Last week, on 18 July 2024, Roger Hallam, an environmental protester, was sentenced to five years imprisonment for a conspiracy to cause public nuisance. His co-defendants, Daniel Shaw, Lucia Whittaker De Abreu, Louise Lancaster and Cressida Gethin, were sentenced to four years imprisonment for the same offence. Hallam and the co-defendants had conspired to cause road blocks by the means of climbing gantries on the M25, one of the most important motorways in the UK. The eventual protest took place from 7 — 10 November 2022, with over 45 activists taking part.

These sentences, described in The Guardian as being longest for protest offending of this type, caused great controversy. To mention a few examples, Michael Forst, the Special Rapporteur on environmental defenders under the Aarhus Convention, said in a letter that it was a “dark day” for peaceful protest; Dale Vince and Chris Packham said that the courts had been “co-opted to do the fossil fuel industry’s dirty work”; the UK was compared to Russia and North Korea by Paul Lewis; and George Monbiot suggested that the sentences and convictions were undemocratic.

Much of the anger comment has underplayed the seriousness of the offending. The sentencing remarks show that custodial sentences were far from unreasonable. HHJ Christopher Hehir detailed just some of the harm consequent to protests. The total extent of the delay was calculated to be 50,856 hours. The vehicles affected were calculated to number 708,523. The economic cost was calculated to be £769,966, without even taking into account the cost of policing. People missed flights and funerals; mock exams were delayed; a child with special needs missed part of his school day, and was not timeously administered necessary medication; someone suffering from cancer missed a crucial appointment, which was re-scheduled for a date two months later; an HGV driver was unable to deliver £5,000 worth of food to a hospital; and, amongst other harms, a number of people missed work, having to work extra hours in order to make up the time. A police officer was also knocked off his motorbike as a result of the disruption.

While there is a right to protest, under articles 10 and 11 (freedoms of expression and assembly) of the European Convention on Human Rights, that right is qualified. States are not prohibited from interfering with that freedom of expression and assembly in all circumstances. Protesters do not have carte blanche to behave as they wish in furthering their cause. Even peaceful protest does not attract an absolute right. In the Court of Appeal last year, in R v Trowland and Decker, Lady Justice Carr described the limits of protest. The two defendants in that case had climbed and occupied the Queen Elizabeth II Bridge, which had the consequence of closing the road for 40 hours. Lady Justice Carr rightly said of protest rights, in response to an appeal on sentence, that:

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.

Non-violent does not mean that the offending is harmless and cannot be punished. In the European Court of Human Rights, in the case of Kudrevičius v Lithuania, the Grand Chamber came to the following conclusion in respect of protesters blocking roads:

… even though the applicants had neither carried out acts of violence nor incited others to engage in such acts […] the almost complete obstruction of three major highways in blatant disregard of police orders and of the needs and rights of the road users constituted conduct which, even though less serious than recourse to physical violence, can be described as “reprehensible”.

Conspiring to block the M25 was not a mere trifle. This was not an incidental delay due to an assembly in a normal protest location. The road is a major part of UK infrastructure, affecting the lives of countless people.  The group of defendants had intended even further gridlock. Hallam hoped that the “whole motorway” would fill up with cars, with no-one being able to get on that motorway. He hoped that it would “back up on all the other motorways all the other A-roads”. As HHJ Hehir observed in his sentencing remarks, “the consequences would have been catastrophic,” and would have had a major impact on food supplies and the maintenance of law and order, amongst other things. This was nothing less an attempted act of sabotage on a large scale.

A longer sentence was, therefore, inevitable, given this lack of contrition and the pattern of repeated law-breaking

Moreover, much of the critical commentary on the sentences fails to take into account the wider picture in respect of the defendants’ previous offending. The defendants all had previous convictions. Hallam, who was given the longest sentence, had eleven previous convictions between 2017 and 2024. He received a suspended sentence in 2024 for conspiring to cause a public nuisance by plotting to close Heathrow airport through the use of drones. Additionally, the HHJ Hehir did not accept that the defendants were contrite. The defendants, HHJ Hehir said, had used the trial itself as a form of direct action protest and all demonstrated their view that the criminal law did not apply to them because of the importance of their cause. A longer sentence was, therefore, inevitable, given this lack of contrition and the pattern of repeated law-breaking.

On X (formerly Twitter), the barrister Adam Wagner said that HHJ Hehir’s description of Hallam and the other defendants as “fanatical” to be unpalatable. “It may suggest,” he said, “that [the] right to protest/assemble is basically extinguished in the judge’s eyes, also supported by his approach to leniency. ‘Fanatic’ is not a legal term.” Legal term or not, HHJ Hehir, as a judge using his judgement, was reflecting on the nature of the defendants’ conduct. The defendants were acting with contempt for the rights of others and the rule of law. They would not be entitled to leniency because Hallam’s attitude was clear from the way in which he conducted his defence (making political speeches indicating no contrition), from his repeated offending and from its unreasonableness, excessive nature. The defendants had therefore lost a sense of proportion (the principle of which was discussed by Lord Hoffmann in an often quoted passage in R v Jones at [89]).

Another common criticism of the case has been the fact that conviction was for a conspiracy. One refrain was that the defendants had been convicted for just being on a “Zoom call”. This disingenuous framing follows other similar points from Just Stop Oil. They will often claim that they have been arrested for simply delivering a letter or simply standing on the pavement, deliberately omitting to mention the fact that the conduct may be in breach of an injunction or may constitute harassment. With regard to the Zoom call, it hosted a meeting where there was a detailed plan to organise mass disruption, contrary to the law. It should not be a matter of controversy that planning to break the law should result in a criminal conviction.

George Monbiot and Clive Lewis MP both called for the relevant legislation to be repealed. Clive Lewis called the legislation “draconian” and attributed it to the Conservative Party aiming to stifle protest. Yet, the offence itself previously existed at common law and was never solely used to prosecute protest. In 2015, the independent Law Commission recommended that the offence be put on a statutory footing. With regard to sentence, it was recommended that as “the offence is intended to address serious cases for which other offences are not adequate, if a maximum sentence is set it should be high enough to cover these cases”. The previously unlimited sentence was reduced to 10 years in the statutory offence under section 78 of the Police, Crime, Sentencing and Courts Act 2022. Repealing section 78 would leave a gap in the law, where instances of disruptive conduct would not necessarily be covered in other legislation or common law offences. Additionally, it provides a higher sentence for very serious conduct, which other lower level offences would treat with excessive leniency.

Michael Forst, the UN Special Rapporteur, did not analyse any of the justifications for criminalisation and for custodial sentences in his previously mentioned letter. Despite his lofty sounding title, his unbalanced letter read more like the work of an activist than of a sober expert. He invited the UK to reduce the sentence of the defendant Daniel Shaw so that it would be in compliance with the Aarhus Convention. That convention itself makes no express mention of a right in these circumstances. It is, however, apparently implicit under article 3(8) of the Convention that “environmental defenders” may not be “penalized” for exercising general rights, including the right to be included in decision-making under article 1. Regardless of whether this interpretation is convincing, Forst made no attempt at analysing the limits to acceptable protest or the best approach to sentencing. There was no discussion of the scale of the disruption (in a separate letter Forst even tiresomely used the “simply engaged in a Zoom call” line). Likewise, there was no discussion of Shaw’s previous conviction. There was no discussion of case law from the European Court of Human Rights, which would assist in understanding when interference with qualified rights is justified. This is patently not an appropriate platform on which to criticise criminal law and sentencing, since the Aarhus Convention inherently does not lend itself to such a discussion. As such, the suggestion that the UK should interfere with the determination of an independent judge should be rejected.

Ultimately, direct action protesters, who deliberately break the criminal law in order to garner attention to themselves, should accept that custodial sentences may follow. The courts cannot repeatedly ignore flagrant law-breaking, especially when the defendants fail to convince that they will change their conduct. Even if the Court of Appeal does lower the sentences (which HHJ Hehir himself described as “exemplary”) it should be clear that the custodial sentences are not nearly as draconian as has been presented. Protesters have a right to protest; they do not have a right to cause massive inconvenience and harm. They do not have a right to force outcomes. There is not a carve out in the law, where, acting in pursuance of the most fashionable causes, defendants are immune from the operation of the law.