Factual and Procedural Background
Sixteen applications for leave to appeal against sentence were referred to the full court by the Registrar. Leave to appeal was granted on all applications and the court proceeded to consider the substantive appeals. The appellants were defendants sentenced in four separate cases involving offences connected to protests occurring between August and November 2022. These protests were conducted under the name Just Stop Oil, relating to climate change issues.
The four cases are as follows:
- The Thurrock Tunnels Case: In August 2022, protesters occupied tunnels under roads providing access to an industrial estate including an oil terminal in Thurrock, Essex, causing road closures. Four appellants were convicted of conspiracy to cause a public nuisance and sentenced to immediate custodial terms ranging from 15 to 36 months.
- The Sunflowers Case: On 14 October 2022, two protesters threw soup onto a famous painting in the National Gallery, causing damage to the frame. They were convicted of criminal damage and sentenced to custodial terms of 20 and 24 months.
- The M25 Conspiracy Case: Between 7 and 10 November 2022, 45 protesters climbed gantries on the M25 motorway. Five appellants convicted of conspiracy to cause a public nuisance received custodial sentences between 4 and 5 years.
- The M25 Gantry Climbers Case: Five appellants pleaded guilty to causing a public nuisance by climbing gantries on the M25 on 9 November 2022. They received custodial sentences ranging from 20 to 24 months.
The appeals raised general issues concerning sentencing principles applicable to non-violent protests and the engagement of European Convention on Human Rights (ECHR) rights, particularly Articles 10 and 11.
Legal Issues Presented
- What is the proper approach to sentencing non-violent protest offences, including the role of conscientious motivation and deterrence?
- How should the courts apply Articles 10 and 11 of the ECHR in sentencing cases involving protest-related offences?
- Whether the sentencing judges properly applied the principles established in R v Trowland and related case law.
- Whether the sentencing in the individual cases was proportionate and consistent with established legal principles.
- Whether the Aarhus Convention is relevant to sentencing discretion in environmental protest cases.
Arguments of the Parties
Appellants' Arguments
- The appellants contended that their conscientious motivation to communicate views on climate change should have resulted in reduced sentences, asserting that the sentencing judges failed to properly consider this factor.
- They argued that Articles 10 and 11 ECHR rights were engaged and that the custodial sentences imposed were disproportionate interferences with these rights.
- The appellants submitted that sentencing judges did not adequately apply the principles from R v Trowland and related authorities.
- They raised concerns about disparities in sentencing among co-defendants involved in the same protests.
- The appellants contended that the Aarhus Convention should inform sentencing discretion as an aid to interpreting ECHR rights.
Crown's Arguments
- The Crown submitted that conscientious motivation is relevant but does not preclude a finding of high culpability and does not guarantee leniency.
- It was argued that Articles 10 and 11 do not confer a right to trespass and that the acts of trespass significantly weaken the protection of these rights in sentencing.
- The Crown maintained that the sentencing judges correctly applied R v Trowland and related principles.
- Regarding disparities, the Crown submitted that differences in personal circumstances and offending justified sentence variations.
- The Crown argued that the Aarhus Convention is not incorporated into English law and is not applicable to the appellants' activities or sentencing.
Interveners' Arguments
- Interveners supported the appellants' contention that conscientious motivation should have been given greater weight in sentencing.
- They supported the submission that Articles 10 and 11 were engaged and that the sentences interfered disproportionately with these rights.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Trowland [2023] EWCA Crim 919; [2024] 1 WLR 1164 |
Authoritative guidance on sentencing for non-violent protest offences under s. 78(1) of the Police, Crime, Sentencing and Courts Act 2022, including the role of conscientious motivation and ECHR rights. |
Served as the primary framework for sentencing principles applied in all cases; principles were accepted without challenge. |
| R v Roberts [2018] EWCA Crim 2739; [2019] 1 Cr App R (S) 48 |
Consideration of deterrence and sentencing in protest-related public nuisance offences. |
Used to support the importance of deterrence and to contrast with escalating protest activity. |
| R v Brown [2022] EWCA Crim 6; [2022] 1 Cr App R 18 |
Sentencing principles in aggravated trespass and protest offences. |
Referenced in relation to deterrence and sentencing consistency. |
| Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9; [2020] 4 WLR 29 |
Discussion of deterrence and sentencing leniency for protestors. |
Considered in relation to deterrence and conscientious motivation. |
| Taranenko v Russia (2014) ECHR 485; Application No 19554/05 |
Guidance on the relevance of Articles 10 and 11 in protest cases and caution in imposing custodial sentences. |
Supported the court’s approach to ECHR rights in sentencing non-violent protestors. |
| Kudrevicius v Lithuania (2016) 62 EHRR 34; Application No 37553/05 |
Clarification that disruption is not at the core of Articles 10 and 11 and that trespass weakens ECHR protections. |
Applied to assess the weakened ECHR rights of appellants due to trespass and disruption. |
| DPP v Ziegler and others [2021] UKSC 23; [2022] AC 408 |
Limits on consideration of protestors' views in sentencing and proportionality assessment under ECHR. |
Referenced to explain the scope of ECHR rights and the approach to conscientious motivation. |
| R v Jones (Margaret) [2006] UKHL 16; [2007] 1 AC 136 |
Consideration of conscientious motivation in protest sentencing. |
Supported the principle that conscientious motivation may reduce culpability but depends on proportionality of actions. |
| National Highways Ltd v Heyatawin and others [2021] EWHC 3078 (QB); [2022] Env LR 17 |
Consideration of protest-related offences and sentencing factors. |
Referenced in relation to conscientious motivation and proportionality. |
| R v Ratcliffe [2024] EWCA Crim 1498 |
Sentencing judges are not obliged to quantify reductions for mitigating factors such as conscientious motivation. |
Applied to reject the appellants’ argument that specific percentage reductions should be stated. |
| Richardson v DPP [2014] UKSC 8 |
Article 10 and 11 do not confer a licence to trespass. |
Applied in ruling that trespassers do not enjoy full ECHR protection for protest activities. |
| Appleby v United Kingdom (2003) Application No. 44306/98 |
Articles 10 and 11 do not grant a right of entry to private property. |
Supported the court’s conclusion that trespass weakens ECHR rights in protest contexts. |
| R v Chee Kew Ong [2001] 1 CrAppR (S) 117 |
Sentencing for conspiracy to cause public nuisance. |
Referenced as precedent for public nuisance sentencing. |
| R v Cleator [2016] EWCA Crim 1361 |
Sentencing for public nuisance involving motorway disruption. |
Referenced as precedent for public nuisance sentencing. |
| R v Whitehouse [2019] EWCA Crim 970; [2019] CRAppR (S) 48 |
Consideration of credit for time on curfew and bail conditions in sentencing. |
Applied in adjusting sentence for one appellant due to curfew conditions. |
| R v Nwankwo [2024] EWCA Crim 1375 |
Sentencing adjustments related to bail and curfew conditions. |
Referenced in relation to curfew credit. |
| Clarke [2018] 1 Cr App R (S) 52; [2018] EWCA Crim 185 |
Consideration of youth and maturity in sentencing young adults. |
Applied in assessing reduced culpability due to immaturity for a young appellant. |
| Murat Vural v Turkey (2014) Application No. 9540/07 |
Protest involving paint on public statues engages Article 10 rights. |
Used as comparison to find Articles 10 and 11 engaged in the Sunflowers case. |
| Attorney General's Reference (No 1 of 2022) [2022] EWCA Crim 1259; [2023] KB 37 (Colston) |
Definition of violent vs non-violent protest and relevance to ECHR rights. |
Applied to determine that the Sunflowers case was non-violent and thus engaged ECHR rights. |
Court's Reasoning and Analysis
The court began by summarising the four cases and confirming that the principles established in R v Trowland provide the authoritative framework for sentencing non-violent protest offences under the new statutory offence in s. 78 of the Police, Crime, Sentencing and Courts Act 2022. The court emphasised that sentencing must be conducted in accordance with normal principles, including assessment of culpability, harm, and the five purposes of sentencing under the Sentencing Act 2020.
Conscientious motivation is relevant to sentencing, primarily affecting the assessment of culpability rather than serving as a general mitigating factor. However, conscientious motivation does not preclude a finding of high culpability, especially when the offending is disproportionate or extreme.
The court analysed the engagement of Articles 10 and 11 ECHR rights, concluding that while these rights are engaged in protest cases, they do not confer a right to trespass. Trespass and deliberate disruption significantly weaken the protection of these rights, reducing the weight to be given to them in sentencing proportionality assessments.
In the Sunflowers case, the court found that Articles 10 and 11 were engaged despite the damage caused, as the offending was non-violent. The court rejected the trial judge’s conclusion that the articles did not apply due to the significance of damage.
The court considered precedent cases on public nuisance and related offences, noting that sentencing judges had proper regard to the new statutory offence and its sentencing regime. The principle of deterrence was highlighted as particularly important given the escalating nature of protest activity.
The court rejected the appellants’ submission that the Aarhus Convention should influence sentencing, holding that it is not incorporated into English law and does not apply to the appellants' activities.
In reviewing individual cases, the court scrutinised the sentencing judges’ consideration of conscientious motivation, ECHR rights, personal mitigation, previous convictions, and the seriousness of the offending. The court found that in some cases, the sentencing judges had accorded insufficient weight to conscientious motivation and ECHR rights, or had imposed sentences that were manifestly excessive.
The court adjusted sentences in the M25 Conspiracy and M25 Gantry Climbers cases to reflect these considerations, while dismissing appeals in the Thurrock Tunnels and Sunflowers cases where the sentences were found to be proportionate.
Holding and Implications
The court granted leave to appeal against sentence in each case and made the following rulings:
- M25 Conspiracy Case: The sentences were quashed and substituted as follows:
- Roger Hallam: 4 years' imprisonment (reduced from 5 years)
- Daniel Shaw: 3 years' imprisonment (reduced from 4 years)
- Lucia Whittaker de Abreu: 30 months' imprisonment (reduced from 4 years)
- Louise Lancaster: 3 years' imprisonment (reduced from 4 years)
- Cressida Gethin: 30 months' imprisonment (reduced from 4 years)
- M25 Gantry Climbers Case: Gaie Delap’s sentence was reduced from 20 months to 18 months' imprisonment. Appeals by Paul Sousek, Theresa Higginson, Paul Bell, and George Simonson were dismissed.
- Thurrock Tunnels Case: Appeals by Chris Bennett, Dr Larch Maxey, Samuel Johnson, and Joe Howlett were dismissed; sentences were upheld.
- Sunflowers Case: Appeals by Phoebe Plummer and Anna Holland were dismissed; sentences were upheld.
The court’s decision directly affects the custodial sentences imposed on the appellants but does not establish new precedent beyond reinforcing the application of R v Trowland principles. The ruling clarifies the proper weight to be given to conscientious motivation and ECHR rights in sentencing non-violent protest offences and confirms that trespass and deliberate disruption diminish ECHR protections in this context.