Image credit: Simon Leatherdale: is licensed under CC BY 2.0
In the early hours of 17 October 2022 Morgan Trowland, who is now 40 years old, and Marcus Decker, who is now 34 years old, scaled the Queen Elizabeth II bridge on the M25 carriageway.
They hoisted a “Just Stop Oil” banner across the bridge, and suspended themselves in hammocks. There they remained until arrested some 36 hours later. The bridge was closed for about 40 hours as a result of the protest, causing extreme disruption to many members of the public. Both men were repeat protest offenders on bail at the time.
The protesters were charged with the offence of intentionally or recklessly causing a public nuisance contrary to s. 78(1) of the Police, Crime, Sentencing and Courts Act 2022.
On 4 April 2023 they were convicted following a seven-day trial before HHJ Collery KC and a jury in Basildon Crown Court.
On 21 April 2023 the judge sentenced Mr Trowland to three years’ imprisonment, and Mr Decker to two years and seven months’ imprisonment.
The protesters attempted to appeal against sentence. It is argued that their sentences were manifestly excessive and otherwise a disproportionate interference with their rights of freedom of expression and assembly under Articles 10 and 11 of the European Convention on Human Rights (“Article 10”, “Article 11”, “ECHR”), and so unlawful contrary to s. 6 of the Human Rights Act 1988.
What harm did they cause?
As a result of the protest, a minimum of 564,942 vehicles were delayed, with a minimum period of delay of 60,547 hours. At 8.30am on 17 October, there was a queue of over eight miles long at junction 4 of the M25, south of the bridge, and a seven-mile queue north of the bridge. The delay for vehicles at this time was in the order of two hours. In rough terms, the economic impact of this disruption was valued at around £917,000. There was also very considerable disruption caused on roads that were not part of the Strategic Road Network.
There were 22 victim personal statements and six business impact statements before the judge at the time of sentencing. They were representative only: for each, there would be many more who could have given similar accounts.
The Court considered each of these statements individually and in detail, but summarise a sample of instances (of distress and disruption over and above the anxiety and stress of delay itself) as follows:
i) Those who missed the funeral of a close friend or relative;
ii) Those who missed a medical appointment or therapy, leading to continued pain and/or additional distress;
iii) Those who lost wages and/or missed important client appointments;
iv) Work projects, such as a housing project for vulnerable people, delayed;
v) Children left waiting unattended;
vi) Loss of revenue. By way of example only, one business lost around £14,000 (including VAT) due to deliveries being missed and orders not being fulfilled. Staff still had to be paid and reputational damage was caused. Another business lost around £25,000 due to being unable to complete deliveries. Another (printing) business lost £4,000 to £5,000 in revenue.
What did the Court of Appeal Say About the Sentences Imposed?
In rejecting the appeals, the Court held:
“In our judgment, given the protesters’ level of culpability, the location of the offending, the extent of human suffering, disruption and economic damage, the protesters’ offending histories and the need for punishment and deterrence, the sentences imposed struck a fair balance and are not disproportionate. In reaching this conclusion, we have borne well in mind, amongst other things, the protesters’ Article 10 and Article 11 rights, and the conscientious motives that lay behind their offending. Those rights fall to be balanced against the general interests of the community, including the economic well-being of the nation and the rights of members of the public to go about their daily lives safely and without illegal interference.
We conclude by acknowledging the long and honourable tradition of civil disobedience on conscientious grounds as described by Lord Hoffman in Jones at . We also recognise that the sentences imposed go well beyond previous sentences imposed for this type of offending under the old common law offence. However, they reflect Parliament’s will, as enacted in s. 78. As set out above, by s. 78 Parliament introduced a new fault-based public nuisance offence for what obviously will include non-violent protest behaviour, with a maximum sentence of 10 years’ imprisonment. Further, the sentences meet the legitimate sentencing aim of deterrence for such offending in current times. The sentences should not be seen as having a “chilling effect” on the right to peaceful protest or to assembly more generally; deterrence and “chilling effect” are not the same. This protest was of a wholly different nature and scale to the many non-violent protests of conscientious activists up and down the country exercising their rights to freedom of expression and assembly on a daily basis.
We therefore dismiss the appeals. The judge made no material error of principle. His sentences of three years’ imprisonment for Mr Trowland and two years and seven months’ imprisonment for Mr Decker were severe. But we have concluded that they were not manifestly excessive; nor did they amount to a disproportionate interference with their rights of freedom of expression and assembly under Article 10 and Article 11 so as to be unlawful. This was very serious offending by repeat protest offenders who were trespassers (and on bail) at the time; whist the protest was non-violent as such, it had extreme consequences for many, many members of the public. Mr Trowland stated in his evidence that “the warning message is dependent on disruption”. The grave consequences that we have described were not only inevitable, as the protesters would have known, they were precisely what the protesters intended and set out to achieve.”
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- Blog 367