Smith & Ors: Sentencing Protest-Related Criminal Damage to Heritage Memorials and the Limits of Articles 10 and 11 ECHR

Smith & Ors: Sentencing Protest-Related Criminal Damage to Heritage Memorials and the Limits of Articles 10 and 11 ECHR

1. Introduction

In Smith & Ors, R v [2025] EWCA Crim 1623, the Court of Appeal (Criminal Division) considered applications for leave to appeal against sentence by five environmental and animal rights protesters convicted of criminal damage under section 1 of the Criminal Damage Act 1971. Their protest involved dyeing the fountains and marble of the Queen Victoria Memorial outside Buckingham Palace in red, to represent a “royal blood bath” linked to animal agriculture.

The decision is significant for several interlocking reasons:

  • It confirms that ordinary sentencing principles apply in protest cases, even when Articles 10 and 11 of the European Convention on Human Rights (ECHR) are engaged.
  • It clarifies how conscientious protest motives should be treated in assessing culpability and mitigation.
  • It gives strong guidance on harm and culpability assessment for criminal damage to heritage and memorial structures, particularly where permanent damage was foreseeable even if ultimately avoided.
  • It reinforces the growing judicial and legislative trend treating damage (or risk of damage) to memorials as a particularly serious form of protest-related offending.

The appeal was brought solely against sentence, not conviction. The applicants argued their sentences were manifestly excessive and disproportionately interfered with their rights to freedom of expression and peaceful assembly under Articles 10 and 11 ECHR. The Court rejected those arguments and refused all applications.

2. Factual and Procedural Background

2.1 The incident

The Queen Victoria Memorial (“the Memorial”) is a Grade I listed marble monument of substantial historical, cultural and symbolic significance, standing directly in front of Buckingham Palace (para 4). On 26 August 2021, during an Extinction Rebellion protest in central London, the five applicants – Claire Smith, Louis McKechnie, Riley Ings, Christopher Bennett and Rachel Steele – carried out a coordinated action focussed on animal rights (paras 1, 5–6).

Shortly before 2pm:

  • They entered the fountains surrounding the Memorial.
  • They poured red dye into the water from containers with prominent warnings that the liquid could stain stone surfaces and that dye, once in water, was effectively irrevocable (para 5).
  • They dispersed the dye through the fountain, some throwing dyed water at the marble and placing red handprints and smears directly on the stonework (para 6).
  • They held placards reading “Animal Agriculture A Royal Blood Bath” to dramatise the protest (para 6).

The dye penetrated the porous light-coloured marble. The fountains had to be drained and specialist cleaners engaged, requiring 64 hours of work and costing over £7,000 (para 8). Expert evidence indicated that, but for prompt cleaning, the staining of the marble would have been permanent (para 8).

2.2 Convictions and sentences at first instance

All five were convicted after trial at Southwark Crown Court of criminal damage contrary to the 1971 Act. The trial judge (HHJ Perrins) found that each either intended to cause damage or was reckless as to whether damage would result, rejecting the defence contention that this was not criminal damage (para 9).

On 18 October 2024, the judge imposed sentences as follows (para 2):

  • Claire Smith (26): 18 months’ imprisonment, suspended for 2 years, with 200 hours unpaid work, up to 20 days rehabilitation activity requirement (RAR), and £500 compensation.
  • Louis McKechnie (23): 18 months’ imprisonment, suspended for 2 years, with 200 hours unpaid work, up to 15 days RAR, and £500 compensation.
  • Riley Ings (27): 18 months’ imprisonment, suspended for 2 years, with 200 hours unpaid work, and £500 compensation.
  • Christopher Bennett (33): 18 months’ immediate imprisonment, to run concurrently with a separate sentence for conspiracy to cause public nuisance (tunnelling under a road).
  • Rachel Steele (48): 18 months’ imprisonment, suspended for 2 years, with 200 hours unpaid work, up to 20 days RAR, and £1,000 compensation.

The judge treated all five as “in it together” and equally responsible (para 10). He categorised their culpability as high (Category A) because of a high degree of planning, and harm as Category 1 on the basis of serious social impact (para 12). This yielded a guideline starting point of 18 months’ custody (Category 1A) with a range of 6 months to 4 years (para 12).

While accepting that the protest context was relevant, the judge emphasised that the right to protest “does not include a right to commit crime” (para 13). He found no genuine remorse and stressed the need for deterrence given “the sheer number of cases” involving serious crime committed in the name of protest (para 14).

Nevertheless, he suspended the custodial terms (except for Bennett, already serving a custodial sentence) after considering rehabilitation prospects, personal mitigation, impact on others, and the age of the offences (para 15).

2.3 The grounds of appeal

All five sought extensions of time and leave to appeal against sentence (para 3).

For Smith, McKechnie and Ings, counsel (Mr Animashaun) argued (para 16):

  1. The custody threshold had not been crossed; the judge was wrong to classify harm and culpability in the top category.
  2. The judge failed to give proper reduction for their conscientious objectives as protesters.
  3. The sentences amounted to a disproportionate interference with Articles 10 and 11 ECHR.

For Steele and Bennett, counsel (Ms Stockdale) adopted those submissions and added that the judge should have distinguished their roles from the others, because on the evidence they did not themselves apply dye to the marble stonework but were on the south side of the monument (paras 17, 32).

The Registrar referred the applications to the Full Court.

3. Summary of the Court of Appeal’s Decision

The Court of Appeal:

  • Refused all applications for extension of time and for leave to appeal against sentence (para 34).
  • Held that the sentencing judge was entitled to classify:
    • Culpability as high (Category A) because of substantial planning and coordination (paras 23–24).
    • Harm as Category 1 on the basis of serious social harm and the foreseeable risk of permanent damage to a nationally important memorial (paras 25–26).
  • Confirmed that a defendant’s conscientious protest motive:
    • Does not prevent a finding of high culpability (paras 20–21, 23).
    • May justify some overall moderation of sentence, but is of limited weight where the protest action is extreme or disproportionate (paras 20, 29–30).
  • Reaffirmed that Articles 10 and 11 ECHR were engaged, but:
    • Sentencing in protest cases must follow ordinary sentencing principles (paras 18–20).
    • Where protest involves criminal damage, the weight of the Convention rights is reduced in the proportionality analysis (para 28).
    • The suspended sentences (and concurrent sentence for Bennett) were a proportionate response and not a disproportionate interference with the rights to expression and assembly (paras 27–30).
  • Held there was no basis for distinguishing Steele and Bennett from the other applicants: they were engaged in a joint enterprise, lending mutual encouragement and support, and could properly be treated as equally responsible for the damage (paras 32–33).
  • Emphasised the special seriousness of criminal damage to memorials and heritage assets, referring both to:
    • Guideline aggravation where damage is to heritage or cultural assets (para 25).
    • Legislative reforms elevating criminal damage to memorials to an either-way offence with a 10-year maximum sentence (para 26).

In combination, these points mark the decision as an important re-affirmation and refinement of sentencing principles for protest-related criminal damage, especially where heritage and memorial structures are involved.

4. Detailed Analysis

4.1 The key legal questions

The appeal raised four central legal issues:

  1. How should culpability and harm be assessed in protest-related criminal damage to historic monuments?
  2. What is the role and weight of conscientious protest motives in sentencing?
  3. How do Articles 10 and 11 ECHR influence sentencing decisions in protest cases, and what is the test of proportionality?
  4. In a joint enterprise protest, when can co-defendants be treated as equally culpable, even if their personal physical acts were not identical?

The Court of Appeal addressed these questions by applying and consolidating an emerging line of authority on protest-related offending.

4.2 Precedents and Authorities Cited

4.2.1 The non-violent protest and sentencing line of authority

The Court explicitly situated this case in the broader jurisprudence on protest-related offending (para 18), particularly:

  • Attorney General’s Reference (No. 1 of 2022) [2023] KB 37 (CA):
    • Clarified that not all protest offences are properly described as “non-violent protest”.
    • Here, although the present case was treated as falling into the non-violent protest category (para 18), the Court emphasised that criminal damage can still be serious in such a context.
  • R v Trowland [2023] EWCA Crim 919; [2024] 1 WLR 1164:
    • A leading authority on sentencing climate protestors convicted of serious disruption offences (there, public nuisance).
    • The Court in Smith relied on Trowland for several propositions (paras 12–13, 18–20, 29):
      • Sentencing in protest cases must follow normal sentencing principles.
      • “The more disproportionate or extreme the action taken by the protester, the less obvious is the justification for reduced culpability and more lenient sentencing” (para 13, repeated at para 20).
      • Deterrence can legitimately feature more heavily when serious protest-related offending becomes frequent (para 14).
  • R v Hallam [2025] EWCA Crim 199:
    • Though not fully set out, this decision is said to confirm, at paras [7], [15] and [26], similar principles concerning:
      • Application of normal sentencing principles to protest cases.
      • The handling of conscientious motivation and Articles 10 and 11 ECHR.

These cases collectively form a coherent line: protest is not a separate sentencing category warranting bespoke rules; it is one contextual factor to be weighed alongside others.

4.2.2 Convention rights and protest: Jones, Roberts and Cuadrilla

The Court also drew on a set of authorities linking protest, criminal liability and Convention rights (para 18):

  • R v Jones (Margaret) [2006] UKHL 16; [2007] 1 AC 136:
    • A House of Lords decision concerning protestors against the Iraq war, often cited on the limits of protest defences.
    • It underpins the principle that while political protest is protected, it does not confer a licence to commit criminal offences.
  • R v Roberts [2018] EWCA Crim 2739:
    • Addressed sentencing for protest-related offences and the relevance of motives and proportionality.
    • Cited here in connection with the approach to proportionality and Articles 10 and 11.
  • Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9; [2020] 4 WLR 29:
    • A civil injunction case about anti-fracking protests.
    • The court there discussed how to strike a balance between protest rights and the rights of others, providing a Convention-compatible framework for assessing restrictions on protest.

Although these authorities arise in different contexts (criminal law, sentencing, civil injunctions), they are used here to support a common proposition: Articles 10 and 11 ECHR are important but qualified rights. They do not justify serious criminal conduct and do not prevent proportionate penal sanctions.

4.2.3 Statutory and guideline framework

The Court’s reasoning is firmly anchored in statute and Sentencing Council guidance:

  • Criminal Damage Act 1971, s.1: defines the offence.
  • Sentencing Council Guidelines for Criminal Damage:
    • Provide a matrix for assessing culpability (A, B, C) and harm (Categories 1–4).
    • Specify that damage to heritage and/or cultural assets is an aggravating factor (para 25).
    • Set a starting point of 18 months’ custody and a range of 6 months to 4 years for Category 1A cases (para 12).
  • Sentencing Act 2020, s.63:
    • Requires courts, when assessing seriousness, to have regard to:
      • the harm caused, and
      • any harm which the offence might foreseeably have caused (para 25).
    • This provision underpins the Court’s reliance on the foreseeable permanent damage to the Memorial, even though permanent damage was ultimately avoided.
  • Police, Crime, Sentencing and Courts Act (PCSC Act) – amendments to the Magistrates’ Courts Act 1980:
    • Section 50 (with s.208(5)(c)) inserted ss.22(11A)–(11D) into the 1980 Act, making criminal damage to a “memorial” an either-way offence with a maximum sentence of 10 years’ imprisonment, regardless of the monetary value of damage (para 26).
    • The Court emphasises this as a clear signal of Parliament’s view of the gravity of damaging memorials, though it does not directly apply to this pre‑amendment case (para 26 & fn 2).
  • Overarching Guidelines on Imposition of Community and Custodial Sentences:
    • Informed the judge’s decision that the custody threshold was passed and that suspended sentences were appropriate in light of rehabilitation prospects and delay (paras 12, 15).

4.3 The Court’s Legal Reasoning

4.3.1 High culpability: planning, intention and protest motivation

The applicants argued that their culpability was overstated: there was “no significant planning” and the protest’s conscientious motivation should reduce culpability. The Court firmly rejected that analysis.

At paras 23–24, the Court endorsed the judge’s categorisation of culpability as Category A (high) on the basis of:

  • Planning and preparation:
    • Decision to use dye taken well in advance.
    • Research into the dye, its procurement in sufficient quantity to stain the entire fountain.
    • Use of encrypted messaging app “Signal” to coordinate logistics.
    • Pre‑arranged timing to maximise impact – a summer’s day with many tourists (paras 4, 12, 24).
    • Preparation of placards and ensuring adequate numbers and a photographer were present to amplify publicity on social media (para 24).
  • Knowledge of risk:
    • Clear warnings on the dye containers that contact with stone could stain and that dye once added to water was effectively irreversible (para 5).
    • At least one protester admitted reading those labels (para 5).
  • Shared intent or recklessness:
    • The jury’s verdict necessarily involved a finding that each applicant either intended to cause damage or was reckless as to whether damage would be caused to the Memorial (para 9).

Critically, the Court reiterates at paras 20–21 and 23 that conscientious motivation does not preclude a finding of high culpability. The applicants may have been sincere and non-violent, but:

  • Their deliberate choice of a highly symbolic national monument increased the gravity of the wrongdoing (paras 12, 25).
  • The method chosen was knowingly risky, with a real prospect of permanent disfigurement of a historic structure (paras 8, 25).

The Court therefore confirms and sharpens the principle drawn from Trowland:

“The more disproportionate or extreme the action taken by the protester, the less obvious is the justification for reduced culpability and more lenient sentencing.” (paras 13, 20, 29)

In practical terms, this means:

  • Peaceful motive is not a shield against high culpability classifications.
  • Where deliberate damage (or serious risk of damage) to heritage assets is chosen as a tactic, protestors can expect to be placed at the upper end of culpability bands.

4.3.2 Harm: foreseeable permanent damage and heritage status

On harm, the Court endorsed the judge’s classification of Category 1 harm based on serious social impact (para 25). The reasoning proceeds on several interlinked elements:

  1. Foreseeable permanent damage:
    • Under s.63 Sentencing Act 2020, courts must consider not only the harm actually caused but also the harm that was foreseeably likely (para 25).
    • Evidence showed that, without prompt intervention, the marble would have been permanently stained (para 8).
    • Given the warnings on the dye labels and the properties of porous marble, permanent damage was plainly foreseeable (paras 5, 8, 25).
  2. Nature of the asset:
    • The Memorial is a Grade I listed monument, of “particular significance and historic importance” (para 4).
    • Damage (or risk of damage) to such an asset cannot be measured solely in economic terms; it affects the national heritage and cultural identity (para 25).
    • The Sentencing Guidelines expressly treat damage to heritage and cultural assets as an aggravating factor (para 25).
  3. Symbolic and social impact:
    • The action targeted a visually prominent national monument “directly in front of Buckingham Palace, on a summer’s day, when hundreds of tourists were present” (para 12).
    • This amplified the public impact and potential social harm, justifying Category 1 harm classification (para 12).
  4. Legislative signal: damage to memorials:
    • Although the new 10‑year maximum for criminal damage to memorials did not apply to offences pre‑June 2022 and where damage exceeded £5,000 (fn 2), the Court nevertheless highlighted it as evidence that the law attaches particular importance to such offending (para 26).
    • This legislative context underscores the Court’s view that harm to memorials—especially by protesters—is properly treated as serious.

The Court explicitly rejects the suggestion that the absence of permanent damage or the fact that the cost of repair was finite (£7,000+) should moderate the harm category (para 25). For protestors and practitioners, the key message is this:

“Causing (or acting in a way that might foreseeably cause) permanent damage to nationally important and historic monuments is a serious feature of this type of offending that is capable, depending on the circumstances, of putting it into the highest category of harm.” (para 25)

4.3.3 Conscientious motivation, Articles 10 and 11, and proportionality

The applicants contended that:

  • Their conscientious objectives should have materially reduced sentence.
  • The sentences represented a disproportionate interference with their rights to freedom of expression and assembly under Articles 10 and 11 ECHR.

The Court’s response develops the principles articulated in Trowland, Hallam and earlier authorities.

(a) Conscientious motivation as a sentencing factor

At paras 20–21, the Court explains:

  • The common law and the Convention are “in step”. If ordinary sentencing principles are applied properly, Convention rights should be respected (para 20).
  • Conscientious motivation:
    • “may be a relevant consideration”, especially where offenders are otherwise law‑abiding (para 20).
    • May justify a lesser sanction, particularly where there is a realistic prospect that a measured sentence will:
      • deter further law‑breaking, and
      • help offenders understand their duty as responsible citizens to obey the law (para 20).
  • The more disproportionate or extreme the protest action, the less justificationTrowland).
  • Crucially: conscientious motivation is logically relevant to culpability

The Court thus clarifies an important doctrinal point: while many judges have treated good motive simply as “mitigation”, Smith states that it properly goes to the assessment of culpability, i.e. how blameworthy the conduct is in light of motive and moral context. However, so long as the final sentence fairly reflects all relevant factors, it is immaterial whether the judge formally labels the consideration as “culpability-related” or “mitigation-related” (para 21).

(b) Articles 10 and 11: engagement and weight

The Court accepts that Articles 10 and 11 were engaged at the sentencing stage (para 28). However, it emphatically rejects the idea that this converts sentencing into a distinct, rights-driven exercise:

  • Sentencing in protest cases must still proceed according to ordinary sentencing principles (para 19).
  • Sentencing “should not be over complicated” merely because Articles 10 and/or 11 are engaged (para 20).

At para 28 the Court draws a crucial distinction:

“There are in a democratic society many means of protest and opportunities for freedom of expression which do not involve the commission of criminal offences. The fact that the applicants' expression of opinion involved criminal damage accordingly weakened the protections afforded by articles 10 and 11, and so the weight to be attached to those protections when considering the proportionality of the sentences passed.”

So, although the rights are engaged, they carry less weight in circumstances where the chosen method of expression is itself criminal, particularly where (as here) it risks permanent damage to key public monuments.

The Court further notes:

  • The applicants had argued at trial that their actions were a proportionate exercise of Articles 10 and 11, a contention the jury rejected (para 30).
  • The judge was entitled to reject that characterisation at sentencing as well (para 30).
  • Nevertheless, the Court recognises that the judge did, in fact, take their motivations into account:
    • He acknowledged the protest context (paras 13, 29).
    • He suspended their custodial sentences (or, for Bennett, made the term concurrent) in part because of delay, rehabilitation and the nature of their motivations (paras 15, 30).

The Court concludes that the suspended sentences were a proportionate interference with Articles 10 and 11:

  • If the applicants committed no further offences, they would face no further penalty (para 30).

In terms of precedent, this consolidates a clear position:

  • Articles 10 and 11 do not immunise protesters from custodial sentences, even suspended ones, where the conduct involves serious criminal damage or risk.
  • Rights are recognised at the level of justifying some tempering of sanction, not at the level of negating or radically lowering sentence bands set by guideline seriousness.

4.3.4 Joint enterprise and equal culpability

On behalf of Steele and Bennett, it was argued that their roles were more limited because they did not themselves apply dyed water to the marble stonework, being positioned on the south side of the fountain (para 32).

At paras 32–33, the Court rejects this contention, affirming that:

  • The case was properly prosecuted as a joint enterprise:
    • All five intended to enter the fountain and participate in applying dye to the water and stonework.
    • Each lent “encouragement and support” to the others (para 33).
    • They had collectively planned, timed, equipped and executed the action (paras 24, 33).
  • Where a protest operation is jointly conceived and undertaken, and each participant contributes to its execution and publicity, the sentencing judge is entitled to treat them as equally responsible, absent cogent evidence of materially different levels of participation or knowledge.

This reinforces a practical warning:

  • In coordinated protest actions, those who “only” attend, assist or provide presence and support should not assume that they will be treated as less culpable if serious criminal damage is caused or risked.
  • Joint planning, mutual encouragement, and physical presence at the scene can suffice for equal treatment in sentencing.

4.4 The Sentencing Exercise as a Whole

The Court’s closing remarks at paras 29–31 emphasise a holistic, guideline-compliant sentencing approach:

  • The case fell into **Category 1A** (high culpability, highest harm) under the Criminal Damage Guidelines (paras 12, 31).
  • Given that categorisation, the custody threshold was “plainly passed” (para 31).
  • Conscientious objectives and Articles 10/11 were taken into account, but:
    • They did not justify re-categorisation of culpability or harm.
    • They influenced primarily the decision to suspend the sentences (paras 29–30).
  • There was no need for the judge to:
    • Specify a precise reduction in sentence attributable to conscientious motivation (paras 19–20).
    • Conduct a separate, freestanding human‑rights calculus beyond applying the usual sentencing methodology (paras 19–20, 27–30).

The appeal court found no error of principle and no manifest excessiveness in the sentences imposed.

5. Impact and Future Significance

5.1 Protest-related criminal damage to heritage and memorials

Smith & Ors is especially important for protest actions targeting monuments, memorials, and heritage assets. The Court’s reasoning, combined with the PCSC Act reforms, signals:

  • High sentencing seriousness for such offences, even when:
    • Protest is non-violent in the physical sense.
    • The monetary value of damage is modest relative to other crimes.
    • Permanent damage is ultimately avoided through rapid remedial work.
  • Foreseeable risk of permanent damage to heritage assets will often justify:
    • Category 1 harm, and
    • Custodial sentences at or above the 18‑month starting point.
  • The status of the asset (Grade I listing, national memorial, central location) is highly significant in assessing harm and social impact.

Future protesters contemplating similar tactics—especially those involving dyes, paints, or substances that may mark stone or statues—should expect the courts to treat their conduct as serious criminal offending, even where they have no prior convictions and morally-driven motives.

5.2 Clarifying the role of conscientious motives and ECHR rights

The decision also has broader implications for all protest sentencing:

  • Conscientious motives:
    • Are relevant at the level of culpability and may justify some mitigation.
    • But attract diminishing weight as the protest action becomes more extreme or harmful.
    • Cannot, by themselves, reclassify a clearly high-culpability case downward.
  • Articles 10 and 11:
    • Remain important but are not trump cards against penalty.
    • Their weight is weakened when the method of expression is inherently criminal, particularly when it harms or risks harm to others’ rights and public assets.
    • Courts are not required to undertake a separate, elaborate rights-balancing exercise if they apply established sentencing principles compatibly with the Convention.

This reinforces a direction of travel in recent case law: the courts will protect space for lawful protest, but they will also:

  • Impose serious sanctions where protest crosses into serious crime.
  • Use sentencing (including deterrent sentences) to discourage escalation of unlawful protest tactics.

5.3 Practical guidance for courts and advocates

For judges and advocates, Smith & Ors offers several practical signposts:

  • In protest cases, start with the usual guideline analysis of culpability and harm; do not begin from Articles 10/11 and work backwards.
  • Consider conscientious motive primarily as part of culpability:
    • Is the offender otherwise law‑abiding?
    • Is there a realistic prospect of rehabilitation and future law‑abiding behaviour?
    • Is the method chosen proportionate or extreme?
  • Where the asset is a memorial or heritage site, consider:
    • Listing status and national/cultural significance.
    • Foreseeable risk of permanent or long-term harm.
    • Public visibility and social impact of the damage.
  • Where protests are coordinated:
    • Joint enterprise principles may justify treating all participants as equally culpable, even if their physical acts differ slightly.

6. Complex Concepts Simplified

The judgment uses several technical sentencing and legal concepts. The following brief explanations may assist non‑specialist readers.

Criminal damage
Under s.1 Criminal Damage Act 1971, a person commits an offence if, without lawful excuse, they destroy or damage property belonging to another, intending to or being reckless as to whether such damage is caused.
Grade I listed monument
A building or structure of “exceptional interest” under planning law, given the highest level of legal protection because of its historical or architectural significance.
Culpability (Category A/B/C)
In Sentencing Council guidelines, culpability measures how blameworthy the offender’s behaviour was. Category A (high) involves factors such as high degree of planning, leading role, or deliberate targeting; Category B is medium; Category C is lesser culpability.
Harm (Category 1–4)
Harm categories assess the seriousness of consequences of the offence (or foreseeable consequences). Category 1 is the most serious, including high-value damage, serious social impact, or significant harm to important assets.
Category 1A offending
A combination of Category A culpability and Category 1 harm. It is typically the most serious guideline category, attracting the highest starting points and ranges.
Custody threshold
The point at which an offence is so serious that only a sentence of imprisonment is justified, in accordance with the Sentencing Act 2020 and the Overarching Guidelines. Once crossed, the court must decide whether to impose immediate custody or whether custody can be suspended.
Suspended sentence of imprisonment
A custodial sentence which the offender does not immediately serve in prison, provided they do not commit further offences and comply with conditions during the “operational period” (here, two years). If they breach, the court may activate the custodial term.
Operational period
The period during which a suspended sentence hangs over the offender. Any further offending during this time can trigger activation of the sentence.
Joint enterprise
A doctrine under which multiple people who participate in a criminal venture together, sharing intent or lending encouragement and support, can all be held criminally liable for the resulting offence, even if their individual acts differ.
Either-way offence
An offence that can be tried either in the Magistrates’ Court or in the Crown Court, depending on seriousness and other factors. The PCSC Act reforms made criminal damage to memorials an either-way offence regardless of the value of the damage.
Manifestly excessive sentence
On appeal, the Court of Appeal will not interfere with sentence unless it is “wrong in principle” or “manifestly excessive” – that is, so high that it falls outside the range of permissible sentencing discretion.
Articles 10 and 11 ECHR
Article 10 protects freedom of expression (including the right to hold and express views). Article 11 protects freedom of peaceful assembly and association. Both rights are qualified, meaning they may be restricted where necessary in a democratic society for legitimate aims (e.g. prevention of crime, protection of rights of others).
Serious social impact
A guideline concept recognising that an offence can cause harm beyond monetary damage – for example, undermining public confidence, offending public sensibilities, or damaging important social values represented by monuments or institutions.

7. Conclusion

Smith & Ors, R v [2025] EWCA Crim 1623 is a significant addition to the developing jurisprudence on protest-related offending. While the case did not re-write fundamental principles, it performed an important consolidating and refining role in three main respects:

  1. Sentencing of protest-related criminal damage to heritage and memorials:
    • Deliberate or reckless damage to nationally important monuments, or conduct that foreseeably risks permanent harm, will often attract Category 1 harm and high culpability.
    • The courts will not confine their assessment of harm to repair costs; heritage, symbolism and social impact feature heavily.
  2. Conscientious protest motives and Articles 10/11:
    • Good motives and peaceful aims are recognised but do not prevent serious sentencing outcomes when methods are extreme or harmful.
    • Articles 10 and 11 ECHR are engaged but carry diminished weight where protestors choose to commit serious criminal damage.
    • Ordinary sentencing principles suffice to secure Convention compatibility; a separate human-rights-based calculation is not required.
  3. Joint enterprise and equality of culpability among protestors:
    • Those who join a coordinated protest action involving criminal damage cannot escape equal sentencing responsibility merely because their individual physical acts were less visible or did not, by themselves, cause the damage.
    • Planning, presence, mutual encouragement, and shared objectives are sufficient to justify equal treatment.

In the broader legal context, the decision aligns with legislative and judicial trends responding to an upsurge in disruptive and damaging protest tactics. It underscores that while democratic societies must protect robust protest and debate, those protections do not extend to serious criminal damage to shared cultural heritage. Suspended custodial sentences – as deployed here – emerge as a preferred tool for balancing deterrence, denunciation and respect for underlying conscience, without foreclosing future rehabilitation.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Criminal Division)

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