Morgan Trowland & Anor v R

Sentencing for intentional or reckless public nuisance committed through non-violent protest is fact-sensitive. There is no rule that conscientious protest requires a non-custodial sentence, although particular caution is required and the motive may reduce culpability. The statutory limbs do not create separate sentencing regimes: actual harm or risk, culpability and the offender’s conduct remain decisive. Articles 10 and 11 require a proportionality assessment. Protection is weaker where protest occurs away from the core rights or deliberately aims to impose extreme disruption. Deterrence may address both the offender and others. Severe custodial sentences were upheld where the protest caused extraordinary disruption, involved trespass, repeated offending and offending on bail.

Following a seven-day jury trial at Basildon Crown Court, the appellants were convicted of intentionally or recklessly causing public nuisance under section 78(1) of the Police, Crime, Sentencing and Courts Act 2022. The trial judge withdrew the reasonable-excuse defence and later sentenced Mr Trowland to three years’ imprisonment and Mr Decker to two years and seven months’ imprisonment. Leave to appeal against sentence was granted. The appeals alleged errors in the sentencing approach, manifest excessiveness and disproportionate interference with rights under Articles 10 and 11. The central issues were whether custody was justified, how conscientious motive and deterrence should be assessed, and whether the sentences were proportionate.

The court granted leave but dismissed both appeals. The sentences were severe, but neither was manifestly excessive or disproportionate.

1. Statutory framework. Section 78 of the Police, Crime, Sentencing and Courts Act 2022 created a new fault-based public nuisance offence with a maximum sentence of 10 years. The two limbs in section 78(1)(b) do not require different sentencing regimes. Conduct within limb (i) may be more serious than conduct within limb (ii), but is not necessarily so. The sentencing court must consider the actual damage or risk caused. The same approach applies whether the fault element is intention or recklessness. The decision in R v McKechnie and others did not establish otherwise.
2. Protest and culpability. There are no bright lines requiring a non-custodial sentence in non-violent protest cases. Whether custody and its length are justified is fact-sensitive. Particular caution is required, but conscientious motive is more properly considered within culpability than as a mere later mitigating factor. The more disproportionate or extreme the conduct, the weaker the justification for reduced culpability or leniency. Relevant considerations included the protesters’ extensive planning, trespass, repeated protest convictions, bail status, the central purpose of causing disruption and the scale of the resulting harm.
3. Convention rights and proportionality. Articles 10 and 11 remained relevant. The proportionality inquiry required consideration of the statutory basis and legitimate aim, the importance and rational connection of the aim, less restrictive alternatives and the fair balance between the protesters’ rights and the community’s interests. The rights were significantly weakened because the protest took place at a location from which the public was excluded and the disruption was the central objective rather than an incidental effect.
4. Deterrence and rehabilitation. Deterrence was a legitimate sentencing aim and could extend to deterring others, particularly in the context of escalating disruptive protest. Rehabilitation remained relevant, but the judge was entitled to assess the protesters’ underlying motivations, repeated offending, apologies and stated intentions against their history. There was no material impermissible double-counting in taking planning into account.
5. Application. The disruption affected hundreds of thousands of people, caused substantial personal and economic harm and required significant public resources. The earlier decisions in R v Richard Roberts and others [2018] EWCA Crim 2739, R v James Hugh Brown [2022] EWCA Crim 6, and the Strasbourg authorities were materially distinguishable because of the statutory regime, the extreme scale of disruption, the protesters’ records and the relevance of deterrence. The sentences struck a fair balance and were lawful.

• Court of Appeal (Criminal Division): appeals against sentence dismissed; [2023] EWCA Crim 919.
• Basildon Crown Court: following conviction on 4 April 2023, the appellants were sentenced on 21 April 2023 to three years’ imprisonment and two years and seven months’ imprisonment.