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Alex Goodman KC of Landmark Chambers leading Jessica Jones of Matrix Chambers acted for Friends of the Earth and Greenpeace in an intervention in the Court of Appeal concerned with lengthy sentences for five members of Just Stop Oil convicted of conspiracy to commit a public nuisance by planning a protest involving blocking the M25.
The court considered that the sentences imposed by HHJ Hehir were manifestly excessive and failed to take account of the conscientious motives of the protesters. The Court reduced the sentences of each of the protesters in whose case Friends of the Earth and Greenpeace intervened (from four years to 2.5 years (2 cases), from 4 years to 3 years (2 cases) and from 5 years to 4 years in one case). The judgment provides an important corrective to the approach of the Crown Court in relation to the continued relevance of common law and ECHR rights to protest and peaceful assembly in the sentencing exercise, even where trespass was involved.
The five appeals against sentence were linked to the appeals of 11 other Defendants who had been sentenced respectively for blocking the M25, criminal damage to the frame of Van Gogh’s Sunflowers, and for tunnelling under access roads to the Navigator oil terminal.
Common law- conscientious motivation
At paragraph 26 of the judgment, the Court held that “The appellants’ conscientious motivation was a factor relevant to sentencing in each case. It would have been an error for the sentencing judge to conclude on the facts that it had not part whatsoever to play in the sentencing exercise”.
In respect of the Hallam sentencing exercise, the Court, supporting the submissions of Friends of the Earth and Greenpeace held at para. 81 that HHJ Hehir had erred in ignoring the conscientious motivations of the Appellants when sentencing them: “we read the judge’s sentencing remarks as meaning that he took no account at all of the appellants’ conscientious motivation. Whilst he was right that conscientious motivation is not a matter of mitigation, it is a factor which may reduce culpability.
Articles 10 and 11 ECHR
The Court also agreed with the submissions of Friends of the Earth and Greenpeace that the Appellants’ trespass (or planned trespass) did not take them outside the scope of the right to protest and to peaceful assembly in articles 10 and 11 ECHR, At paragraph 28, the Court held that:
“the appellants’ message in these cases constituted “political speech”, to which particular respect is afforded: it involved a call for a change in the law. There were ways in which the appellants could have communicated that message without trespassing and without committing a criminal offence. But the fact that they committed a trespass and a criminal offence in communicating that message did not mean that their activity ceased to be an expression of their views.”
The Court noted at paragraph 34 that “we were not referred to any case in which the ECtHR has decided that a protestor who commits an act of trespass thereby automatically loses their rights under Article 10 or 11 altogether” and concludes at para. 36 that “Although the appellants’ activities were not at the core of Articles 10 and 11, we do not consider that their acts of trespass removed them completely from the scope of Articles 10 and 11. Rather… the fact that the appellants’ expressions of opinion involved criminal trespass significantly weakened the protections afforded by Articles 10 and 11 (and so the weight to be attached to those protections when considering proportionality of sentence)”.
The judgment is an important corrective to the approach seen in Crown Courts following DPP v Cuciurean [2022] EWHC 736 (Admin); (which has wrongly been interpreted as removing ECHR protections from anyone committing an act of trespass). This judgment now makes clear that protest activity, even if committed in a place to which the public does not have lawful access, is still within the ambit of Arts 10 and 11 (albeit that the protection offered may be weakened by the circumstances of the offending). That will be significant for future protest defendants.
Commenting on the sentencing of Hallam and Others, at para. 82, the Court observes (in line with the submissions of the interveners) that “The judge did not consider, at the sentencing stage, the effect of Articles 10 and 11. As previously explained, we consider that these articles were engaged in the M25 Conspiracy case. When ECHR rights are engaged, the proportionality question must always be asked”.
The Court of Appeal also overturned the Crown Court judge’s finding that Arts 10 and 11 were not engaged in the Sunflowers case. At para. 38, the Court clarifies that extent of damage is not a basis on which ECHR protections cease to apply, and at para. 41 it confirms that throwing paint at a painting is “shocking” but “not violent”.
Press coverage can be found here or here.
A copy of the judgment may be accessed here.
