55 - Protest in peril, round 2

Welcome back, dear reader, to the Aarhus blog- one of the top 10 blogs in the UK on a subject beginning with the letters “Aa” (only slightly behind Aardvark World and Aaron’s Stamp Collecting Blog).

There has been a glut of Aarhus-related news in the past two weeks, some of which will need to be covered in future blogs. For example, on 28 March this year Uzbekistan acceded to the Aarhus Convention- welcome! (As usual, miles behind Kazakhstan, which joined in 2001). Now all five nations of Central Asia are among the parties to the Convention.

Also, we all thought the new digest of ACCC decisions would be bang up to date for years to come, but in a surprising turn of events the ACCC has issued three new admissibility decisions and a draft set of final findings, and it isn’t even the end of April- imagine that! To be discussed on a future occasion…

Today, however, we are taking a look at the recent Court of Appeal decision reducing the sentences of the Just Stop Oil protestors for conspiracy to commit a public nuisance by planning a protest blocking the M25. The application of the Aarhus Convention was raised in argument and it is this aspect of the decision we will be looking at.

The appellants submitted that the Aarhus Convention was relevant both as an aid to interpreting ECHR rights and as something to be taken into account by a judge in exercising a discretion in determining the appropriate sentence in a particular case. Additionally, the appellants submitted that the sentencing judges should have had regard to the views of the UN Special Rapporteur on Environmental Defenders (Aarhus blogs passim: here, here, here).

However, alas, the Court held that:

“In our judgment, it would not have been appropriate for the sentencing judges to have had regard to the Aarhus Convention or the views of the UN Special Rapporteur. The Aarhus Convention is not incorporated into English law. That is sufficient, in itself, to decide the point. However, we also agree with the Crown’s submission that article 3(8) of the Aarhus Convention did not apply to the appellants’ activities…

The appellants in these cases were penalised, but they were not penalised for “exercising their rights in conformity with the provisions of” the Aarhus Convention. They were penalised for committing criminal offences. It is, rightly, not suggested that their prosecution or conviction was contrary to the Aarhus Convention. Neither was their sentencing.”

“It would not have been appropriate… to have had regard to the Aarhus Convention” are fourteen words no reader of this blog would ever want to hear from anyone, let alone from senior judges.

It is unfortunate that the Court took a narrow view of “exercising their rights in conformity with the Convention.” The Aarhus Convention Compliance Committee has made clear that peaceful environmental protest is a legitimate exercise of the public’s right to participate in decision-making as recognized in article 1 of the Convention: see the Findings and recommendations with regard to communication ACCC/C/2014/102 concerning compliance by Belarus’, ECE/MP.PP/C.1/2017/19, para. 66.

Accordingly, such protests are a form of public participation that does, in principle, engage article 3(8).

However, in these circumstances, where – at least at the time of the appeal – the prosecution/ conviction weren’t challenged on an Aarhus basis, the Court proceeded on the basis that a custodial sentence following a lawful conviction was acceptable in principle and did not engage the Convention. But hopefully the door will remain open for future arguments: as we all know, there isn’t a single area of UK law that wouldn’t benefit from the application of the Aarhus Convention.

In the meantime- perhaps there is a new communication to the ACCC on the horizon?

Until next time!

This blog post was written by Alex Shattock.

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.