Introduction

The case of Trowland & Anor v R ([2023] EWCA Crim 919) marks a significant precedent in the realm of non-violent protest law in England and Wales. The defendants, Mr. Morgan Trowland and Mr. Marcus Decker, engaged in a high-profile protest by scaling the Queen Elizabeth II bridge on the M25, hoisting a "Just Stop Oil" banner, and causing the bridge to remain closed for approximately 40 hours. Both individuals were repeat offenders, already on bail for previous protest-related offenses at the time of the incident. The crux of the legal battle centered on the severity of their sentences for intentionally causing a public nuisance under Section 78(1) of the Police, Crime, Sentencing and Courts Act 2022, and whether these penalties constituted a disproportionate interference with their rights under Articles 10 and 11 of the European Convention on Human Rights (ECHR).

Summary of the Judgment

On July 31, 2023, the England and Wales Court of Appeal (Criminal Division) delivered its judgment in the matter of Trowland & Anor v R. Both Mr. Trowland and Mr. Decker were convicted of intentionally causing a public nuisance, resulting in significant disruption to public traffic and economic activities. The original sentencing, handed down by HHJ Collery KC, imposed three years' imprisonment on Mr. Trowland and two years and seven months on Mr. Decker. The Court of Appeal granted leave to appeal but ultimately dismissed the protesters' appeals, upholding the original sentences as neither manifestly excessive nor disproportionate. The judgment emphasized the seriousness of the offenses, the defendants' repeat offending history, and the substantial public and economic disruption caused by their actions.

Analysis

Precedents Cited

The Court of Appeal extensively referenced both domestic and European precedents to substantiate its decision. Key cases included:

• R v Richard Roberts and Others [2018] EWCA Crim 2739; addressed the sentencing of protestors causing public nuisance.
• R v James Hugh Brown [2022] EWCA Crim 6; dealt with similar protest-related offenses and their sentencing.
• Kudreivcius v Lithuania (App No 37553/05) [2016] 62 EHRR 34; a European Court of Human Rights case highlighting the balance between protest rights and public order.
• Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9; discussed the importance of detainee rehabilitation over purely punitive measures.

These precedents collectively underscored the judiciary's stance on maintaining a balance between upholding protest rights and ensuring public safety and order. The Court of Appeal emphasized that while the right to protest is fundamental, it does not equate to unlimited freedom, especially when actions lead to substantial public disruption.

Legal Reasoning

The Court of Appeal delved deep into the statutory framework established by Section 78 of the Police, Crime, Sentencing and Courts Act 2022, which criminalizes intentional or reckless actions causing public nuisance without requiring the fault element that common law previously necessitated. The judges analyzed the defendants' actions against the criteria set out in the statute, particularly focusing on the intentional obstruction of public rights and the resulting severe inconvenience and economic detriment.

A pivotal element of the court's reasoning was the defendants' repeat offending behavior, aggravating the severity of their current actions. The judge noted that both individuals were on bail for previous protest-related charges, demonstrating a pattern of disregard for legal boundaries. Furthermore, the extensive planning and deliberate choice of a high-profile location to maximize disruption and media attention played a significant role in justifying the custodial sentences.

The court also meticulously evaluated the ECHR rights invoked by the defendants, balancing Article 10 (freedom of expression) and Article 11 (freedom of assembly) against the state's legitimate interest in maintaining public order and safety. The judgment clarified that while these rights are fundamental, they are not absolute and can be lawfully restricted when necessary to protect other societal interests.

Impact

This landmark judgment has several far-reaching implications:

• Sentencing Precedent: The dismissal of the appeals solidifies the judiciary's willingness to impose stringent penalties on repeat non-violent protestors who cause significant public disruption.
• Legislative Clarity: The decision reinforces the intended toughness of Section 78, signaling Parliament's commitment to curbing extensive non-violent protests that impede public infrastructure and economic activities.
• Balancing Rights and Order: It offers a nuanced approach to balancing constitutional rights with public order, providing clearer guidelines for future cases involving protest-related offenses.
• Deterrence: The upheld sentences serve as a deterrent to potential repeat offenders, emphasizing that continued disregard for legal boundaries in protests will result in significant consequences.

Future cases can anticipate that the courts will uphold the balance between protest rights and public order, especially in instances of repeat offending and substantial disruption.

Complex Concepts Simplified

Public Nuisance under Section 78

Public Nuisance: A legal term referring to actions that significantly interfere with the rights of the public. Under Section 78 of the Police, Crime, Sentencing and Courts Act 2022, it specifically criminalizes intentional or reckless conduct that obstructs public rights or causes serious inconvenience.

Articles 10 and 11 of the ECHR

Article 10: Protects the right to freedom of expression, including the freedom to hold opinions and receive and impart information and ideas without interference by public authority.

Article 11: Protects the right to freedom of assembly and association, ensuring individuals can gather peacefully for communal or political purposes.

Custodial Sentences

Custodial Sentence: A punishment that involves the offender being detained in prison or another form of custody as a part of their sentence.

Manifestly Excessive

Manifestly Excessive: Refers to a sentence that is so disproportionate to the offense that it overshoots the boundaries of fairness and justice, often violating human rights.

Conclusion

The Court of Appeal's decision in Trowland & Anor v R serves as a pivotal reference point in the adjudication of non-violent protest-related offenses. By upholding substantial custodial sentences for repeat offenders who deliberately cause extensive public disruption, the judiciary reaffirms the state's authority to maintain public order while respecting constitutional protest rights. This judgment emphasizes that while freedom of expression and assembly are paramount, they carry implicit responsibilities and are subject to reasonable limitations to safeguard the broader public interest. Moving forward, activists and protest organizers must carefully consider the potential legal ramifications of their actions, particularly in environments where stringent laws like Section 78 are in effect.

Moreover, this case highlights the evolving legal landscape surrounding civil disobedience, wherein statutory provisions are increasingly shaping the boundaries of lawful protest. As societies continue to navigate the delicate balance between activism and public order, Trowland & Anor v R will undoubtedly influence both legislative reforms and judicial interpretations in future protest-related legal disputes.