any detail here.  Foremost among the factors going to mitigation was Greenpeace’s ethos of peaceful protest in support of the environment, conducted in good faith and in the tradition of civil disobedience.  It is in the nature of civil disobedience to engage in a conscientious act, contrary to law, done with the aim of bringing about a change in the law or policies of governments.  However, as the established jurisprudence of the English and Strasbourg courts demonstrates, a distinction is drawn between conduct which causes disruption as an inevitable side‑effect and conduct which is deliberately intended to cause disruption, eg by impeding the activities of which those engaged in civil disobedience disapprove.  The Convention Rights of freedom of speech and freedom of assembly do not protect conduct which becomes coercive, or which hinders others in the conduct of lawful activities.  Nor do those rights excuse such conduct where, as here, it is a contempt of court.  As it was put recently by the Court of Appeal in England:

“There is no principle which justifies treating the conscientious motives of a protestor as a licence to flout court orders with impunity from imprisonment, whatever the nature of the harm intended or caused provided only that no violence is used.  Court orders would become toothless if such an approach were adopted…” (Emphasis added.)

[12]           In this case, I have found that Greenpeace orchestrated the action which gives rise to the first allegation and they took no steps to avert the breach of the Order, however briefly, which form the subject matter of the second allegation.  Their conduct in respect of the first allegation, in particular, involved a form of compulsion or coercion to hinder or stop the lawful activities of Transocean and, indirectly, of BP for the period the Rig was re-occupied on 14 June 2019.  In light of the relevant jurisprudence, discussed in the Court’s Opinion, and taking into account the whole circumstances (including the mitigating and aggravating factors and the important factor that the action was one of civil disobedience), I find that the imposition of a sanction in respect of Greenpeace’s contempt of court is necessary in a democratic society in pursuit, first and foremost, of the aim of maintaining the Court’s authority (Article 10.2).  It is fundamental to the rule of law that court orders are obeyed.  Greenpeace’s admitted conduct was in wilful disobedience of the Order.  I have also found the imposition of a sanction necessary for the protection of the rights and freedom of others (Article 11.2).  The imposition of a sanction is therefore proportionate in a Convention-relevant sense. 

Disposal

[13]           The Court has a wide discretion available to it when determining any penalty for a contempt of court including the whole range of penalties from admonishment, at one end of the spectrum, to a fine or even a term of imprisonment of up to two years, at the other end.  It is not unknown for these courts to sentence those found guilty of contempt of court following breach of an interdict to a term of imprisonment. 

[14]           I have considered very carefully whether I should impose a custodial sentence (to be suspended) (as was done in one of the recent English case).  That sentence could obviously not be served by Greenpeace, but by an individual within Greenpeace of sufficient seniority and position (amounting in effect to Greenpeace’s controlling mind and will) and whose conduct rendered him responsible for their breaches of the Order.  In this case, that would be John Sauven.  He was the Executive Director of Greenpeace; he authorised the action from the start and was in every sense the controlling mind and will of Greenpeace in their support of the action.  He could have brought it to an end at any time.  Notwithstanding his knowledge of the Order, he did not call off the action after the Order was made.  A sentence to a term of imprisonment as sanction for Greenpeace’s contempt of court would, in my view, be within the range of proportionate sanctions.   However, in exercise of my discretion, and having regard to the whole circumstances, I intend to exercise leniency and confine this Court’s sanction to a fine of Greenpeace. 

[15]           For the purpose of considering what level of fine is appropriate in all of the circumstances, it is relevant to have regard to Greenpeace’s financial resources.  I have had the benefit of an affidavit from Greenpeace’s Head of Finance, Andrew Coates.  He spoke to Greenpeace’s financial means under reference to their accounts for the year ended 31 December 2018 (“the 2018 Accounts”).  Shortly before the final hearing in this matter, Greenpeace’s accounts for the year to 31 December 2019 (“the 2019 Accounts”) were provided.  The relevant figures are set out in the Opinion.  For present purposes it suffices to note that Greenpeace had income totalling over £18 million in 2018 and income of over £22 million in 2019.  While they also had significant expenditure, the vast bulk of that expenditure (totalling £10.5 million in 2018 and £14.8 million in 2019), was spent on campaigning and other activities (per the Notes to the accounts, “in pursuit of Greenpeace’s objectives”).  The costs of their actions in respect of the Rig amounted to about £67,000; a figure which does not include the legal fees Greenpeace have expended in respect of these proceedings.  The 2019 Accounts also disclose that Greenpeace have net assets of some £4.6 million, and a figure for cash at bank and in hand of £4.2 million.  While those figures are likely to have changed since those accounts were prepared, they indicate the magnitude of the sums Greenpeace are able to marshal and to expend in pursuit of their objectives.  A serious breach of contempt merits a substantial fine.  Having regard to the whole circumstances and in the exercise of my discretion, the cumulo fine I impose for both breaches will be a fine of £80,000. 

[16]           I shall reserve all question of expenses meantime.