R v Hallam ~ M25 protests ~ conspiracy to intentionally commit public nuisance

A Law Commission report in 2015 recommended the replacement of the common law offence of public nuisance. Government took no action on this aspect of the report until the Police, Crime, Sentencing and Courts Act 2022 section 78.

The section is a new statutory offence of "Intentionally or recklessly causing public nuisance" and it has a maximum penalty of 10 years imprisonment. The section also provides a defence of "reasonable excuse" - see section 78(3). 

The 2022 Act was a further step

in placing ever-increasing restrictions on protest within England and Wales. This process perhaps began with the Public Order Act 1984 but numerous Acts since have contributed to the present-day law.

In 2023, Morgan Trowland and Marcus Decker were convicted of the section 78 offence and received sentences of 3 years and 2 years 7 months (respectively). The Court of Appeal held that those sentences were not manifestly excessive - Trowland &  Decker, R. v [2023] EWCA Crim 919 (31 July 2023) (bailii.org) and previous post 1 August 2023.

If two or more persons plan to commit serious criminal offences (such as section 78) they can be charged with conspiracy to commit the offence. The modern criminal law of conspiracy dates from the Criminal Law Act 1977. There is no need to analyse that further in this post save to note that the maximum sentence for conspiracy to commit an offence is the same as the maximum for commission of the offence itself. Whether we agree with that or not, it is the established policy of the law as set out by Parliament.

Five defendants Roger Hallam (58), Daniel Shaw (38), Louise Lancaster (58), Lucia Whittaker de Abreu (35). and Cressida Gethin (22) were tried and convicted for conspiracy to intentionally commit public nuisance. Their trial was held at the Crown Court at Southwark before HHJ Judge Christopher Hehir and a jury. 

All five were part of the "JUST STOP OIL" protest movement. Hallam was sentenced to 5 years imprisonment and the others to 4 years. The sentences were met with considerable public criticism - for example, A record sentence for a Zoom call, arrests for those holding signs outside. This is a blight on British democracy | George Monbiot | The Guardian

The Judiciary website has the published the sentencing remarks of HHJ Hehir - Rex -v- Hallam and others - Courts and Tribunals Judiciary (pdf - 23 pages). Please read them in full.

The remarks set out details of the conspiracy and the parts played by each defendant including, for some, acts taken to implement the agreement. The remarks also include details of the extensive disruption, costs incurred, and the problems caused for members of the public. It is also revealed that all five had previous protest-related convictions. The judge referred to the Trowland and Decker case and referred to the judgment as "a comprehensive review of the relevant domestic and and European jurisprudence."

There is no Sentencing Council guideline for the section 78 offence (let alone conspiracy to commit it) and this is a matter that the Council ought to attend to. The judge referred to the Sentencing Code which contains general principles.

During the trial, the judge imposed certain restrictions on the evidence that the defendants could bring to the jury regarding the impacts of climate change -  What restrictions are placed on defendants in climate protest trials? | Law | The Guardian.

It seems likely that there will be an application to the Court of Appeal. Whether such an application will relate to conviction, sentence, or both remains to be seen. 

The sentences are certainly high and public concern about them is, I think, justified but will they be considered by the Court of Appeal to be manifestly excessive given all the circumstances? 

Maybe there will be room for some reduction for some (if not all) of the individuals but the Trowland and Decker case suggests that it won't be by too much.

Links of interest:

The use of the new statutory public nuisance offence to prosecute political and environmental protest, Rabah Kherbane (doughtystreet.co.uk)

Protests - Potential offences during protests, demonstrations, or campaigns - Annex A | The Crown Prosecution Service (cps.gov.uk)

New laws to clamp down on disruptive protesters come into force - GOV.UK (www.gov.uk)

Media:

Five Just Stop Oil activists receive record sentences for planning to block M25 | Just Stop Oil | The Guardian

The Just Stop Oil sentences were just | Tony Dowson | The Critic Magazine