On 17 October 2022 at 03:45, Morgan Trowland and Marcus Decker were dropped off by vehicle on the carriageway of the M25 at the Queen Elizabeth II Bridge. They proceeded to scale the bridge by the cable stays. When they reached a height of approximately 60 metres, they put cross-wires in place on the bridge and unfurled a banner between them, which advertised the cause for which they were protesting: Just Stop Oil.

They had come equipped with hammocks and food and drink so that they could remain on the bridge for a considerable period of time. Having conducted a series of media interviews to publicise their climate change cause, Decker and Trowland eventually decided to leave the bridge. They negotiated with the police and were removed by a cherry picker on 18 October at 17:15. It took further hours before the road could be opened, since the banner and cross-wires needed to be safely removed. As a result of the protest, the road was closed for 40 hours.

Defendants were not entitled to an unqualified right to protest

Trowland and Decker were then charged with the offence of intentionally or recklessly causing a public nuisance contrary to section 78 of the Police, Crime, Sentencing and Courts Act 2022. (Public nuisance was previously an offence at common law.) At trial, the defendants attempted to stage a defence on the grounds of “reasonable excuse” under section 78(3) of the 2022 Act, arguing that they were exercising rights under the article 10 of the ECHR. HHJ Collery KC removed that defence from the consideration of the jury at the conclusion of the evidence, since the defendants were not entitled to an unqualified right to protest on property excluded to the public. On 4 April 2023, the defendants were found guilty by the jury. On 21 April 2023, HHJ Collery KC sentenced Trowland to three years’ imprisonment, half of which would be served in custody and the remainder on licence. Decker was sentenced to two years and seven months’ imprisonment, half of which would be served in custody and the remainder on licence. Both of the sentences were considerable for protest related offences.

Just Stop Oil and its supporters railed against the conviction and sentence. Earlier this year, a group of lawyers signed a Declaration of Conscience, stating that they would withhold their services from supporting any fossil fuel projects and in any prosecutions against climate protesters “exercising their democratic right of peaceful protest”. The implication of the statement was that signatories would be acting against the rule that they should not turn down cases because they find the client or nature of the case objectionable. Therefore Adam King, the prosecutor in the Decker and Trowland case, tweeted out the result of the trial by saying:

I’m proud to have done a bit of public service in prosecuting this trial. To assert ‘conscientious objection’ in cases like this is to encourage the identification of counsel with their clients – which is obviously bad for justice generally.

Insulate Britain responded with the following ludicrous threat: “Frame this for the trials that will undoubtedly take place in the years to come. Adam will be at the front of the queue for prosecution.” That response demonstrated the contempt for the justice system displayed by many of the more extreme climate change protesters.

Alan Rusbridger commented on the sentences of Decker and Trowland in an article for Prospect. He argued that “English have a rather proud record of not incarcerating non-violent protestors acting on a matter of conscience” and that the sentence reflected Britain becoming a less tolerant society. To support his argument that the custodial sentences were out of keeping with the approach of the courts towards protesters, Rusbridger quoted from Lord Hoffmann on civil disobedience, emphasising the line that “It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind”. Rusbridger failed to understand the import of Lord Hoffmann’s remarks, even though he referenced a “bargain” between protesters and authorities. The relevant passage from Lord Hoffmann in R v Jones is as follows:

But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account. The conditional discharges ordered by the magistrates in the cases which came before them exemplifies their sensitivity to these conventions. [Emphasis added]

Whilst Rusbridger stressed the importance of accommodation of protest and conscientious motives, the bargain in R v Jones equally applies to protesters: they should not cause excessive damage or inconvenience, and they should vouch for the sincerity of their beliefs by accepting the penalties imposed by the law. This understanding of R v Jones was followed in Cuciurean, where it was said that if the court had concluded the defendant had not behaved proportionately, or had caused excessive harm, or had not accepted the penalties imposed, his culpability would be higher, and there would be little or no basis on which to expect restraint from the court. The point of the bargain is that there are expectations placed on both sides.

Had Rusbridger bothered to read the publicly available sentencing remarks in R v Trowland and Decker, he would have noted that HHJ Collery KC referenced the bargain. HHJ Collery KC quoted from Roberts, saying that the mutual understanding operated where a sense of proportion on the part of the offender in avoiding excessive damage or inconvenience would be met with a relatively benign approach to sentencing from the courts. The defendants could not benefit from this bargain because they had not observed it. The aim of the protesters was to cause maximum obstruction by means of a “spectacular protest”. In so doing, they caused disruption to “hundreds of thousands of people” for 40 hours. The damage to those using the roads was both financial and otherwise. There were missed funerals, missed hospital appointments, causing continued pain, lost wages and, for one business, a loss of over £6,000 in revenue, amongst other harms as a consequence of the defendants’ actions. The defendants also had a number of previous convictions in relation to protest offences, and they were currently on bail at the time of the offending. The defendants had, therefore, broken the bargain and could not expect a lower sentence.

Non-violent protest may still be unlawful and attract severe sentences

On Monday this week, the judgment in Trowland and Decker’s appeal against sentence was handed down. Lady Justice Carr, due to be sworn in as Lord Chief Justice on 2 October this year, sat with Mrs Justice Cutts and Mrs Justice Thornton. The judgment shows that Lady Justice Carr is not likely to depart from the approach of the current Lord Chief Justice, Lord Burnett, who was not persuaded to give an expansive attitude towards protest rights. Trowland and Decker’s appeal against the sentence was dismissed. Custodial sentences may indeed be warranted in cases of peaceful protest, and the sentences were not disproportionate or manifestly excessive. It is important to recognise that non-violent protest may still be unlawful and so serious as to attract severe sentences. The rights of the defendants to protest should be balanced against the rights of the community to economic well-being and the ability to go about their daily lives “safely and without illegal interference”.

The Court of Appeal sought to distinguish between a “chilling effect” and deterrence. Rusbridger’s reaction to this observation was to characterise it as being absurd, as if the two were essentially the same. The court was correct, however. A chilling effect is where lawful expression is discouraged as a result of, for instance, punishment, excessive damages or the threat of libel action. The concept appears to have been first expressed in US case law. Deterrence, on the other hand, is one of the aims of sentencing under section 57 of the Sentencing Act 2020. The defendants, in carrying out serious obstruction in order to attract attention for their cause, were engaging in a form of unlawful activity as part of a pattern of offending being undertaken in England and Wales. In order to deter similar protests, a high sentence was warranted, not only for the defendants, but for others, since climate protesters have used disruption as a tool to spectacular effect elsewhere. High sentence for such activity should not have an impact on other lawful protest. As the Court of Appeal said in its conclusion:

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.

At the conclusion of R v Trowland and Decker, the Court of Appeal recognised Lord Hoffmann’s remarks on civil disobedience in R v Jones when dismissing the appeal. The barrister Adam Wagner said that it was “a bit odd” that civil disobedience requires leniency on the one hand and then to say that this “severe sentence was OK”. Yet, it is clear that civil disobedience is not a licence for protesters to repeatedly offend, causing significant disruption and harm. In light of the increasingly extreme actions on the part of a section of climate protesters, the courts have rightly recognised the need to prevent the spread of similar conduct.