England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London WC2A 2LL
		21st October 2019

 


MR JUSTICE MURRAY:

1. This is an application by the applicants, Teighmore Limited and LBQ Fielden Limited, seeking the committal of the respondent, Mr George King-Thompson, for breaching an order made on 8 February 2018 by Ms. Leigh-Ann Mulcahy QC, sitting as a judge of the High Court ("the Injunction"). The applicants seek an order against Mr King-Thompson under CPR r.81.4(1)(b) for his committal on the grounds that he knowingly and/or deliberately acted in breach of the Injunction.

The parties

2. The first applicant owns a leasehold interest in the development known as "The Shard", which is situated on land registered at the Land Registry with title number TGL386845. It is in possession of all the common parts of The Shard (including all of the stairwells and elevators).
3. The second applicant owns a leasehold interest in the site previously known as Fielden House. That building has now been demolished and the land is a site on which The Shard apartments are being (or have been) built, the land being registered at the Land Registry with title number TGL144345.
4. Mr King-Thompson is a 20-year-old man, who is a member of the urban exploring community. On Monday 8 July 2019, when he was 19 years old, he climbed the exterior of The Shard from ground level to near the top in breach of the Injunction, which restrained persons unknown from entering or remaining upon any part of The Shard without the licence or consent of the first applicant. Mr King-Thompson, of course, did not have such licence or consent.

Background

5. Urban exploring is an activity which involves the exploration of buildings and manmade structures within the urban environment. The activity often involves trespassing on parts of buildings to which public access is prohibited, which the public have no licence to access and which are intended to be secure. The term "urban exploration" is commonly abbreviated to "urbex", "UE", "bexing" and "urbexing". One particular feature of urban exploration is known as "rooftopping". This is an activity in which individuals gain access to the roof of a building, generally without the consent of the building owner, in order to take photographs and/or videos. Urban explorers see the tallest buildings as trophy targets.
6. Many urban explorers use social media and other forms of media to promote their activities, with a view to building their social media profile through platforms including YouTube, Facebook, Instagram and Snapchat. Some generate income this way. Some urban explorers have their own channels on YouTube.
7. The risks involved in urban exploring are apparent from the number of deaths that have occurred in various places around the world. A list of such deaths, running to 16, is attached to the affirmation dated 20 July 2019 of Mr Stuart Wortley, a Partner at Eversheds Sutherland (International) LLP, the applicants' solicitors. It is unlikely to be controversial to note that urban exploring is potentially a dangerous activity. That, no doubt, is an important part of its appeal to those who undertake it.
8. The Shard is the tallest building in Western Europe and is therefore a trophy target for trespassers and, in particular, urban explorers. It has been the target of numerous actual and threatened acts of trespass. Anti-climbing measures have been installed at The Shard, but they are obviously not entirely effective. The Shard is located next to London Bridge station, which is the fourth busiest railway station in the UK, serving the south and the southeast of England.

Procedural history

9. These proceedings were served on Mr King-Thompson's solicitors, who were authorised to accept service on his behalf, on 9 September 2019, along with the four affirmations provided by the applicants as evidence in support of their committal application against Mr King-Thompson.

Terms of the Injunction

10. The Injunction included a penal notice, making it clear to anyone with sight of the Injunction that among the possible sanctions for breach of the Injunction is imprisonment. In addition, a warning notice regarding the Injunction itself ("the Warning Notice") was posted at various points around The Shard. The Warning Notice reads as follows:

"THE SHARD

IMPORTANT NOTICE


HIGH COURT OF JUSTICE - CLAIM NO. HQ18X00427

On 8th February 2018, an order was made in the High Court of Justice prohibiting anyone from trespassing on these premises.

The area beyond these doors is private and you will be trespassing and in breach of this injunction if you enter.

Anyone in breach of this injunction will be in contempt of court and may be imprisoned, fined or have their assets seized.

A copy of the court order is available from enquiries@shardquarter.com

Teighmore Limited"

The applicable legal principles

11. The procedural requirements governing a committal application are set out in CPR Part 81.
12. The law that applies to establish if there has been a contempt of court by virtue of the breach of a court order is summarised in numerous recent cases. One helpful example of such a summary is in the judgment of Marcus Smith J in Absolute Living Developments Limited v DS7 Limited [2018] EWHC 1717 (Ch) at [30]. That case concerned breaches of a freezing order, but the same principles apply to the Injunction. The key principles are:

i) The order must bear a penal notice.

ii) There has to have been effective service on the respondent, either by personal service or, as in this case, by substituted service where that has been permitted.

iii) The order must be capable of being complied with (in the sense that the time for compliance is in the future), and it must be clear and unambiguous.

iv) The breach of the order must have been deliberate, which includes acting in a manner calculated to frustrate the purpose of the order. It is not necessary, however, that the respondent intended to breach the order in the sense that he or she knew the terms of the order and knew that his or her relevant conduct was in breach of the order. It is sufficient that the respondent knew of the order and that his or her conduct was intentional as opposed to inadvertent: Spectravest v Aperknit [1988] FSR 161 at 173).

v) A deliberate breach of an order is very significant. It is clearly in the public interest that court orders be obeyed.

vi) The standard of proof in relation to any allegation that an order has been breached is the criminal standard. The burden of proof is on the applicant or applicants to establish an allegation of breach to the criminal standard.

13. In this case, I must, in other words, be sure beyond reasonable doubt that Mr King-Thompson has committed a deliberate breach of the Injunction. The burden of proof is on the applicants to establish to the criminal standard that he has committed the alleged breach.
14. Because of the consequences of breaching an injunction order with a penal notice attached, the terms of the order must be clear and unequivocal and should be strictly construed. This was emphasised by Lord Clarke in the Supreme Court in the case of JSC BTA Bank v Ablyazov (No 10) [2015] UKSC 64, [2015] WLR 4754 at [19], where Lord Clarke approved a statement to this effect in the judgment of Beatson LJ at [37] of the Court of Appeal's decision in the same case ([2013] EWCA Civ 928).
15. Mr David Forsdick QC, who represents the applicants, drew my attention to passages in the reference work Arlidge, Eady & Smith on Contempt (5th Edition), that highlights the importance placed by the court in civil contempt proceedings on the public interest in seeing that court orders are upheld. I was referred to paras 3-73 and 3-74 of Arlidge, Eady & Smith, and my attention was drawn in particular to the observation made by Lord Woolf MR in Nicolls v Nicholls [1997] 1WLR 314 at 326B-C:

"Today it is no longer appropriate to regard an order for committal as being no more than a form of execution available to another party against an alleged contemnor. The court itself has a very substantial interest in seeing that its orders are upheld."

16. Arlidge, Eady & Smith goes on to discuss the judgment of Lord Phillips MR in Mid-Bedfordshire District Council v Thomas Brown [2004] EWCA Civ 1709 at [26]-[27], where the Master of Rolls emphasised the importance of court orders being obeyed and the necessity for sanctions in circumstances where they are deliberately disobeyed:

"26. The practical effect of suspending the injunction has been to allow the defendants to change the use of the land and to retain the benefit of occupation of the land with caravans for residential purposes. This was in defiance of a court order properly served on them and correctly explained to them. In those circumstances there is a real risk that the suspension of the injunction would be perceived as condoning the breach. This would send out the wrong signal, both to others tempted to do the same and to law-abiding members of the public. The message would be that the court is prepared to tolerate contempt of its orders and to permit those who break them to profit from their contempt.

27. The effect of that message would be to diminish respect for court orders, to undermine the authority of the court and to subvert the rule of law. In our judgment, those overarching public interest considerations far outweigh the factors which favour a suspension of the injunction so as to allow the defendants to keep their caravans on the land and to continue to reside there in breach of planning control."

17. I also bear in mind that:

i) the sanction of custody on a committal application is the "court's ultimate weapon", as noted by Mrs Justice Proudman in JSC BTA Bank v Solodchenko [2010] EWHC 2404 (Comm), and must be sparingly used and only invoked when truly needed;

ii) the sanction of committing a person to prison for contempt can only be justified where the terms of the order allegedly breached are unambiguous and the breach is clear beyond all question: see, for example, Redwing Ltd v Redwing Forest Products Ltd [1947] 64 RPC 67 at 71 (Jenkins J).

Evidence of alleged breaches

18. In support of the committal application the applicants have submitted evidence in the form of four affirmations, each accompanied by one or more exhibits.
19. The first affirmation is dated 20 July 2019 and is the affirmation made by Mr Wortley to which I have already referred. In his affirmation Mr Wortley gives evidence about the activity of urban exploring and some of the well-known individuals who are involved in urban exploring beyond Mr King-Thompson, who has become well-known since his climb of The Shard.
20. Mr Wortley describes the circumstances in which the Injunction in this case was obtained. He also describes the circumstances in which Mr King-Thompson first came to the attention of his firm in November 2018 after he had uploaded photograph and video footage showing him climbing a tower crane at one of the 15 construction sites at Wembley Park on Bonfire Night, using the firework display at Wembley Stadium as a backdrop to his images. In relation to that, Mr Wortley referred to a witness statement prepared in relation to that incident by Mr Matt Voyce, a construction director at Quintain Limited, one of the companies involved with the Wembley Park development. At para 39 of Mr Voyce's witness statement, Mr Voyce referred to an incident in which five well-known urban explorers had deliberately breached an injunction to restrain trespass at Newfoundland, a construction site at Canary Wharf which was protected by an injunction obtained in February 2018. At para 50 of that statement he referred to committal proceedings that occurred before HHJ Freedman, sitting as a Judge of the High Court, on 26 November 2018. It is reasonable to suppose that Mr King-Thompson would have read Mr Voyce's witness statement and by that means would have become aware, if he was not already, of the serious implications of breach a court injunction.
21. Mr Forsdick took me to the judgment of HHJ Freedman in the proceedings to which Mr Voyce had referred, where the judge indicated that he had seriously considered sending the five young men, who were of roughly similar age to Mr King-Thompson, to prison for breach of that injunction, but where he ultimately decided that it was not necessary, for reasons given in his judgment. The judge very clearly warned those respondents that on a future occasion imprisonment might be inevitable.
22. Mr Wortley also gives evidence as to the events of 8 July 2019. The climb started at 5:00 am. Mr King-Thompson climbed up the external structure of The Shard. Mr Wortley also deals with media coverage of the climb as well as various videos uploaded by Mr King-Thompson himself or by others. There was a significant amount of coverage of the climb in the days and weeks that followed it.
23. I also have the affirmation dated 25 July 2019 of Ms Joanna Begaj, an associate at Eversheds Sutherland, in which she:

i) notes that Mr King-Thompson has acquired a manager since his climb of The Shard, who happens to be the same manager as represents Mr Alain Robert, a famous urban explorer known as "the French Spiderman";

ii) refers to an Instagram post made by Mr King-Thompson on 21 July 2019 in which he referred to his ascent as illegal and to which he also appended the hashtag #rooftopilegal [sic]; and

iii) refers to an interview with Mr Piers Morgan and Ms Susanna Reid on the television programme Good Morning Breakfast on 10 July 2019, during which Mr King-Thompson refers to having been helped in his preparations by seven other individuals.

24. I also have the affirmation dated 26 July 2019 of Ms Kay Harvey, Head of Property Management at Real Estate Management (UK) Limited, in which she deals with:

i) the posting of the Warning Notice at various locations at The Shard;

ii) the anti-climbing measures at The Shard;

iii) visitors to the public viewing gallery at The Shard and the visit of Mr King-Thompson himself to the public viewing gallery at The Shard on 30 November 2018;

iv) the climb itself on 8 July 2019; and

v) the questioning of Mr King-Thompson by the Metropolitan Police on 18 July 2019 in connection with possible offences of criminal damage, aggravated trespass, public nuisance and trespass on the railway, at the end of which, Ms Harvey understands, he was issued with a caution for trespassing on the railway.

25. Regarding Mr King-Thompson's visit to the public viewing gallery on 30 November 2018, Ms Harvey notes that he had bought his ticket on-line the day before and made his visit at about 1:00 pm. She says that during that visit he would have had to walk past at least 10 copies of the Warning Notice regarding the Injunction on level 1 (5 locations), level 33 (3 locations), level 68 (one location) and level 72 (one location).
26. Regarding the events of 8 July 2019, Ms Harvey stated that Mr King-Thompson had accessed The Shard from next to platform 9 at London Bridge Station, climbing on to the glazed roof above London Bridge Station and from there accessed the bottom of The Shard structure using suction cups to get over the lower part of the climb in order to circumvent anti-climbing measures. She said that he then was able to abandon the suction cups after level 5 and eventually reached level 73, the floor immediately above the public viewing gallery, to which there was no public access at the time, where he stopped climbing. The police and two ambulances were called to the site, but Mr King-Thompson was not arrested at that time.
27. Finally, I have a second affirmation, this one dated 29 August 2019, from Ms Begaj of Eversheds Sutherland, in which she gives evidence as to a video podcast uploaded on 27 July 2019 between Mr King-Thompson and Ms Ally Law, a well-known urban explorer, in which Mr King-Thompson talks about months spent planning the climb, the speed and aggression needed for the climb and the closure of London Bridge Station as a result of his climb. Regarding that last point, he appears to minimise the disruption he caused, saying during the podcast:

"Yes, I may have closed down a little bit of the station, but you know, like, at 5 o'clock there's not many training running anyway, so ..."

28. Ms Begaj also notes in her second affirmation that during the podcast Mr King-Thompson described his many nights of reconnaissance, including in disguise, up to a year of preparation, getting help from seven unnamed associates, the various routes up The Shard that he considered, and the creation of his brand as a result of his climb.
29. Ms. Begaj also gives evidence as to the appearance of Mr King-Thompson and his mother on the BBC One Show to discuss the climb. He apparently talked in that interview about taking his mother to dinner at The Shard before climbing it, the visit being one of around 200 he made as part of his planning, in various disguises and so on.

Findings

30. Mr King-Thompson has made full admissions in these proceedings, although only belatedly. He has admitted he has been aware of the Injunction since the Spring of this year. He has described his meticulous preparation for the climb in social media posts and interviews, and I have referred to some of that in my review of the evidence. He would have passed numerous copies of the Warning Notice, particularly during his visit to the public viewing gallery of The Shard, and he has admitted he was aware of the Injunction and its contents since last Spring, substantially before his climb. In the circumstances I am satisfied to the criminal standard that Mr King-Thompson's breach of the Injunction was knowing, deliberate and contumacious.

Legal framework for sentencing

31. Section 14 of the Contempt of Court Act 1981 provides that a committal must be for a fixed term and that the term shall not on any occasion exceed two years. If the committal is ordered to take effect immediately, the contemnor is entitled to automatic release without conditions after serving half of that committal.
32. There are two functions of sentencing for civil contempt. The first is to uphold the authority of the court and to vindicate the public interest that court orders should be obeyed. The second is to provide some incentive for belated compliance. These dual purposes are discussed in various authorities, one being JSC BTA Bank v Solodchenko (No. 2) [2012] 1 WLR 350 (CA) (Jackson LJ) at [45].
33. In all cases, it is necessary to consider whether committal to prison is necessary and, if so, what the shortest time necessary for such imprisonment would be and whether a sentence of imprisonment can be suspended.
34. Lawrence Collins J in the case of Crystal Mews Limited v Metterick [2006] EWHC 3087 (Ch) set out a number of principles that apply to sentencing for civil contempt. At [13] he notes various factors to be taken into account when considering the appropriate penalty:

"13. The matters which I may take into account include these. First, whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy. Second, the extent to which the contemnor has acted under pressure. Third, whether the breach of the order was deliberate or unintentional. Fourth, the degree of culpability. Fifth, whether the contemnor has been placed in breach of the order by reason of the conduct of others. Sixth, whether the contemnor appreciates the seriousness of the deliberate breach. Seventh, whether the contemnor has co-operated."

35. In a subsequent case, Asia Islamic Trade Finance Fund Ltd v Drum Risk Management Ltd [2015] EWHC 3748 (Comm) at [7] Popplewell J added to the foregoing list the following factor:

"… whether there has been any acceptance of responsibility, any apology, any remorse or any reasonable excuse put forward."

36. Finally, Popplewell J in the Asia Islamic Trade Finance Fund Ltd case (affirmed by the Court of Appeal) made the point that if it is determined that a term of committal is inevitable, then where there have been admissions it is appropriate to make some form of reduction in the term. By analogy with the Sentencing Council Guidelines, a maximum reduction of one third might be appropriate where the admissions are made at the outset of proceedings for contempt, and thereafter a sliding scale down to about 10 per cent where admissions are made at trial.
37. In this case Mr King-Thompson was 19 years old at the time of the breach of the Injunction, and he is 20 years old now. Mr Forsdick has drawn my attention to sections of Arlidge, Eady & Smith dealing with the sentencing of defendants between the ages of 18 and 21, namely, paras 14-74 to 14-78 and 14-81 to 14-82, the key points being that (i) where a custodial sentence is passed, rather than going to adult prison, the custodial sentence will be served as detention in a Young Offenders' Institution and (ii) the court is not required to obtain a pre-sentence report before passing sentence.

Culpability

38. Considering Mr King-Thompson's culpability for this breach, I have already indicated that I consider the breach to have been deliberate, knowing and contumacious. His culpability is, therefore, high.

Harm

39. In terms of the harm caused by his contempt, it seems to me there are a number of heads of harm:

i) most seriously, the harm to the public interest caused by a serious breach of an injunction such as the one at issue in this case;

ii) the risk of death to which Mr King-Thompson subjected himself and, by his example and the publicity given to his breach in which he actively participated, the increased risk that others, perhaps less skilful, will attempt the same or similar illegal and dangerous climbs;

iii) his compromising of the security of The Shard; and

iv) the disruption at London Bridge Station (not the most serious harm occasioned by his breach, but he did cause disruption to operations there, inconveniencing members of the public).

40. Regarding compromising the security of The Shard, I note that ionic buildings are sometimes the target of terrorists. If such a building is targeted by urban explorers and information regarding ways into and around the building are posted online, the safety and security of those who live in, work in and visit such buildings is potentially at risk. Some of the publicity that Mr King-Thompson has given to his climb would appear to have increased that risk in relation to The Shard.

Aggravating factors

41. In my view, the aggravating factors in this case are:

i) despite being aware of the Injunction and its penal consequences, Mr King-Thompson's meticulous planning and preparation over a lengthy period, including numerous visits to the site, including the use of disguises;

ii) the involvement of up to seven accomplices (which also makes it all the more unlikely that Mr King-Thompson would not have been fully aware of the consequences of breaching the injunctions, since there is likely to have been discussion between them concerning the possible consequences of the climb);

iii) the fact that Mr King-Thompson has actively and widely publicised the contempt through social media and interviews with traditional media.

42. Regarding that last point, I take into account the submission made on his behalf by Mr Philip McGhee that to some extent he has just gone along with that publicity rather than actively courted it, but nonetheless Mr King-Thompson had the choice not to go along with that publicity and/or to take the opportunity of the publicity to express contrition for breaching a court order, which he does not appear to have done.

Mitigating factors

43. In his letter to the court, to which I will revert in a moment, Mr King-Thompson says he chose a time and a route to minimise public possible disruption. He was therefore clearly aware that there could be some disruption of the public. In his letter, Mr King-Thompson says the following:

i) he climbed at 5:00 am to minimise potential adverse effect on the travelling public;

ii) he chose a route where, if he fell, he would land on a roof, rather than directly on to a pedestrian concourse (although there is no evidence that he made any assessment as to whether, if he had fallen, the roof would have held up under the impact of his fall); and

iii) he did not wear a head camera because the climb was not about publicity (although he has given interviews and made various social media postings about the climb).

Personal mitigation

44. In relation to personal mitigation, Mr King-Thompson's age, 19 at the time of the climb and 20 now, is obviously very important, and I accept that there must have been a degree of immaturity in his approach to this breach.
45. I also take into account his previous good character. He received a caution for trespass as a result of this incident, but other than that he has had no involvement with the police. Indeed, I have had a couple of character references that speak of his positive good character.
46. This morning I was handed a bundle of documents, which I have read carefully. The bundle includes the following documents:

i) various letters, documents and medical records dealing with Mr King-Thompson's early history of learning difficulties and his diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), for which he was prescribed medication;

ii) a report dated 16 October 2019 by Dr David Oyewole, a consultant psychiatrist;

iii) an undated letter by Mr King-Thompson to the court;

iv) a letter dated 16 October 2019 (so, just five days before this hearing) from Mr King-Thompson's solicitors confirming that Mr King-Thompson accepts liability and that he does not intend to contest the committal proceedings;

v) a letter dated 16 October 2019 from a family friend of the King-Thompson family, Mr Kent Rowey, who talks of Mr King-Thompson's high personal integrity and genuine desire to help others; and

vi) an e-mail dated 4 October 2019 from JP Hassett of R.E.A.L Fundraising, who talks about Mr King-Thompson's passion for fundraising for the young homeless, his high work rate and his attention to detail.

47. Regarding Dr Oyewole's report, at para 7.6 Dr Oyewole notes that ADHD is not a direct factor in the decision to climb, but at para 7.7 he suggests that it is an indirect effect, noting that, in his view, there is a subset of individuals with ADHD who find that ultra-exercise has a significant beneficial effect. I accept that Mr King-Thompson's ADHD may have played a factor in his breach of the Injunction, but that is merely explanatory, not exculpatory.
48. Regarding Mr King-Thompson's letter to the court, I presume that it was written recently. I accept that he is now sorry and takes full responsibility for his actions. He talks about his aim in life to inspire individuals and to spread his philosophy of following one's passion. He also talks about his having made a number of conscious decisions to minimise the impact of his climb on others, as I have already mentioned.

Credit for admissions/remorse

49. Mr King-Thompson has made a late admission for liability, but the extensive publicity that has been given to his climb undermines the credibility of his claim that he is now remorseful. His counsel suggested that he merely went along with much of the publicity that has accompanied his climb, but even taking that view, the fact that he did so and did not take the opportunity to express remorse in my view undermines his claim of remorse. I note that he expressed some contrition for causing a degree of disruption to commuters, but no apparent contrition for breaching a court order until his letter was handed up to me this morning.

The sentence

50. I have had regard to the eloquent and forceful submissions of Mr McGhee, who has said to the court all that could be said in mitigation on Mr King-Thompson's behalf.
51. Given the clearly deliberate and knowing nature of the breach in this case, which involved meticulous planning over an extended period, involvement of at least one other person (and, on Mr King-Thompson's own account, advice and assistance of up to seven other people), Mr King-Thompson's lack of remorse until really very recently, and the giving of publicity to the contempt through social and traditional media, this matter crosses the custody threshold.
52. In the circumstances, given the high culpability and number of aggravating factors, which involve a deliberate and knowing flouting of the Injunction, despite Mr King-Thompson's age and previous good character, I am not able to suspend the sentence. Therefore, the sentence will be one of immediate custody.
53. I have mentioned that sentencing for contempt typically has a dual purpose; punishment and coercion. In this case, however, it is not possible for Mr King-Thompson to purge his contempt. The order has been breached, and that breach cannot be cured.
54. Had Mr King-Thompson been older, the starting point would have been at least 39 weeks (or nine months). However, in light of his age and apparent immaturity I have taken a starting point of 26 weeks (or six months). There are a number of aggravating factors which I have already mentioned, but I balance against that that he has made an admission, albeit late, and has expressed remorse and contrition, although he appears to have done so principally in the shadow of this hearing and the imposition of sanction, rather than due to any real contrition for deliberately breaching a court order.
55. I have taken his previous good character, and indeed positive good character as evidenced by the character references, into account.
56. Accordingly, overall the sentence that I consider to be just and proportionate, in light of Mr King-Thompson's deliberate and knowing breach of the Injunction, having regard to the aggravating and mitigating factors, is a total sentence of 24 weeks' detention in a Young Offenders' Institution.
57. Mr King-Thompson will be released after serving one behalf of that sentence.
58. I now commit Mr King-Thompson into the hands of the Tipstaff to be taken into detention.

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This transcript has been approved by Mr Justice Murray