Jones & Ors, R. v

A political motive does not excuse criminal conduct during a protest, but it is a relevant sentencing consideration. The court must give proper weight to that motive, the seriousness of the offence and the offender’s character.

An anti-social behaviour order requires clear findings that the statutory conditions are met. Conduct likely to create fear for personal safety may satisfy the requirement of harassment, alarm or distress; mere frustration, annoyance or anger at delay does not. The order must also be necessary and capable of preventing further anti-social conduct. It is not a punitive device or a means of increasing the sentence available for a future offence, and its terms must be proportionate.

The applicants pleaded guilty at the Crown Court at Snaresbrook to offences under section 36 of the Malicious Damage Act 1861 after demonstrations against an arms fair disrupted or attempted to disrupt Docklands Light Railway services.

Most received community orders requiring 80 hours’ unpaid work. One applicant received a suspended prison sentence. The judge also made indefinite anti-social behaviour orders prohibiting interference with specified railway services.

The applicants sought leave to appeal against sentence and the orders. The central issues were whether their protest motives and personal mitigation had been adequately reflected in sentence, and whether the statutory preconditions, preventive purpose and proportionality of the anti-social behaviour orders had been established.

1. Leave was granted and every appeal was allowed to the extent stated. The anti-social behaviour orders were quashed. The 80-hour community orders imposed on Oppenheim, Fenoulhet-Walker, Barnes, Gonzales, Ward, Brown, Dale and Hawkins were replaced with conditional discharges for 12 months. Jones’s community order remained. Sheedy’s suspended sentence was replaced with 80 hours’ unpaid work, with credit for 35 hours already completed.

2. In sentencing, a political protest did not excuse the railway offences. Nevertheless, its legitimate motive was highly relevant to punishment, as were the applicants’ exceptional character and voluntary work. The court applied the approach identified in R v Jones & Ors [2006] UKHL 16. For most applicants, 80 hours’ unpaid work gave insufficient weight to those matters. A community penalty was emphasised to be a serious sanction, not a soft option.

3. Under section 1C(2)(a) of the Crime and Disorder Act 1998, the sentencing court had to make clear findings about the manner of the conduct and whether it caused, or was likely to cause, harassment, alarm or distress. Disorder caused by angry passengers reacting to the applicants could not establish that condition. Mere frustration or annoyance caused by a train delay was insufficient. Interference with trains could, however, be capable of creating fear for passenger safety. The court did not need finally to decide whether that limb was met.

4. The necessity condition in section 1C(2)(b) was not satisfied. Following R v Dean Boness & Ors [2005] EWCA Crim 2395, an order is preventive and protective, not punitive. There was no adequate evidence that most applicants would repeat anti-social conduct, and the order could not practically prevent a future railway offence. Its real effect would be to increase the sentence available upon later offending, contrary also to R v Kirby [2005] EWCA Crim 1228.

5. The orders were independently disproportionate. They were unlimited in time and were not linked to evidence that a future arms fair would create any relevant risk on the transport network covered by their terms. Completion of all or much of the original unpaid work did not prevent the substituted conditional discharges; any later court would take that completed punishment into account.

• Court of Appeal (Criminal Division) — Granted leave and allowed the appeals: [2006] EWCA Crim 2942. It quashed all anti-social behaviour orders and varied the sentences.
• Crown Court at Snaresbrook — Following guilty pleas under section 36 of the Malicious Damage Act 1861, imposed community sentences or a suspended custodial sentence and made indefinite anti-social behaviour orders.