REGINA v JAMES HUGH BROWN

A prosecution for common-law public nuisance is not an abuse merely because the conduct could also be charged as a statutory offence carrying a lower maximum penalty. A stay is justified only where a fair trial is impossible or the prosecution threatens the integrity of the criminal justice system, such as through calculated manipulation of process. The relevant comparison is the true gravamen of the offending. Aggravated trespass was not a precise fit for widespread disruption to airport users. Convention proportionality does not create a free-standing abuse-of-process jurisdiction where the substantive offence has no Convention defence. Peaceful protest remains important in sentencing, but major disruption, intended harm and deterrence may justify immediate custody.

The appellant was convicted at the Crown Court at Southwark of public nuisance after gluing himself to the roof of a passenger aircraft at London City Airport during a climate protest. He was sentenced to 12 months’ imprisonment.

He challenged the conviction on the grounds that the prosecution should have been stayed because aggravated trespass and airport bylaw offences were available, and because prosecution was disproportionate under articles 9, 10 and 11 of the Convention. He also challenged trial directions and the admission of evidence. The sentence appeal concerned the custody threshold, proportionality, the evidential basis for sentence and the effect of his visual impairment.

1. Conviction. Leave was granted on the abuse-of-process grounds, but the conviction appeal was dismissed. Leave was refused on the remaining conviction grounds.
2. Abuse of process. A stay may be ordered where a defendant cannot receive a fair trial or where it is necessary to protect the integrity of the criminal justice system. The second jurisdiction requires manipulation of the process which the court cannot sanction. Failure to follow good prosecutorial practice is insufficient. Applying R v Rimmington [2005] UKHL 63 and R v Stockli and others [2017] EWCA Crim 1410, there was good reason to prosecute public nuisance. The gravamen was widespread disruption to airport users, which went beyond trespass. Section 68(1) of the Criminal Justice and Public Order Act 1994 did not require an adverse effect on the public and was not a precise fit. The airport bylaws were not statutory offences for this purpose.
3. Convention proportionality. Director of Public Prosecutions v Ziegler [2021] UKSC 23 did not establish a free-standing proportionality-based abuse-of-process jurisdiction. Its ratio concerned the appellate test on a case stated. James v Director of Public Prosecutions [2015] EWHC 3296 (Admin) was applied insofar as it identified the prosecutor’s decision to prosecute as distinct from the trial court’s function. The contrary approach in Dehal v Crown Prosecution Service [2005] EWHC 2154 (Admin) and Abdul v Director of Public Prosecutions [2011] EWHC 247 (Admin) was treated as erroneous. Articles 10 and 11 supplied no substantive defence to public nuisance.
4. Other conviction grounds. The directions concerning self-representation did not create a risk of prejudice. Although the prosecution closing speech should preferably have followed an application inviting objection under Criminal Procedure Rule 25.9(2)(j), any breach did not render the trial unfair or the conviction unsafe. Evidence of the airline’s financial loss was admissible as contextual evidence.
5. Sentence. Applying R v Roberts and Others [2018] EWCA Crim 2739, peaceful protest did not preclude custody. The planned and extensive disruption, lack of proportionality, prior protest offending and need for deterrence meant that the custody threshold was crossed and suspension was inappropriate. The 12-month sentence was manifestly excessive. Taking account of the protest context, mitigation and the practical impact of the appellant’s visual impairment in custody, the sentence was quashed and four months’ imprisonment substituted.

1. Court of Appeal (Criminal Division) — [2022] EWCA Crim 6. Leave was granted on specified conviction grounds and on sentence. The conviction appeal was dismissed. The sentence appeal was allowed in part and the sentence reduced from 12 months to four months’ imprisonment.
2. Crown Court at Southwark — The appellant was convicted of public nuisance on 28 July 2021 and sentenced to 12 months’ imprisonment on 24 September 2021.