I began writing this blogpost weeks before the widespread violence and disorder which engulfed the streets of the UK in early August. My task was to review how the new public order legislation, the Police, Crime, Sentencing and Courts Act 2022 and Public Order Act 2023, was being used and what it tells us about the right to freedom of assembly in the UK. I will begin looking at that before turning to the more recent far-right protests.
As this new legislation is beginning to make its presence felt across the UK, the chilling effect it could have on non-violent protests is palpable. The new statutory offence of intentionally or recklessly causing a public nuisance under the Police, Crime, Sentencing and Courts Act 2022, in particular, has given rise to some unprecedented sentences for non-violent, disruptive protests. The Just Stop Oil protestors, Morgan Trowland and Marcus Decker, who scaled the Queen Elizabeth II Bridge and closed the Dartford crossing for almost 2 days, received hefty sentences of 3 years and two years and seven months respectively. The shocking length of these sentences was surpassed recently when five environmental activists were convicted for their roles in blocking parts of the M25, an orbital motorway around London, over a period of four days in November 2022. One of the protestors, Roger Hallam, the co-founder of the Just Stop Oil environment group, was sentenced to five years in prison for his role in the protest. The other four in the group were each sentenced to four years.
The right to protest is not unlimited. Articles 10 and 11 of the European Convention on Human Rights are protected in the UK by the Human Rights Act 1998. They guarantee the right to freedom of expression and assembly, but they are qualified rights, which must be balanced against other rights and public interests in their exercise. Many have argued that the length of the sentences imposed on these protestors should be commensurate with the scale of the disruption caused. There is certainly merit to that argument. It seems to have animated the judges sentencing in these cases. When the Court of Appeal reviewed the sentences imposed in Trowland and Decker, they considered “the more disproportionate or extreme the action taken by the protester, the less obvious the justification for reduced culpability and more lenient sentencing”. When they took into account the appellants’ level of culpability, the location of the offending, the “extent of human suffering”, disruption and economic damage, their offending histories and the need for punishment and deterrence, they considered the sentences imposed struck a fair balance and were not disproportionate. They were “severe, but not manifestly excessive or disproportionate”. The sentencing remarks in the Hallam case observed that their position was “far more serious” than Trowland and Decker’s involving a “conspiracy going beyond a single act of protest, however disruptive”. The court considered their prior offending, the fact that they were breaching injunctions and the disruption they intended to cause before imposing the lengthy sentences in that case. Yet one cannot shake the feeling that the sentences are excessive. Where the court goes astray in Hallam, in my view, is where it states:
I do not regard your status as non-violent direct action protesters as affording you any particular mitigation. […] Parliament introduced the statutory offence of causing a public nuisance in the context of increasing non- violent protest offending.
Now to an extent the court is taking its lead from Parliament here, but that position is clearly at odds with the European Court of Human Rights. The European Court of Human Rights has recognised that “the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of an interference” with the right to protest. Criminal sanctions “require particular justification” and a “peaceful demonstration should not, in principle, be rendered subject to the threat of a criminal sanction and notably to deprivation of liberty.” It has explicitly stated that it “must examine with particular scrutiny the cases where sanctions imposed by the national authorities for non-violent conduct involve a prison sentence”. The UK appears to be on a collision course with Strasbourg over this issue, especially given that the sentences imposed in Hallam represent only half of the maximum sentence available under the legislation and that the sentences appear to be increasing as times goes on.
When I came to revise this blogpost following the riots which engulfed parts of the UK at the beginning of August 2024, I was struck by several things. Firstly that the new legislation, specifically designed to “protect the public from criminality at protests” was hardly used at all in responding to the criminality of the far-right protestors in the UK. I scoured countless reports of charges and convictions resulting from the events of recent weeks and found charges for violent disorder and affray under the Public Order Act 1986, charges for criminal damage levied against looters under the Criminal Damage Act 1971, and assault charges under the Offences Against the Person Act 1861.
Other new measures in the legislation were also not used. Section 11 of the Public Order Act 2023 introduced powers to stop and search people without suspicion where there is a reasonable belief that different protest offences “may be committed” in a designated area, such as wilful obstruction of a highway, intentionally or recklessly causing a public nuisance or locking on. I could not find instances of these new powers being used, with the police instead utilising Section 60 of Public Order and Criminal Justice Act 1994 which is designed to combat gang violence and allows police to stop and search people within a designated area without suspicion where there is a reasonable belief that violence may occur and weapons will be used. Section 60 is clearly the most appropriate tool for the job, but it seems like the police already had the necessary powers to protect the public from criminality at protests without the need for this new legislation.
Finally, I was struck by the disparity in sentencing between the sentences for non-violent disruptive protests like Hallam and Trowland and those handed down to violent thugs attacking the police and others. Admittedly many of the more serious cases will take time to filter through to the crown court and heavier sentences may follow, but the optics at this point are jarring. One of “the main instigators of a large scale disturbance” during the far-right protests in Hartlepool received a sentence of 2 years and two months. Another who was “at the front of what was essentially a baying mob” in Southport received a sentence of 2 years and 8 months. All of these sentences were shorter than those given to Hallam and his counterparts and Trowland. If there is any truth to the narrative that there are two tiers to policing and justice surrounding protest in the UK, on this evidence at least, non-violent protestors are treated more harshly than violent mobs. Many of the far-right protestors should consider themselves lucky they did not face charges of riot or even the newly created public nuisance offence rather than violent disorder, because the conditions for those offences appear to have been met in many of the cases and they carry a maximum sentence of 10 years instead of the maximum 5 for violent disorder. Ultimately the new laws are resulting in harsh sentences for non-violent protests but have limited utility in the context of the recent violent protests we have seen. It is worth questioning whether the objective of the legislation to protect the public from criminality at protests is being met when the police are resorting to older powers to address criminality at protests. The sentences imposed on the Just Stop Oil protestors may also draw the attention of Strasbourg, especially when the sentences imposed on leaders of violent mobs actually attacking the police in the streets are lower. The new legislation is fit for purpose, if the purpose is to deal harshly with non-violent protestors trying to draw attention to an existential crisis. When it comes to dealing with the recent far-right protests, it seems those are a public nuisance of an entirely different kind.
Stuart Wallace.
Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.