The JSO Five and the Breaking of Hoffman’s Bargain
[Edited on 19 July 2024 following publication of sentencing remarks by Judge Hehir].
On 18th July Roger Hallam, Daniel Shaw, Lucia Whittaker de Abreu, Louise Lancaster, and Cressida Gethin were sentenced for conspiracy to cause public nuisance. Roger received 5 years, and the other 4 years each.[1] These sentences are the longest ever handed down for peaceful protest in the UK, and appear to fly in the face of the oft quoted ‘Hoffman’s bargain’ – that civilly disobedient protesters will remain peaceful and not cause excessive damage or inconvenience, and in return the state will show leniency in sentencing to reflect their conscientious motives.[2] Indeed, it appears that Hoffman’s Bargain has been unilaterally rescinded. To demonstrate quite how excessive these sentences are it is worthwhile to look at relevant caselaw from the ECtHR.
European Court of Human Rights
Where a protesters actions come within the scope of Articles 10 and 11 ECHR – and the actions of the above undoubtedly do, given that they remained peaceful at all times – then any sanctions imposed upon them must be prescribed by law to pursue a legitimate aim that is necessary in a democratic society. The issue that is most relevant to this case is ‘necessary in a democratic society’. This means that any actions taken against the protesters must be proportionate to the legitimate aim, and must answer a pressing social need.[3] In this instance, the prevention of disorder would be the valid legitimate aim. The issue is not whether any sanctions can be imposed – the ECtHR would likely conclude that given the disruption caused by the protest that some form of sanction could have been warranted. The issue is whether these particular sanctions are a justified and proportionate interference with the protester’s rights.
Firstly, the reasons provided by the national courts for the sanctions must be relevant and sufficient.[4] Whilst a charge for public nuisance has a reasonable excuse defence,[5] and therefore the protesters may have relied upon the exercise of their rights as a defence, a charge of conspiracy does not. The Supreme Court has ruled that offences can be categorised into three groups – those which fall out of the protection of the ECHR due to the nature of the acts involved, those which are considered proportionate by their very nature if the ingredients of the offence are met; and those where they cannot be considered inherently proportionate such that a read in of a reliance on Convention rights is required where possible.[6] What has become, more or less, the norm is that where an offence has a ‘reasonable/lawful excuse’, then a read in of Convention rights may be possible. Where it does not exist, then the UKSC said that it in most cases a proportionality assessment will not be required – only in rare cases would it be considered that such general measures would not be proportionate given the deference that should be granted to Parliament. It appears that this was a case where Judge Hehir considered that a conspiracy conviction was inherently proportionate if the ingredients of the offence are met. The bizarre outcome of this is that if charged with the substantive public nuisance offence, a protester could rely on their rights as a defence. But if charged with conspiracy, they cannot, and yet they face sentences that are just as long.
[For a deeper consideration of these issues, see Richard Martin’s article: ‘Convicting Peaceful Protesters: Proportionality’s Proper Place at Criminal Trial’ <https://doi.org/10.1093/ojls/gqae009>]
The lack of any reasonable excuse ingredient for conspiracy therefore prevents the defendants from relying on their rights at trial, but crucially, prevents the courts from assessing the proportionality of their actions under the Convention. The court defers to Parliament, assuming that in enacting the offence of conspiracy without a reasonable excuse, it intended for them not to be able to rely on their rights as a defence. It is therefore unlikely that any particular thought was given to their Convention rights at trial.
Setting this aside, the ECtHR has stated that ‘necessary in a democratic society’ does not mean the same as useful or desirable.[7] In this respect, states are granted some discretion (called ‘margin of appreciation’ in legal terms) in how they restrict qualified rights. As a starting point, the ECtHR has held that peaceful protest should not, in principle, be subject to the threat of criminal sanctions.[8] Furthermore, the court must consider with particular scrutiny those cases that involve custodial sentences.[9] However, it has held that deliberately disruptive protest is not at the ‘core’ of the right to protest, and therefore states have a somewhat wider margin of appreciation in this regard. But how wide?
Sanctions
At sentencing, Judge Hehir relied upon the recent appeal against the sentences in Trowland and Decker, who were convicted of the substantive offence of public nuisance rather than conspiracy for climbing the QE2 Bridge in 2022.[10] Hoffman’s bargain was considered in this case, but the court determined that as the protesters had intended to cause serious disruption to the public, that the reasons for considering leniency in sentencing were reduced.[11] In principle this is defensible and logical – the more extreme the actions of protesters the less leniency will be showed by courts. However, sentences in this case and in Trowland and Decker were imposed to serve as a deterrence – they are therefore intended to be beyond that which would otherwise be necessary. Indeed Judge Hehir referred to the sentences he handed down as ‘exemplary’.[12]
There is no particular support for deliberately punitive sentences in ECtHR jurisprudence re protest. Granted, deliberately disruptive protest has been held not to be at the core of the right to protest; however, all protest is intended to deliberately disrupt. That is how it operates. It disrupts the flow of everyday life to gain attention. ECtHR has not granted states carte blanche to impose any sentence they deem fit upon deliberately disruptive protesters – even those who intend to cause serious disruption. Judge Hehir stated that the total road impact time was 121 hours and 45 minutes.[13] I’m not sure how he came to that figure given that there are only 96 hours in four days. He must have considered the impact of each individual aspect of the protest and added them together, regardless of whether they occurred simultaneously and affected the same roads. It is also not stated at which point serious disruption was caused within those hours, or for how much of the time serious disruption was occurring as opposed to a lesser level of disruption that was nonetheless ‘impact’. He lists a number of examples where people had been impacted – such as people who missed flights or funerals, children missing parts of a day at school, and someone with cancer missing a medical appointment.[14] The problem with these examples, is that they are capable of being caused by all sorts of disruption that we otherwise consider acceptable. Traffic during holidays, the masses of people who surround large sporting or music events, road works, processions of state. Whilst not undermining the personal impact of this disruption, is it really worth 4 or 5 years in jail?
Judge Hehir did not mention the Convention nor the rights of the protesters during sentencing. He equally dismissed Hoffman’s Bargain as not being relevant to the current case due to the level of disruption planned to have been caused.[15] He considered that as Trowland and Becker had covered the relevant ECHR caselaw in depth, he did not need to. However, I would argue that when considering the imposition of sentences that are 2 years longer than those which are already considered severe by the Court of Appeal, then careful consideration of caselaw should be required. Furthermore, a conspiracy charge is different to a charge for a substantive offence. One refers to disruption actually caused, the other to that which was planned to be caused. This should be sufficient to distinguish the two.
This does not mean that a proportionality assessment of the sentences was not conducted as such, but that which was conducted did not follow the formal process of determining the conditions set out in article 11(2) to ensure that an interference with a right is lawful i.e. prescribed by law, and necessary for a legitimate aim. He noted aggravating factors which included the ‘very high levels of disruption caused to the public’, ‘the even higher level of disruption intended’, ‘the harm risked by the disruption’, that they were in breach of an injunction, and that they have previously been convicted of protest related offences. In relation to this, it is worthwhile to consider the responses of the ECtHR to deliberately disruptive protesters and the sanctions imposed upon them.
ECtHR Case Law
Fines have been found to be a proportionate response to engaging in unauthorised protest – where such authorisation was required by national law.[16] However, it held that imposing fines at the upper end of the scale for failing to obtain authorisation to protest was disproportionate.[17]
In Kudrevicius, the ECtHR held that a 60-day custodial sentence, which was suspended for a year, to be proportionate.[18] The defendants did not spend any time behind bars, but required consent to leave their home for more than seven days until the sentence was complete. This was for actions that obstructed major roads in Lithuania for three days which, in particular, had caused serious and prolonged disruption to the boarder roads with Poland for two days and resulted in large numbers of people and commercial businesses being impacted.[19] It has further held that a ten-day custodial sentence for blocking the felling of a tree was proportionate.[20]
Of particular relevance is Ekrem Can and Others v Turkey, in which it was held that a sentence of one year and eight months was a particularly severe sanction for a peaceful protest that breached the defendant’s rights.[21] The protesters had blockaded themselves in a corridor of a courthouse in Istanbul for around an hour until police were able to break through and arrest them. The court held that whilst some sanction might have been warranted, the lengthy prison sentences were not justified. It also considered that the applicants had been kept in pre-trial detention for at least one year and eight months before the sentences were handed down, and noted that this should have been taken into account.
The sentences in the present case are over double the length of the longest prison sentences considered above. Roger Hallam, who received a five-year sentence, was also kept in pre-trial detention for four months, and has been electronically tagged with an 11pm curfew since 2022.[22] Judge Hehir considered these and granted deductions in respect of the time already spent in custody.[23] The sentences of the JSO five are nonetheless manifestly above and beyond any sanction for peaceful protest that the ECtHR has previously considered. It should also be noted that this sanction was not for participating in the protest, but for talking about it beforehand and for taking part in its planning.
Duties on Courts in the UK
The courts in the UK, as a public authority, have a duty under the Human Rights Act (HRA) to act in a Convention compatible manner unless they cannot do so as a result of primary legislation.[24] They are further empowered to interpret legislation in a Convention compatible manner where it is possible to do so.[25] Instead, in cases such as this, it falls upon the discretion of judges in sentencing hearings to ensure that sanctions are proportionate. It is therefore arguable, that by preventing protesters from referring to their rights in court, and by ousting the proportionality assessment, the courts are abjuring their obligations under the HRA.
It is an arbitrary and absurd distinction to consider that, by not providing a ‘reasonable’ or ‘lawful’ excuse ingredient, Parliament intended for there to be no consideration of Convention rights for certain offences. Many offences were enacted before this was even an issue in domestic courts as a result of the HRA. Conspiracy is one of those offences, enacted in the Criminal Law Act 1977 some twenty odd years before the HRA existed. Therefore, we cannot assume that Parliament gave any thought to this issue at the time. What it would be more appropriate to say, is that where no reasonable excuse ingredient is present, Parliament is silent on the matter. There is no ingredient in such offences expressly precluding a reliance on Convention rights, and none that expressly grants it. Given the obligations upon courts in the HRA to act in a Convention compatible manner, and following the Supreme Court judgement of Mendoza in which it was stated that legislation can be modified by Courts as long as its fundamental features are not subverted,[26] I would suggest that all convictions for actions that are protected under Articles 10 and 11 ECHR should be assessed for their proportionality. Where Parliament is silent on the matter, surely the scale should tip in favour of the courts acting in a Convention compatible manner where they are able to do so. It would ensure, at the very least, that the courts provide relevant and sufficient reasons for their sanctions. It would also ensure that courts are appropriately discharging their duties under the HRA and not sidestepping their responsibilities by an artificial deference to Parliament.
It may have assisted the JSO five above, who strived to rely upon the defence of necessity due to the absence of a reasonable excuse ingredient in a conspiracy charge. Though, given the direction the trial was going in, and the length of the sentences imposed, it may not have made any discernible difference. It is odd, given the long history that civil disobedience has in the UK, that Hoffman’s Bargain has been given such short thrift with not so much as a sideward glance. Though I expect it is somewhat the result of an environment in which climate protesters are labelled as eco zealots, eco clowns, and fanatics. In which the discretionary powers of the police are expanded to encapsulate and criminalise any activity that causes more than minor disruption.[27] And in which the courts continue to refuse to engage meaningfully with their duty under the HRA vis-à-vis protest related offences. I nonetheless expect that these sentences will be appealed. If they make it to the ECtHR, then I also expect the sanctions will be found to be disproportionate. Or at least, I hope.
[1] Damien Gayle, ‘Five Just Stop Oil Activists Receive Record Sentences for Planning to Block the M25’ The Guardian (London, 18 July 2024) Available at: <https://www.theguardian.com/environment/article/2024/jul/18/five-just-stop-oil-supporters-jailed-over-protest-that-blocked-m25> [Accessed on18 July 2024].
[2] R v Jones (Margaret) [2006] UKHL 16, [2006] 2 WLR 772, [89].
[3] Navalnyy v Russia (2019) 68 EHRR 25; Kudrevicius v Lithuania (2016) 62 EHRR 34.
[4] Kudrevicius v Lithuania (2016) 62 EHRR 34.
[5] Police, Crime, Sentencing and Courts Act 2022, s.78.
[6] Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill (NI Abortion Services) [2022] UKSC 32.
[7] Gorzelik and Others v Poland (2005) 40 EHRR 4.
[8] Ekrem Can and Others v Turkey (No. 10613/10) Judgment of 8 March 2022.
[9] Taranenko v Russia (no. 19554/05) Judgment of 15 May 2014.
[10] R v Hallam and Others, Sentencing Remarks, 19 July 2024 < https://www.judiciary.uk/wp-content/uploads/2024/07/R-v-Hallam-and-others.pdf> [Accessed on 19 July 2024].
[11] R v Trowland and Decker, [2024] 1 WLR 1164, [50]-[56].
[12] R v Hallam and Others, Sentencing Remarks, [45].
[13] R v Hallam and Others, Sentencing Remarks, [6].
[14] R v Hallam and Others, Sentencing Remarks, [7].
[15] R v Hallam and Others, Sentencing Remarks, [36].
[16] Rai and Evans v UK (nos. 26258/07 and 26255/07) Judgment of 17 November 2009.
[17] Hyde Park and Others v Moldova (Nos.5 and 6) (nos. 6991/08 and 15084/08) Judgment of 14 September 2010.
[18] Kudrevicius v Lithuania (2016) 62 EHRR 34.
[19] Kudrevicius v Lithuania (2016) 62 EHRR 34.
[20] Chernega v Ukraine (2020) 70 EHRR 9.
[21] Ekrem Can and Others v Turkey (No. 10613/10) Judgment of 8 March 2022.
[22] Roger Hallam, ‘I’ve just been sentenced to 5 years in prison…’ X (formerly known as Twitter) (18 July 2024) <https://x.com/RogerHallamCS21/status/1813995764374450558> [Accessed on 18 July 2024].
[23] R v Hallam and Others, Sentencing Remarks, [Accessed on 19 July 2024], [87].
[24] Human Rights Act 1998, s.6.
[25] Human Rights Act 1998, s.3.
[26] Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, [32]-[33].
[27] The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 (SI 2023), SI 2023/655.
