Prologue
In R v Jones [2007] 1 AC 136 (HL), Lord Hoffmann explained the roles of parties in relation to the acts of civil disobedience. In that regards, His Lordship said:
- My Lords, 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. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account. The conditional discharges ordered by the magistrates in the cases which came before them exemplifies their sensitivity to these conventions.
Who guards the guards regarding proportionality on the parts of the protestors, the law-enforcers and the sentencers?
R v Trenton Oldfield (19 October 2012)
Mr Trenton Oldfield swan into the River Thames during the University Boat Race. The boat race restarted 25 minutes later. He testified that the event was an elitist race supported by an elite society. He disruptted the race to draw attention to inequality. The prosecution accepted that he is a man with a social conscience.
He was convicted of Public Nuisance after trial. HH Judge Anne Molyneux sentenced him to 6 months’ imprisonment.
Richard Roberts, Simon Blevins, Richard Loizou v R and 2 intervners [2018] EWCA Crim 2739 (6 December 2018)
Simon Blevins, Richard Roberts and Rich Loizou were jailed at the Preston Crown Court after being found guilty of public nuisance over a protest at the Cuadrilla’s fracking site in Lancashire. Mr Blevins and Mr Roberts were sentenced to 16 months’ imprisonment; Mr Loizou was sentenced to 15 months’ imprisonment.
They sat on top of the cabs of lorries for between two and half and three and a half days. Consequently, one carriageway of the road was blocked. Substantial disruption was caused to thousands of people.
Lord Burnett of Maldon CJ delivered the English Court of Appeal decision:
- … We concluded that an immediate custodial sentence in the case of these appellants was manifestly excessive. In our judgment the sentence which should have been imposed on 26 September was a community order with a significant requirement for unpaid work. However, by the time of the hearing, the appellants had been in custody for three weeks meaning that they had served a sentence equivalent to six weeks. As a result, and only in consequence of that, we concluded that the appropriate sentence was a conditional discharge for two years. A conditional discharge leaves the appellants vulnerable to being resentenced if they offend in any way within the period of two years.
- The judge noted that each of these appellants was of good character (or effective good character) and referred to the many letters of support setting out the positive nature of that good character, that is beyond the mere fact of absence of previous convictions. His conclusion that the custody threshold was passed, and that he could not suspend the sentences, rested upon three features. First, the widespread harm caused to many people as a result of the extended length of the protest. Secondly, his evaluation that these appellants were culpable because they persevered in their protest despite it being obvious that the impact was severe. Thirdly, that they were unrepentant and adhered to their underlying views and convictions.
- Custody is only appropriate if the court considers that the offence (alone or in combinations with one or more other offences) is so serious that neither a fine nor a community sentence can be justified; … That judgement must be made in the light of all the circumstances. In our view, having regard to the good character of these appellants and the underlying motivation for their criminal behaviour, even taking into account the widespread disruption for which they were responsible, the custody threshold was not crossed. …
- But we respectfully part company with the judge’s unqualified view that these appellants will offend again. Time, of course, will tell.
- … However, to the extent that it is necessary for the purposes of sentencing to make a judgment about the risks of future offending, underlying motivations can be of great significance.
- The appellants expressed regret for what they had done and two of them recognised that their actions, that is to say the extended duration of the protest with its widespread impact, were (we paraphrase) unreasonable and irresponsible. It was on that basis that they asked to be sentenced. …
- When these sentiments are added to the features already referred to, we are reinforced in our view that a custodial sentence was not called for in these cases. A community sentence, with a punitive element involving work (or perhaps a curfew) would have met the justice of the cases. As has often been remarked, a community sentence is a serious penalty. Moreover, if the terms of a community sentence are not complied with, the offender may be re-sentenced. No complaint could be made about that; and if the original sentence was appropriate there could be no legitimate complaint if noncompliance led to a custodial sentence. The same would be true were a suspended sentence appropriately imposed, a further offence committed, and the sentence then activated.
- A person with strongly held beliefs remains free to manifest them when subject to such an order of the court. There are many ways in which peaceful protest can be achieved without breaking the law.
- Despite our conclusion that a community sentence was the appropriate disposal in these cases, by the time the appeals came on for hearing, these appellants had spent three weeks in custody, the equivalent of serving a sentence of six weeks. In those circumstances, we concluded that it would not be appropriate now to impose a community order with a punitive element. The time in custody represented adequate punishment. The conditional discharge that we imposed introduced no additional active element of punishment but does provide some protection to the public against repeat offending.