Trowland & Anor, R. v

Factual and Procedural Background

In the early hours of 17 October 2022, two protesters scaled the Queen Elizabeth II bridge on the M25 carriageway, displaying a "Just Stop Oil" banner and suspending themselves in hammocks approximately 60 metres above the ground. They remained there for about 36 hours until arrested. The bridge was closed for approximately 40 hours, causing severe disruption to hundreds of thousands of vehicles and significant economic loss. Both protesters were repeat offenders on bail at the time.

The protesters were charged with intentionally or recklessly causing a public nuisance under section 78(1) of the Police, Crime, Sentencing and Courts Act 2022. Following a seven-day trial before HHJ Collery KC and a jury at Basildon Crown Court, they were convicted on 4 April 2023. On 21 April 2023, the judge sentenced one protester to three years' imprisonment and the other to two years and seven months' imprisonment. The protesters sought leave to appeal against their sentences, contending they were manifestly excessive and disproportionate interferences with their rights under Articles 10 and 11 of the European Convention on Human Rights (ECHR). Leave to appeal was granted, and the appeals were considered on their merits.

Legal Issues Presented

1. Whether the sentences imposed were manifestly excessive and disproportionate interferences with the protesters' rights of freedom of expression and assembly under Articles 10 and 11 of the ECHR, contrary to section 6 of the Human Rights Act 1998.
2. Whether the judge erred in his approach to sentencing, including the treatment of the protesters' conscientious motives, the application of aggravating factors such as previous convictions and bail status, and the role of deterrence.
3. Whether the sentencing properly reflected the statutory framework and relevant case law governing the new offence of intentionally or recklessly causing public nuisance under section 78 of the Police, Crime, Sentencing and Courts Act 2022.

Arguments of the Parties

Appellants' Arguments

• The sentences were manifestly excessive and constituted a disproportionate interference with their Article 10 and 11 rights.
• The judge erroneously treated the interference with human rights as a mere mitigating factor rather than properly assessing proportionality, resulting in an inappropriate starting point for sentencing.
• The sentences imposed were the longest ever for non-violent protest and effectively banned political expression.
• The judge double-counted planning as both culpability and aggravation.
• The judge failed to differentiate sentencing under the different limbs of section 78(1)(b) concerning serious harm versus obstruction.
• The previous convictions and bail status were treated too harshly, ignoring the moral difference of civil disobedience and expressed commitments not to reoffend.
• The judge over-relied on deterrence without adequately considering the custodial time already served and risked a chilling effect on freedom of expression.
• The judge incorrectly equated "novel protest" with "massive disruption" in the sentencing remarks.

Respondent's Arguments

• The sentences were fully justified given the seriousness of the offence and the high level of culpability and harm caused.
• The judge was entitled to consider the protesters' continued commitment to their cause and the need for deterrence.
• There is no significant divergence between domestic and Strasbourg approaches to sentencing in non-violent protest cases.
• In the absence of deterrence, the sentences might be regarded as manifestly excessive, but deterrence was a legitimate and necessary sentencing aim here.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the statutory framework established by section 78 of the Police, Crime, Sentencing and Courts Act 2022, which created a fault-based offence of intentionally or recklessly causing public nuisance with a maximum custodial sentence of 10 years. The offence was designed to address increasing non-violent protest offending. The court emphasized that the offence includes obstruction of the public without requiring serious harm and that custodial sentences can be warranted.

The court acknowledged the qualified rights to freedom of expression and assembly under Articles 10 and 11 of the ECHR, noting the need for careful proportionality assessment when imposing custodial sentences for protest-related offences. It recognized that conscientious motives may reduce culpability but do not grant immunity from criminal sanction, especially when the protest occurs in a location from which the public is excluded and involves trespass and deliberate obstruction.

The court rejected the appellants' submissions that the judge erred by treating human rights interference as a mitigating factor and by failing to adopt a non-custodial starting point. It held that sentencing must be fact-sensitive, and the judge properly took account of the caution required in imposing custodial sentences for peaceful protest. The court also dismissed arguments for different sentencing approaches under the distinct limbs of section 78(1)(b), finding no principled basis for differentiation.

Regarding previous convictions and rehabilitation prospects, the court upheld the judge's assessment that the protesters' past protest offending and bail status were serious aggravating factors and that their expressed commitment not to reoffend was unreliable. The judge's evaluation of the evidence, including the protesters' attitudes and motives, was entitled to deference.

On deterrence, the court recognized it as a legitimate sentencing aim, particularly given the escalating scale and disruption of protests by groups such as Just Stop Oil. The court found no impermissible double-counting of planning nor an erroneous conflation of "novel protest" with "massive disruption" in the judge's remarks.

In assessing proportionality, the court considered the extensive planning, high culpability, deliberate obstruction of a critical infrastructure site, severe disruption to hundreds of thousands of people, economic loss, and the protesters' repeat offending. It found that the Article 10 and 11 rights were significantly weakened on the facts because the protest was deliberate, non-permitted trespass causing extreme disruption as a central aim.

The court distinguished the present case from precedent cases involving shorter disruptions and less serious offending, noting the statutory context of the new offence and the higher maximum sentence. It concluded that the sentences imposed struck a fair balance between the protesters' rights and the public interest, including safety and economic wellbeing.

Holding and Implications

The court DISMISSED THE APPEALS.

The sentences of three years' imprisonment for the first protester and two years and seven months' imprisonment for the second protester were upheld as not manifestly excessive nor disproportionate interferences with their Article 10 and 11 rights. The court found no material error of principle in the sentencing exercise. The decision reflects Parliament's intent in enacting section 78 to impose stringent sanctions for intentional or reckless public nuisance caused by non-violent protest without reasonable excuse.

The direct effect is to maintain the custodial sentences imposed on repeat protest offenders who caused extreme public disruption by trespassing on a critical transport infrastructure. The court emphasized that these sentences should not be seen as chilling lawful peaceful protest generally, but as appropriate responses to serious and deliberate disruption. No new legal precedent beyond the application of existing principles to the facts was established.