Roberts & Ors v R.

Peaceful protest does not confer immunity from imprisonment. Sentence depends on the offence, the harm caused, culpability and the offender’s circumstances. Conscientious motivation generally reduces culpability, but protesters must act proportionately and avoid excessive damage or inconvenience.

Articles 10 and 11 of the European Convention on Human Rights require particular caution before a court imposes immediate custody for non-violent protest. They create no bright line between custodial and non-custodial sentences. Custody remains available where the statutory threshold is crossed and the penalty is proportionate.

Strong beliefs cannot themselves be punished. They may, however, be considered when assessing the risk of further offending. On the facts, good character, conscientious motivation and expressions of remorse meant that widespread disruption did not make the offences so serious that only custody could be justified.

Three protesters were convicted in the Crown Court at Preston of common-law public nuisance after occupying the cabs of lorries carrying equipment to a hydraulic-fracturing site. Their occupation lasted between nearly two days and three and a half days. It contributed significantly to extensive disruption on a main road.

The judge imposed immediate sentences of 15 or 16 months’ imprisonment. The applicants sought leave to appeal against sentence, principally contending that custody was impermissible or disproportionate for non-violent peaceful protest, that any custodial terms should have been suspended, and that the judge had overstated their responsibility for the disruption. A further ground alleging apparent bias was not determined.

The central issues were whether peaceful protest creates a rule against custody and whether, applying the ordinary sentencing principles and the protections in articles 10 and 11 of the European Convention on Human Rights, the custody threshold had been crossed.

1. The appeals against sentence were allowed. There is no rule of domestic law or Convention law that an offender engaged in non-violent peaceful protest can never receive a custodial sentence. Protest-related offences vary greatly in seriousness, harm and maximum penalty. Courts must apply the ordinary sentencing considerations of harm, culpability, punishment, deterrence and rehabilitation.

2. Conscientious motivation is important and generally does not impute high culpability to non-violent offending. The common law’s respect for protest and free speech is reflected in sentencing. The relatively benign treatment conventionally afforded to conscientious protesters is associated with their acting proportionately and avoiding excessive damage or inconvenience. The observations in R v Jones (Margaret) [2007] 1 AC 161 did not establish a bright line between custody and a non-custodial disposal.

3. Articles 10 and 11 of the European Convention on Human Rights apply to direct-action protest but are qualified rights. Strasbourg authority shows that immediate and suspended imprisonment can be proportionate sanctions for non-violent protest. Particular scrutiny and caution are nevertheless required where imprisonment is imposed. The Convention and the common law therefore adopt the same fact-sensitive approach.

4. Under section 152 of the Criminal Justice Act 2003, custody was permissible only if the offences were so serious that neither a fine nor a community sentence could be justified. The appellants caused widespread disruption and persisted after its seriousness became apparent. Nevertheless, their good or effective good character and conscientious motivation meant that the custody threshold was not crossed. The Crown Court judge was entitled to assess the extent of the disruption on the evidence and had not materially overstated it.

5. An offender must not be penalised for holding strong beliefs. Those beliefs may nevertheless be relevant when a court assesses the risk of further offending. The appellants’ remorse, recognition of the consequences and personal mitigation reinforced the conclusion that a community order with a punitive requirement would originally have met the justice of the cases.

6. By the appeal hearing, each appellant had spent three weeks in custody, equivalent to serving six weeks. That provided adequate punishment. The custodial sentences were replaced with conditional discharges for two years. The apparent-bias ground was left undetermined.

1. Court of Appeal (Criminal Division): Leave to appeal against sentence was granted and the appeals were allowed in [2018] EWCA Crim 2739. The immediate custodial sentences were replaced by conditional discharges for two years.

2. Crown Court at Preston: The appellants were convicted of common-law public nuisance and sentenced to immediate terms of 15 or 16 months’ imprisonment.