“46. By section 78 Parliament thus introduced a new offence which covers (intentional or reckless) non-violent protest (for which there is no reasonable excuse). Three points deserve emphasis. First, s. 78(1)(c) introduces a fault element (of intention or recklessness), which the common law offence did not require. The LCR commented that: "[i]t is unjust that defendants should be exposed to such a serious sanction unless there is equally serious fault on their part" (see [3.53]). Secondly, s. 78(1)(b)(ii) makes it a criminal offence if a person "obstructs the public or a section of the public in the exercise or enjoyment or a right that may be exercised or enjoyed by the public at large". There is no qualification that the act of obstruction must be serious or significant before it becomes a criminal offence. Thirdly, custodial sentences of up to 10 years can be warranted.”
“83… In implementing section 78 Parliament expressed its clear intention that stringent custodial sentences may be required for (intentional or reckless) non-violent protest offending for which there is no reasonable excuse. The 10-year maximum term provides sentencing context that was previously absent; it represented Parliament's assessment of the seriousness of the offending.”
“47. There is no definitive Sentencing Council Guideline specific to the offence (nor for any obvious analogous offence). The court thus takes into account the statutory maximum and any relevant sentencing judgments of this court. We have not been shown any appellate judgments addressing the sentencing regime for the statutory offence of public nuisance, although there are appellate judgments arising out of sentences for the old common law offence. They are considered below, in particular Roberts and Brown, where the relevant Strasbourg jurisprudence was also examined. 48. The seriousness of the offence is to be assessed by considering the culpability of the offender and the harm caused by the offending (sees. 63 of the Sentencing Act 2020 ). The court must also consider which of the five purposes of sentencing identified ins. 57 of the Sentencing Act 2020 , namely punishment, reduction of crime (including its reduction by deterrence), reform and rehabilitation, public protection and the making of reparation, it is seeking to achieve through the sentence that is to be imposed. Once a provisional sentence is arrived at, the court takes into account relevant aggravating and mitigating features. Other considerations, such as totality, may be engaged under the stepped approach set out in the Sentencing Council's General Guideline: Overarching Principles. Custodial sentences must be what is, in the opinion of the court, the shortest term commensurate with the seriousness of the offence (sees. 231(2) of the Sentencing Act 2020 ). 49. The (qualified) rights to freedom of expression and assembly under Articles 10 and 11 are relevant to sentence. Article 11 is generally seen as a more specific, or lex specialis, form of the right to freedom of expression in Article 10, and the two can be considered together. Particular caution is to be exercised in imposing a custodial sentence in non-violent protest cases. (See Taranenko v Russia (App No 19554/05) (2014) ECHR 485 ; 37 BHRC 285 at [87]; Kudrevicius v Lithuania (App No 37553/05)(2016) 62 EHRR 34 ; 40 BHRC 114 (“Kudrevicius”) at [146]; Roberts at [43].) It may also be relevant if the views being expressed relate to important and substantive issues (see DPP v Ziegler and others[2021] UKSC 23 ;[2022] AC 408 (“Ziegler”) at [72]), although we emphasise immediately below the limits of such consideration. Determination of the proportionality of an interference with ECHR rights is a fact-specific enquiry which requires the evaluation of the circumstances in the individual case. It is a flexible notion, which depends on fair and objective judicial assessment; there are no rigid rules to be applied. The inquiry requires consideration of the questions identified by the Divisional Court at [63] to [65] of its judgment in DPP v Ziegler[2019] EWHC 71 (Admin) ;[2020] QB 253 (cited by the Supreme Court at [16]). 50. It is no part of the judicial function to evaluate (or comment on) the validity or merit of the cause(s) in support of which a protest is made (see Roberts at [32]). However, a conscientious motive on the part of protesters may be a relevant consideration, in particular where the offender is a law-abiding citizen apart from their protest activities. In such cases, a lesser sanction may be appropriate: a sense of proportion on the part of the offender in avoiding excessive damage or inconvenience may be matched by a relatively benign approach to sentencing. The court may temper the sanction imposed because there is a realistic prospect that it will deter further law-breaking and encourage the offender to appreciate why in a democratic society it is the duty of responsible citizens to obey the law and respect the rights of others, even where the law is contrary to the protesters' own moral convictions. However, the more disproportionate or extreme the action taken by the protester, the less obvious is the justification for reduced culpability and more lenient sentencing. (See R v Jones (Margaret)[2006] UKHL 16 ;[2007] 1 AC 136 (“Jones”) at [89]; Roberts at [33] and [34]; Cuadrilla Bowland Ltd v Persons Unknown[2020] EWCA Civ 9 ;[2020] 4 WLR 29 (“Cuadrilla”) at [98] and [99]; National Highways Ltd v Heyatawin and others[2021] EWHC 3078 (QB) ; [2022] Env LR 17 at [50] to [53]; Brown at [66].) 51. Ultimately, whether or not a sentence of immediate custody for this type of offending is warranted, and if so what length of sentence is appropriate, will be highly fact-sensitive, set in the context of the relevant legislative and sentencing regime identified above.”
“56. The judge does appear to have treated the protesters' conscientious motives primarily as a matter of mitigation (for which he applied 25% credit). This reflected the manner in which the issue was presented to him on behalf of the protesters at the time of sentencing (i.e. that this was a matter of mitigation). As set out above, we consider that, strictly speaking, these were matters more relevant to culpability. However, the judge elsewhere referred to the fact that the protesters' motives led him to reduce his assessment of their culpability; and, ultimately, we do not consider that any error in approach was material. What matters is whether the protesters' conscientious motives which caused them to exercise their rights of freedom of expression and assembly were reflected properly in the ultimate sentences. As set out further below, we consider that they were.”
“72. The judge was entitled to find the protesters' culpability to be high, despite their conscientious motivation, not least given the extensive planning involved. There was an event planner working with the protesters; the bridge had been chosen as a spectacular protest site in order to attract media attention; another individual had dropped them off on the bridge and then called the police; Mr Trowland had sketched the bridge to work out how the plan could be executed; the date had been chosen by reference to the government's autumn agreement to increase gas and oil licences; Mr Trowland undertook media communications training in order that his message could be better communicated; both protesters practised climbing and throwing ropes between them to facilitate the erection of the banner and the hammocks; specific equipment had been purchased and they carried out a risk assessment; they took food and drink with them. 73. The reasons given by the judge for his finding of culpability were entirely sound: the choosing of a high profile target for maximum disruption; the extensive organisation and planning; the protesters' awareness that the road would be closed and disruption would be caused; that they stayed on the bridge for far longer than was proportionate; their choice to ignore the disruption and anger that would be caused to others; the fact that requests to come down were ignored, as were the risks to those who had to remove them from the bridge in the cherry picker. The protesters' motive was their concern about climate change but the action taken was totally disproportionate.”
“74. The Article 10 and Article 11 protections, whilst not removed, were significantly weakened on the facts. As set out above, the s. 78(3) defence of "reasonable excuse", which incorporates Article 10 and Article 11 protections, was not available to the protesters. The protest was taking place on land from which the public were excluded. The further away from the core Article 10 and 11 rights a protester is, the less those rights merit an assessment of lower culpability or, putting it another way, a significant reduction in sentence (see Kudrevicius at [97]). In fact, by ascending the bridge, the protesters were committing a criminal offence under theDartford-Thurrock Crossing Act 1988 (as set out above). This is relevant to an evaluation of whether the sentences were manifestly excessive and/or proportionate. 75. Further, the Article 10 and Article 11 protections were weakened by the fact that the disruption here was the central aim of the protesters' conduct, as opposed to a side-effect of the protest. Persuasion is very different from attempting (through physical obstruction or similar conduct) to compel others to act in a way a defendant desires. The distinction between protests which cause disruption as an inevitable side effect and protests which are deliberately intended to cause disruption is an important one. (See Cuadrilla at [43] and [94].) 76. The judge was also entitled to conclude that the obstruction was significant: indeed, in this case it was of the utmost seriousness. It affected the Strategic Road Network, a network that was essential to the growth, wellbeing and balance of the nation's economy. We have referred to the protest's striking effects in statistical terms above, together with the evidence from affected individuals and businesses. Hundreds of thousands of members of the public were affected, some very significantly. In short, the protest resulted in enormous practical and personal disruption, alongside damage to businesses and the economy and a need for the deployment of significant police and Highways Agency resource and assistance.”
“58. … The judge did not ignore the prospect of rehabilitation; as recorded above, he referred expressly to it as “an important factor”
“66. These comments do not appear to us materially to advance the protesters’ challenge. First, they are general in nature and always subordinate to the fact-sensitive exercise to be carried out in each case. Secondly, the direct aim of the protesters here was to cause maximum disruption (in order to deliver their message); a stand-out feature in this case is the lack of moderation on the part of the protesters. Thirdly, conscientious motivation/moral difference is already factored into the question of culpability, as identified above. Fourthly, as for deterrence, that is an area pre-eminently to be assessed on the facts, and in any event Leggatt LJ was addressing only deterrence to the offenders themselves, not the wider public, which may be a highly relevant consideration. Fifthly, whilst the social bargain or “dialogue” continued beyond the offending itself, the disproportionate nature of the protesters' actions remains highly relevant; and again the specific facts of each case, such as previous convictions and bail status, take precedence.”
“86. As set out above, the offending in Roberts and Brown occurred in 2017 and 2019 respectively. A court's perception of the strength of the need for deterrence can change over time. Specifically, as is common knowledge, supporters of organisations such as Just Stop Oil have staged increasingly well-orchestrated, disruptive and damaging protests. It can be said that the principle of deterrence is of both particular relevance and importance in the context of a pressing social need to protect the public and to prevent social unrest arising from escalating illegal activity.”
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
“Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized, persecuted or harassed in any way for their involvement. This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings.”
“…those who climbed the gantries in furtherance of the conspiracy alleged did so as lawbreakers and trespassers.Article 10 of the ECHR confers no licence to trespass on somebody else’s property in order to express one’s views: see Richardson v DPP[2014] UKSC 8 per Lord Hughes at para 3. It must follow that neither can Article 11 confer such licence.”
“…the conspiracy alleged against the defendants contemplated the most substantial disruption to traffic on London’s orbital motorway. The Zoom call reveals the expression of the hope by Roger Hallam (and not dissented from by any other defendant) that the planned disruption would lead to total gridlock of the motorway system and other major roads. Such gridlock could have had catastrophic effects had it eventuated, by reference for example to food supplies and the maintenance of law and order. Although there was no total gridlock, very substantial disruption did occur. What occurred, and what was contemplated, was conduct of the sort identified by the European Court of Human Rights in Kudrevicius v Lithuania 62 EHRR 34 as falling outside the “core” of ECHR rights. In those circumstances, disproportionality is inherently unlikely.”
“A really, like, super-significant aspect of this project, which takes it away from anything that has happened before. And that’s that it has the potential to create gridlock. In other words, if we take a section of motorway, a circular motorway, people block gantries at close equidistant spaces around that circle, at a certain time of the day, the whole motorway will fill up with cars, and then no one will be able to get on to that motorway, and it will back up on all the other motorways and all the other A-roads. In other words, it will cause a hundred times more disruption than simply two or three people doing it, right. And there’s a whole mathematics around it.”
“The M25 intersects with no fewer than nine other motorways over its circular course, with the M40, the M1, the A1(M), the M11, the M20, the M26, the M23, the M3, and the M4. It also intersects with a number of major A-roads, into and out of London. In addition, four of London’s airports, Heathrow, Gatwick, Luton, and Stanstead, lie close to the M25 with many of those travelling through or working at those airports using the M25 to get to and from them. Had the gridlock for which all five of you devoutly hoped come to pass, the consequences would have been catastrophic. Mass road disruption in London and southern England would have had major implications for food supplies and the maintenance of law and order, among other things. (…) Section 63 of the Sentencing Code requires me, in assessing the seriousness of your offending, to have regard not only to the harm you actually caused, but also the harm you intended to cause.”
“I think I can fairly observe that there is a general consensus, in both scientific and societal terms, that man-made climate change exists, and that action is required to mitigate its effects and risks. (…) I acknowledge that at least some of the concerns motivating you are, at least to some extent, shared by many.”
“I do not regard your status as non-violent, direct-action protestors as affording you any particular mitigation. (…) While there will be cases where the conscientious motives of protestors may permit a degree of leniency from this court, this is not one of them.”
“Yours is not an appropriate case for leniency. This was a conspiracy to cause extreme and disproportionate disruption.”
“…there is a real risk of each of you committing further serious offences in pursuit of your objectives, unless you are deterred from doing so by exemplary sentences in this case. Such sentences will hopefully also deter others who share your outlook from doing what you did.”
“As the character evidence indicates, and as I learned for myself during the trial, you are an intelligent and well-educated young woman. Neither immaturity nor personal disadvantage has driven you to crime; your own conscious choices have.”
“such massive economic disruption that the Government cannot ignore the demand”; and “sufficient mass disruption to force this Country to face its responsibilities and force this Government to respond to the illegality and immorality of what it is engaging in”
“Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear. The discussion in R. v Peters[2005] EWCA Crim 605 ; [2005] 2 Cr. App. R. (S.) 101 (p.627) is an example of its application: see [10]–[12]. Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays. Experience of life reflected in scientific research (e.g. The Age of Adolescence: thelancet.com/child-adolescent;17 January 2018 ) is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18th birthday.”
“The court accepts, of course, that a conscientious motive may be a relevant consideration, particularly where, otherwise, the offender is a law-abiding person. You committed offences simply by being on the motorway. You actions were, in the view of this court, disproportionate to your aims. I do not regard your status as non-violent protesters to afford you any particular mitigation. The very purpose of section 78 was to address the increase in non-violent protest offending. In Trowland and Decker [Lady] Justice Carr said, at paragraph 50: “However, the more disproportionate or extreme the action taken by the protester, the less obvious is the justification for reduced culpability and the more lenient sentencing.”
“The effect of this was considerable. It meant that access to the industrial estate was severely limited. It meant that businesses were not able to operate normally. It meant that personal matters also were caused inconvenience to members of the public who were using it there and as a result several hundred thousand pounds worth of loss was occasioned and a large amount of inconvenience to members of the public. This, in my judgment, was of a different and more serious level than those who sit in roads or even climb up on bridges because this actually involved damage underneath the road. It involved a considerable degree of planning and execution and the danger was that if these road[s] had actually collapsed, either of them, then there could have been severe damage caused or even injury and death. There was a particularly chilling piece of evidence from, I think, a fire officer who said that after he had visited the tunnel he was satisfied if the tunnel had collapsed he would be dealing with a recovery rather than saving people.”
“And the Court of Appeal, in my view, set out to say the approach that judges should take to these matters and start by pointing that the Sentencing Council guideline does not exist but that the custodial sentence available is up to 10 years and the Court of Appeal first of all dealt with matters of Article 10 andArticle 11 of the European Convention on Human Rights , says that those should be taken into account but points out that the appropriate sentence would be very fact-sensitive according to place. I must say, I find Articles 10 and 11 have very little application to this case. There was no restriction on these defendants associating with each other. There is no restriction on these defendants putting their point of view forward. What this case is about is damage to the road structure and placing a - a risk such that roads had to be closed. It is, in that sense, more serious than the case the Court of Appeal considered because that just involved people climbing on bridges and disrupting traffic in that way and this case, the case I am dealing with, there was actual physical damage caused and physical damage which would, in unfortunate circumstances, have led to substantial damage or even injury and death. The Court of Appeal specifically rejected a submission that because this was a conscientious demonstration that non-custodial sentences were appropriate. That was rejected and the court said there are no bright lines in protest cases; rather whether or not a custodial sentence was justified turns on the individual facts. It talked about the matter of conscientious motive. That again is, the Court of Appeal said, a court could properly take into account but again in this case, in my judgment, that is of very limited influence given the nature of the activity which was undertaken and given that the actual offence here arose from the deliberate causation of damage to an area of the public road.”
“… we need to cause an intolerable level of disruption, absolutely intolerable. If it’s not intolerable, we’ll fail... “… what’s really needed is economic disruption, so if people take action in a range of ways which helps to contribute towards that pressure for change then we can, we can win, yeah. “… this is something I’ve chosen to give my life to and it’s the most rewarding thing I’ve ever done.”
“However, it is not the value of the damage caused to the frame that is the most serious aspect of your offending. If the protective screen over the canvas had not done its job, the painting itself, Sunflowers, could have been seriously damaged or even destroyed. The stance of each of you at trial was a blithe dismissal of the risks involved in what you did. You each asserted that, as far as you as you were concerned, there was never any risk to the canvas because it was covered by a glass screen. But neither of you could be sure that the screen would actually protect the painting from the soup. Tellingly, the gallery staff were not sure either. At trial, the jury heard most vivid evidence of how they immediately checked whether the picture itself had been damaged. For all they knew, soup might have seeped through the glass and got onto the canvas. And you were exactly the same position. As Larry Keith, the head of conservation at the National Gallery, said in his evidence, had any liquid got through and made the canvas wet, the consequences could have been very serious. If anything, that is an understatement. Each of you claimed in evidence to care about and value Sunflowers. I reject that evidence. My assessments, having heard all the evidence about what happened, including your role, is that you could not have cared less whether the painting itself was damaged or not. I have no doubt that the publicity you each craved would have been even greater if it had.”
“You two simply had no right to do what you did to Sunflowers, and your arrogance in thinking otherwise deserves the strongest condemnation. The pair of you came within the thickness of a pane of glass of irreparably damaging or even destroying this priceless treasure. That must be reflected in the sentences I pass. Section 63 of the Sentencing Code requires me, in assessing the seriousness of your offending, to consider not only the harm your offence caused, but also the harm it might foreseeably have caused. For the reasons I have explained, that foreseeable harm is incalculable.”
“My assessment is that your culpability is at level A, as your offending involved a very high degree of premeditation and planning. You did not act alone. Others within Just Stop Oil were involved in the conception and execution of what you two did. You paid a previous reconnaissance visit to the National Gallery, and you were carrying the soup and glue you needed to make your protest. You spoke to a journalist beforehand, as I have already mentioned, and the filming and the dissemination of what was filmed on social media had also clearly been planned in advance. So far as harm is concerned, your offending is in category 1 because of the substantial social impact involved. Any attack on priceless art which is on public display can have very harmful societal consequences. Stunts like yours lead to more onerous and intrusive security measures in art galleries and other locations where valuable art and artefacts are on display. That may deter some people from visiting art galleries, museums, and the like. There is even the risk that some treasures might have to be withdrawn from public view altogether.”
“Where a court is considering the seriousness of any offence, it must consider— (a) the offender's culpability in committing the offence, and (b) any harm which the offence— (i) caused, (ii) was intended to cause, or (iii) might foreseeably have caused.” (i) caused, (ii) was intended to cause, or (iii) might foreseeably have caused.”
“Phoebe Plummer, you turned 23 yesterday. You were 21 when you committed the offence of criminal damage, and 22 when you committed the offence of interfering with key national infrastructure. You are a committed Just Stop Oil activist and have previous convictions and many previous arrests to show for it. You committed the slow-walking offence, for which I also have to deal with you, while on bail for the criminal damage matter, and other matters too. Furthermore, you did so in breach of the conditional discharge imposed on you only the previous month for a summary-only public order offence of failing to comply with the conditions for a procession, also in the context of a slow-walking protest. I take no action in respect of that breach, but it is a seriously aggravating feature of your offending on the second matter. You clearly have deeply held convictions about climate change and other matters, and you are perfectly entitled to them of course. But you have evidently decided that your beliefs entitle you to commit crimes as and when you feel like it. They do not. I have read, with care, the pre-sentence report and other mitigation materials provided to me, all now uploaded to the sentencing section of the relevant digital case file. You have represented yourself at the sentencing hearing, as you did at both trials. You delivered your own mitigation. I was treated, if that is the word, to a lengthy exposition of your political and ideological views, not only about climate change but also about a variety of other matters. You are entitled to your views and are not being punished for them. You are being punished for committing criminal offences. But I do repeat what I said when I, at one point, interrupted your address to the court. The suggestion that you and others like you, convicted by juries of your peers following fair trials in a democratic state under the rule of law are political prisoners is ludicrous, self-indulgent, and offensive. It is offensive to the many people in other parts of the world who are suffering persecution, imprisonment, and sometimes death for their beliefs, in places where neither democracy nor just laws are to be found. Perhaps one day you will come to realise that, although I fear that day is some way off yet. You have no remorse for what you did. Instead, you are proud of it. You made no effort to offer me any actual mitigation. In truth, there is none of any substance in your case.”
“Anna Holland, you are now 22 years of age and were 20 at the time of your offence. You have one previous conviction, in June 2023, for an offence of wilfully obstructing the highway. Sorry, in October 2022 for an offence of wilfully obstructing the highway. You were conditionally discharged for that matter in June 2023. Your conviction here does not put you in breach of that conditional discharge. I do note, however, that you committed that offence on6 October 2022 , only eight days before you committed the offence for which I must now sentence you. If not on police bail, you had at the very least, been released under investigation by the time of this offence. I have read and reflected on the pre-sentence report in your case, and on the many character references supplied on your behalf. You are an intelligent young woman who comes from a loving and supportive family. I was particularly struck by the frank and realistic comments in your mother's character reference. There is no doubt that what you did has had a substantial adverse effect on your family. I can see that you acknowledge that. You are currently studying part-time for a Master’s degree at Newcastle University. The mitigation material shows how highly regarded you are by those who know you there as well as those who know you in other contexts. You have not reoffended since October 2022 and I am prepared to accept that you do not intend to offend again.”
“She struck me as both confident and mature in relation to her studies.”; “… I’ve been deeply impressed by her steadfast purpose, self-awareness and integrity. She does nothing without thinking it through, weighing both tactical considerations and deep moral convictions.”