Posted by 
Lengthy prison sentences have been imposed on five Just Stop Oil activists for coordinating direct action on the M25, the main ring road around London. For a non-violent protest, there is no equivalent in modern times.
The five years for Roger Hallam and four years for the remaining four: Daniel Shaw, Louise Lancaster, Cressida Gethin and Lucia Whittaker de Abreu, have been widely condemned as grossly disproportionate. According to one snap poll, 61% of the public consider the sentences too harsh.
But nobody should be surprised: these sentences are a logical outcome of Britain’s authoritarian turn against protest over the past five years.
Protest in England and Wales was previously dealt with by the courts according to what we call Hoffmann’s Bargain. This meant protesters should accept their guilt in court, but their conscientiousness – along with the wider importance of disruptive protest to democracy – would be rewarded with lenient sentences.
This changed with the prosecution of the Stansted 15, who were charged and found guilty of terrorist-related offences for stopping a deportation flight in 2017. The 15 were sentenced to community service, fines, and for some, short suspended prison sentences. On appeal, the Court of Appeal threw out the charges in 2021, but at the same time hardened the general approach of the courts to protest, confirming that a key defence (known as necessity) was not available to protest defendants in court.
Read more: The Stansted 15 appeal: a hollow victory for the right to protest?
Making it harder for activists to defend themselves
Since then, three things have happened. First, other potential defences that protesters could rely on, including lawful excuse, have been systematically restricted by the Court of Appeal.
Second, the Crown Prosecution Service (CPS) has sought where possible to bring more serious charges against protesters than used to be the case. In this they have been encouraged by new legislation brought in by the last government, notably the Police, Crime, Sentencing and Courts Act (2022) and the Public Order Act (2023).
Third, judges have typically sought to control and reduce the time that defendants have in court to explain their motives to the jury, because – without a defence in law – the defendants’ arguments are, in legal terms, not relevant.
We saw each of these dynamics in the Just Stop Oil “Conspiracy 5” trial. Before 2018, public nuisance itself was barely used for protest offences, but the CPS now regularly brings this charge against peaceful protesters. But the charge of a conspiracy to cause public nuisance, which these five defendants faced, is a further escalation as it treats protest movements as a criminal enterprise, and does not allow a lawful excuse defence. As a consequence, the stakes are higher and the outcomes more serious.
In court, the defendants were unable to argue that they had a lawful excuse for their action (Hallam repeatedly tried to argue this in court, and was repeatedly shut down by the trial judge). Finally, although the defendants did manage to explain their motives to the jury, the jury had no opportunity to find them not guilty in law. Although juries still have the power to find defendants not guilty by making a moral rather than a legal decision, this is much harder and rarer.
The result is that the first part of Hoffmann’s Bargain is being abandoned. With no recourse to a defence in law, protest defendants are now regularly being found guilty. But the second part of the bargain, leniency at sentencing, is increasingly being forgotten.
A new benchmark
In April 2023, Just Stop Oil activists Morgan Trowland and Marcus Decker were sentenced to three years and two years seven months in prison respectively after being convicted of public nuisance for disrupting the Dartford Crossing, a large bridge over the Thames to the east of London. Upheld by the Court of Appeal, these sentences have now become a benchmark.
In the Conspiracy 5 case, the trial judge explicitly cited this benchmark as the basis for the sentences he imposed, and any appeal against them will have to reckon with the Court of Appeal’s determination that they are fair.
This case brings into sharp focus two very contrasting visions of what a trial is, and what the criminal law is for. The courts are effectively treating protest trials as a legal flowchart, with a strict distinction between what is and what is not relevant on the shortest route to a verdict.
But defendants often see the courts as a place where they can make urgent arguments about moral values and social justice. Rather than a public nuisance, they consider their actions a public service. By not allowing defendants to account for their actions properly, the courts create an artificial separation between law and politics, and diminish the democratic agency of juries.
By imposing prison sentences on non-violent protesters, they impose authoritarian responses to pressing social problems.
Graeme Hayes receives funding from the British Academy and Leverhulme Trust to observe protest trials, under the project Justifying Protest in the Courts: Voice, Democracy, and the Law.
Steven Cammiss also receives funding from the British Academy and Leverhulme Trust to observe protest trials, under the project Justifying Protest in the Courts: Voice, Democracy, and the Law.
