Factual and Procedural Background
On 22 August 2018, in the Crown Court at Preston before Judge Altham, the appellants were convicted of public nuisance under common law. Their convictions arose from their protest against the Oil and Gas Authority's authorisation granted to Company A to begin hydraulic fracturing (fracking) at a site near The City. The appellants sat atop lorry cabs for between two and a half and three and a half days, blocking one carriageway of a major road and causing substantial disruption to thousands of people.
On 26 September 2018, the appellants were sentenced to immediate imprisonment terms of 15 to 16 months. The appellants applied for leave to appeal against their sentences, which was expedited and heard on 17 October 2018. The court granted leave, allowed the appeals, and concluded that immediate custodial sentences were manifestly excessive. It determined that a community order with unpaid work would have been appropriate initially. Given that the appellants had already served three weeks in custody, the court imposed a two-year conditional discharge instead.
Legal Issues Presented
- Whether an immediate custodial sentence is appropriate for non-violent crimes committed as part of peaceful protest, considering domestic law and Article 10 of the European Convention on Human Rights (ECHR).
- Whether, if custody threshold is met, a suspended sentence should be imposed instead of immediate imprisonment, particularly considering the appellants' motivations and suitability for rehabilitation.
- Whether the sentence was manifestly excessive due to the extent of disruption being largely caused by concurrent actions of others.
- Whether information obtained post-sentencing raised an appearance of bias on the part of the sentencing judge.
Arguments of the Parties
Appellants' Arguments
- Immediate custodial sentences should never be imposed for non-violent protest-related offences as a matter of domestic law and would breach Article 10 ECHR.
- If custody was warranted, the sentences should have been suspended rather than immediate imprisonment, especially given the appellants' sincere beliefs and unsuitability for rehabilitation.
- The sentence was excessive because much of the disruption was due to the actions of others coinciding with the appellants' protest.
- Post-sentencing information suggested potential bias by the judge, raising questions about the impartiality of the sentencing.
Respondent's Arguments
The opinion does not contain a detailed account of the respondent's legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Rimmington [2006] 1 AC 459 |
Definition and boundaries of the common law offence of public nuisance. |
The court adopted the definition confirming that public nuisance involves acts not warranted by law causing obstruction or endangerment to the public. |
| Porter v Magill [2002] 2 AC 359 |
Test for apparent bias in judicial proceedings. |
The court applied the fair-minded and informed observer test to assess the appearance of bias in the sentencing judge. |
| Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 |
Consideration of a judge's knowledge of facts relevant to recusal for bias. |
The court noted that if the judge was unaware of the alleged biasing factors, no real danger of bias arises. |
| R v Jones (Margaret) [2007] 1 AC 161 |
Recognition of civil disobedience and its limits in sentencing; consideration of conscientious motives. |
Referenced to explain the honourable history of civil disobedience and its effect on sentencing, emphasizing a balance of harm, culpability, and motivation. |
| Hutchinson v Newbury Magistrates' Court (2000) 122 ILR 499 |
Limits on legal justification for protest-related criminal acts. |
Used to support the principle that criminal self-help in protest is generally unreasonable and not legally justified. |
| Mayor of London (On behalf of the GLA) v Hall [2011] 1 WLR 504 |
Recognition that direct action protests fall within the scope of Articles 10 and 11 ECHR. |
Supported the view that peaceful protest is protected but subject to lawful limitations. |
| Mayor, Commonalty and Citizens of London v Samede [2012] 2 All ER 1039 |
Further confirmation of peaceful protest within Articles 10 and 11 ECHR. |
Reinforced the principle of lawful limits on protest activities. |
| Taranenko v Russia (App. No. 19554/05) |
Proportionality of sentences for crimes committed during peaceful protest under ECHR. |
The court considered whether custodial sentences were proportionate for non-violent protest-related offences, emphasizing caution in imposing immediate custody. |
| R v Jones (Annwen) [2006] EWCA Crim 2942 |
Fact-specific sentencing in protest cases with disruption and inconvenience. |
Illustrated the sensitive, fact-specific nature of sentencing in civil disobedience cases, with community orders preferred for lesser disruptions. |
| Hubbard v Pitt [1976] 1 QB 142 |
Common law recognition of the value of free speech and protest. |
Referenced to underline the importance of freedom of expression in a free society. |
| Bonnard v Perryman [1891] 2 Ch 269 |
Protection of free speech and expression against suppression. |
Used to support the principle that free speech includes unpopular or dissenting views. |
| McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277 |
Importance of free speech in the common law tradition. |
Referenced to emphasize the foundational role of free speech in a democratic society. |
| R v Shayler [2003] 1 AC 247 |
Article 10 ECHR and freedom of expression. |
Supported the principle that freedom of expression is a qualified right subject to lawful restrictions. |
| Redmond-Blake v DPP [2000] HRLR |
Freedom of expression and lawful limitations. |
Referenced regarding the qualified nature of free speech rights under the ECHR. |
Court's Reasoning and Analysis
The court began by reaffirming the serious nature of the common law offence of public nuisance, defined as unlawful acts or omissions that obstruct or endanger the public. The appellants' occupation of lorries, resulting in prolonged blockage of a major road and significant disruption, qualified as such an offence. The court considered the appellants' grounds of appeal, particularly the contention that immediate custody is inappropriate for peaceful protest and that the sentence was excessive.
The court rejected any suggestion of actual bias by the sentencing judge. Applying the established test for apparent bias, it found the connections relied upon by the appellants tenuous and insufficient to raise a real possibility of bias.
In analysing the sentencing, the court acknowledged the appellants' good character and sincere motivations. It recognized the importance of freedom of expression and assembly under Articles 10 and 11 of the ECHR, and the traditional respect for conscientious civil disobedience. However, it emphasized that such protest does not justify criminal acts causing serious public nuisance.
The court referred extensively to the principles articulated in R v Jones (Margaret), highlighting the balance between respecting protest and enforcing the law. It noted that while custodial sentences for peaceful protest are rare, they are not precluded where the offence crosses the custody threshold due to harm and culpability.
Considering the facts, the court found that although the appellants' conduct was culpable and caused widespread disruption, the custody threshold was not crossed given their good character and motivations. The judge's conclusion that immediate imprisonment was unavoidable was respectfully disagreed with. The court found that a community sentence with a punitive element would have been appropriate initially.
Because the appellants had already served three weeks in custody by the time of the appeal, equivalent to six weeks' punishment, the court imposed a conditional discharge for two years rather than a community order. This approach balanced the need for punishment and deterrence with proportionality and respect for the appellants' rights.
Holding and Implications
The court GRANTED LEAVE TO APPEAL and ALLOWED THE APPEALS against the immediate custodial sentences imposed on the appellants for public nuisance.
The direct effect of this decision was to replace the custodial sentences with conditional discharges for two years, reflecting that the appellants had already served a custodial period sufficient to meet the punishment element. The court emphasized that the custody threshold had not been crossed, and that community sentences with punitive requirements would have been more appropriate initially.
No new precedent was established beyond the application of existing principles regarding sentencing for protest-related offences and the careful balancing of freedom of expression rights with public order considerations.