The recent sentencing of climate protestors

On 18^th July 2024, attentions were drawn to the sentences received by five Just Stop Oil activists, including its co-founder, Roger Hallam, for the offence of conspiracy to intentionally cause a public nuisance, namely by disrupting traffic on the M25.[1] Mr Hallam received a sentence of five years and the others received sentences of four years. Many viewed the sentences as excessive and repressive considering that the protests were peaceful,[2] despite causing large-scale disruption with significant economic consequences.

The sentences also constituted a marked increase on other sentences imposed for similar offending. For example, in R v Trowland and Decker [2023] EWCA Crim 919,[3] sentences of 3 years and 2 years 7 months were imposed following trial for the offence of intentionally or recklessly causing a public nuisance contrary to s. 78(1) of the Police, Crime, Sentencing and Courts Act 2022. While on 2 August 2024, Just Stop Oil campaigners received sentences following pleading guilty to causing a public nuisance for disrupting a motorway – five of whom received custodial sentences with terms ranging between one year eight months to two years, with another receiving a 21-month suspended sentence.[4]

The sentencing of climate protestors is a relatively new phenomenon that courts around the country are grappling with, and which, in doing so, they must give effect to the will of Parliament in enacting the Police, Crime, Sentencing and Courts Act 2022 (‘2022 Act). The 2022 Act has been controversial and Part 3 contains numerous provisions placing limitations on protests which impact directly or indirectly on the rights, freedoms and movements of protestors. Furthermore, defendants have faced difficulties in successfully raising the defence of reasonable excuse under s.78(3) for exercising their rights pursuant to Articles 10 and 11 ECHR.

When one considers the strong legal grounding of the rights to freedom of expression (Article 10 ECHR) and assembly (Article 11 ECHR) it is unsurprising that the sentencing of climate protestors has been divisive. The general position in European Court of Human Rights caselaw is that exceptions to freedoms of expression and assembly, when exercised peacefully, must be interpreted narrowly (see e.g. Kudrevičius and Others v Lithuania (2015) (Application no. 37553/05) [5] at [142] and Navalny v. Russia (2014) 68 EHRR 25[6] at [137]). Furthermore, in Alekhina v Russia (2019) 68 EHRR 14[7], the European Court of Human Rights was clear that:

“peaceful and non-violent forms of expression should not be made subject to the threat of imposition of a custodial sentence…”.

This has also been recognised by courts domestically. For example, in Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23, Mr Justice Laws described the margin that must be given to protests ([43]):

“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them. Sometimes they are wrong-headed and misconceived. Sometimes they betray a kind of arrogance: an arrogance which assumes that spreading the word is always more important than the mess which, often literally, the exercise leaves behind.”

While in R v Jones (Margaret) [2007] 1 AC 161 at [89], it was considered that “civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history.” In AG Reference (Colston Four) [2022] EWCA Crim 1259, at [113], it was considered that the full passage at [89] in R v Jones demonstrates that prosecutors should avoid prosecutions which are themselves disproportionate in terms of the European Convention on Human Rights; and secondly, that disproportionate sentences are an unlikely outcome.

How such lengthy sentences can be imposed has therefore confounded many, particularly when some convicted of violence and drug offences have received lesser sentences, and at a time when prisons are full.  The need for deterrence has been one justification (Trowland and Decker per Lord Chief Justice Carr at [70]). Moreover, Lord Chief Justice Carr considered that the “more disproportionate or extreme the action taken by the protester, the less obvious is the justification for reduced culpability and more lenient sentencing” (Trowland and Decker at [30]).

In the absence of Sentencing Council Guidelines for these new offences under the 2022 Act, Courts will continue to grapple with passing appropriate sentences that achieve deterrence, while balancing the conscientious motives of those protesting for a cause considered by many as existential.

[1] https://www.judiciary.uk/wp-content/uploads/2024/07/R-v-Hallam-and-others.pdf

[2] https://www.thetimes.com/uk/law/article/stars-take-attorney-general-to-task-over-just-stop-oil-jail-terms-tk3rdkbx6

[3] https://www.judiciary.uk/wp-content/uploads/2023/07/R-v-Trowland-judgment-310723.pdf

[4] https://www.bbc.co.uk/news/articles/cgxqwwev50ko

[5] https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-158200%22]}

[6] https://hudoc.echr.coe.int/fre#{%22fulltext%22:[%22Russia%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22],%22itemid%22:[%22001-187605%22]}

[7]  https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-184666%22]}