R v Claire Smith & Ors

Sentencing for criminal damage committed during a protest follows ordinary sentencing principles. Courts need not assign a fixed discount for conscientious motivation, and must assess deterrence, culpability, harm and custody on the facts. Motivation may justify a lesser sanction, particularly for an otherwise law-abiding protester, but extreme or disproportionate criminal conduct may leave culpability high. The court must not assess the merits of the cause. Articles 10 and 11 do not require a separate or more elaborate sentencing exercise: proper application of common-law principles ordinarily respects those rights.

On 26 August 2021, five applicants entered the fountains around the Queen Victoria Memorial and used red dye, causing criminal damage. They were convicted at the Crown Court at Southwark on 28 August 2024. On 18 October 2024, they received sentences of 18 months’ imprisonment, suspended in four cases, with one concurrent sentence.

The applicants sought extensions of time and leave to appeal against sentence. They challenged the findings on culpability and harm, argued that their conscientious motivation should have attracted greater mitigation, relied on Articles 10 and 11 of the Convention, and, in two cases, challenged the failure to distinguish their roles. The central issue was whether the sentences were unlawful or manifestly excessive.

All applications, including the applications for extensions of time and leave to appeal against sentence, were refused.

1. Nature of protest offending. Criminal damage committed in the context of protest does not automatically fall within the category of non-violent protest. The court referred to Attorney General’s Reference (No. 1 of 2022) [2023] KB 37 (CA). Sentencing nevertheless proceeds according to ordinary principles. The court should not rely on comparisons with sentences in unrelated cases, assign a fixed numerical reduction for conscientious motivation, or evaluate the merits of the protester’s cause. Deterrence and the custody decision remain fact-sensitive.
2. Motivation and Convention rights. Conscientious motivation may be relevant to culpability, particularly where the offender is otherwise law-abiding, and may justify a lesser sanction. The more disproportionate or extreme the action, the less justification there is for reduced culpability or leniency. Motivation does not prevent a finding of high culpability. Articles 10 and 11 were engaged, but criminal damage weakened the weight of those protections. Proper application of common-law sentencing principles was sufficient to respect the Convention rights. The suspended sentences adequately reflected the motivation while protecting the public and providing deterrence.
3. Culpability and harm. The evidence established a high degree of planning, placing the offending in Category A for culpability. Under section 63 of the Sentencing Act 2020, foreseeable harm had to be considered. Prompt cleaning did not negate the seriousness of the foreseeable permanent damage to a nationally important heritage asset. The damage was capable of falling within the highest harm category, and the custody threshold was plainly passed.
4. Relative roles. The judge was entitled to find that all five applicants acted in a joint enterprise, supported one another and were equally responsible, even though two did not themselves apply dyed water to the marble.

• Court of Appeal (Criminal Division): On 16 December 2025, all applications for extensions of time and leave to appeal against sentence were refused: [2025] EWCA Crim 1623.
• Crown Court at Southwark: The applicants were convicted on 28 August 2024 and sentenced on 18 October 2024 following trial before His Honour Judge Perrins and a jury.