This article belongs to the debate » Kleben und Haften: Ziviler Ungehorsam in der Klimakrise
08 August 2023

(In)tolerance to Civil Disobedience in the UK

In the UK, civil disobedience “has a long and honourable history”, as Lord Hoffmann famously said in R v Jones (Margaret)1). He went on:

‘[p]eople who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example … It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account.’

These are undoubtedly fine words. But, as Lord Justice Toulson said in a different case, fine words butter no parsnips.2) For a while, even as late as a few years ago, peaceful protesters – even those who caused significant disruption – were treated leniently by the courts, rarely if ever being imprisoned.  But recent judgments and legislation suggest that the days of toleration for civil disobedience are over.

Hardly a week goes by in the UK without a high-profile story about civil disobedience, generally arising from the environmental movement. Last week, Greenpeace activists covered the Prime Minister’s family home in ‘oil black’ fabric to protest the recent granting of new oil licences. Recently, the Just Stop Oil group  has blocked roads, disrupted major sporting events and thrown soup at a Van Gogh painting.

Meanwhile, the courts have been taking an increasingly stringent approach to the sentencing of deliberately disruptive protesters. On 31 July, the Court of Appeal (the second highest appellate court) upheld3) what it accepted were ‘severe’ prison sentences – three years and two years seven months’ imprisonment respectively – handed down to two Just Stop Oil protesters who had climbed, and caused the 40-hour closure of, a bridge on a major motorway ((R) Trowland).

The judgment was handed down by the incoming Lord Chief Justice, Lady Justice Carr, and it contains a number of important signals for both protesters and judges considering the many hundreds of cases which are likely to be in the judicial pipeline in the coming months.

Three developments

Why are the courts taking what appears to be a more stringent approach to sentencing? There have been three closely connected legal developments which have, taken together, fundamentally changed the legal position of peaceful protest in the UK.

First, in the past two years there has been a glut of new legislation aimed at making it harder for protest movements to do what they traditionally do – organise protests and capture public attention with direct action. There have been three important pieces of legislation in as many years.

The Police, Crime, Sentencing and Courts Act 2022 (‘PCSCA’) made it possible for the police to impose conditions on, including banning, public processions and assemblies which were ‘noisy’, or disruptive in other ways such as causing ‘prolonged disruption’ to various everyday activities. A new statutory offence was also created for causing public nuisance. Previously, this had been a common law offence, and the Law Commission had recommended it was placed on a statutory footing. But the sting in the tail, which was highlighted by the sentencing of the motorway bridge protesters, was the maximum 10-year prison sentence for the new offence. The maximum sentence for obstructing the highway was also increased from a fine to 51 weeks imprisonment.

Then came the Public Order Act 2023, creating new offences of ‘locking on’ and ‘being equipped for locking on’. ‘Locking on’ is widely defined as a person ‘attaching themselves to another person, to an object or to land’. Being equipped for locking on means having ‘an object’ with the intention of using it for locking on. Days after the legislation was introduced, it was used to arrest and detain republican activists who were found with luggage straps which they say were for transporting protest signs to the coronation of King Charles III.

The 2023 Act also introduced a power to search protesters without suspicion if a senior officer believes offences such as locking on ‘may’ be committed in an area. It additionally introduced ‘serious disruption prevention orders’, which give courts powers to order serial disruptors not to associate with other protesters, enter town centres etc. – a tactic which has previously been used to prevent gang violence, terrorism and drug dealing.

In recent months, a new regulation (made under the PCSCA) made it even easier for police to impose conditions on processions and assemblies, lowering the threshold (which had only just been lowered by the PCSCA) further to any protest which an officer reasonable believes may cause a ‘hindrance that is more than minor’ to everyday activities. This could in theory include walking the dog or meeting a friend for a coffee. I commented that the change gives police an almost unlimited discretion to limit peaceful protest and would likely have a chilling effect on protest generally.4)

Persons unknown injunctions 

A second development is the rapid growth of the use of civil injunctions to restrain protest activities.

Until 20 years ago, it was necessary to name a defendant to an injunction granted to protect private rights. A case about a Harry Potter book changed that, in a ruling that made it possible for an injunction to apply to anyone who did the thing which the injunction prohibited. This judgment was swiftly taken up by landowners who could not identify protesters trespassing on their land but wanted to obtain an injunction preventing the protest activities.

For a number of years, such anti-protest injunctions were limited to small areas, for example a few meters outside of a shop selling animal furs or the entrance to a fracking site. However, more recently, ‘Mega Person Unknown Injunctions’ (my term) have been granted to prevent protest activities on huge areas of land. There are currently, for example, injunctions preventing protest along the entire proposed route of the High Speed 2 railway project, running for hundreds of miles. An even larger one was granted which applies to anyone protesting on the ‘strategic road network’ of 4,300 miles.

Anyone breaching an injunction can be held in contempt of court, with penalties of an unlimited fine or up to two years’ imprisonment. In the first contempt case relating to protesters (in which I acted), about a protest outside of a fracking site, the Court of Appeal approved suspended rather than immediate prison sentences. Lord Justice Leggatt (as he was then), citing R v Jones and highlighting the history of leniency towards civil disobedience, emphasised that ‘greater clemency’ should be shown towards those who are found to be ‘[e]schewing violence and showing some measure of moderation in the level of harm intended, and who are ‘engaged in a form of political action undertaken on moral grounds rather than in mere criminality’.5)

More fine words – but in the three years since Cuadrilla, few parsnips have been buttered. Road blocking protests have led to a number of protesters receiving immediate prison sentences. In a case relating to Insulate Britain6), nine defendants received immediate prison sentences of between three and six months for breaching an injunction preventing protest on the M25 motorway. Dame Victoria Sharpe, President of the (then) Queen’s Bench Division, said7) that ‘[i]n a democratic society which recognises the right to freedom of peaceful assembly, protests causing some degree of inconvenience are to be expected and, up to a point, tolerated’. However, she went on:

‘Ordinary members of the public have rights too, including the right to use the highways. The public’s toleration of peaceful protest depends on an understanding that, in a society subject to the rule of law, the balance between the protestors’ right to protest and the right of members of the public to use the highways is to be determined not by the say-so of the protestors, but according to the law … these defendants broke the social contract under which in a democratic society the public can properly be expected to tolerate peaceful protest…’

In imposing the sentences, the Court highlighted the apparent lack of remorse, and the fact that unlike in previous cases such as Cuadrilla, harm was not the by-product of the protest; its very objective was to cause harm and disruption to as many ordinary members of the public as possible to bring attention to the cause the defendants advocated’.8)

In another case, involving breaches of the HS2 injunctions, protesters were given long sentences including 268 days imprisonment, perhaps the longest yet, buttressed by a £43,000 costs order.9)

Increased sentences for disruptive protest

The third development is the approach now being taken to the sentencing of non-violent protest in the criminal courts, as exemplified by the recent judgment in R (Trowland) – the motorway bridge case.

In that case, the appellants pointed out that the sentences under appeal were the longest ever handed down in a case of non-violent protest in modern times. The Court of Appeal accepted they were ‘severe’ but did not consider them ‘manifestly excessive’ (the test on appeal).

Lady Justice Carr highlighted a number of factors when justifying the decision, including that: (1) the ‘sheer scale of disruption and damage’ went well beyond that in previous cases where leniency had been shown10) and disrupted hundreds of thousands of members of the public11), (2) disruption was the central aim of the protesters’ conduct, as opposed to a side-effect of the protest, therefore weakening Article 10 and 11 ECHR protections (the rights to freedom of expression and of assembly respectively) and distinguishing it from previous cases12), (3) the protesters’ apologies ‘rang hollow’, (4) there was now an increased need for deterrence, because ‘supporters of organisations such as Just Stop Oil have staged increasingly well-orchestrated, disruptive and damaging protests in the context of a ‘pressing social need to protect the public and to prevent social unrest arising from escalating illegal activity’,13) (5) at the time of the events, both protesters were on police bail for similar offences14), (6) both had at least one relevant antecedent15), and (7) the sentences ‘reflect[ed] Parliament’s will’ as they were under the new statutory public nuisance offence which, as described above, attracts sentences of up to 10 years imprisonment.16)

(In)tolerance to protest

Disruptive environmental protest has become a hugely controversial issue in the UK, both politically and legally. It is likely to be a wedge issue in the upcoming General Election. Both major political parties are talking tough on the issue, and the government has instituted draconian new laws. The courts, for their part, are permitting ever more Mega Persons Unknown injunctions and imposing increasingly longer prison terms for peaceful – but disruptive – protests.

Part of this is an international trend, caused by the indisputable evidence of global warming and the increasingly activist environmental movement.17) But from a UK practitioner’s perspective, it is deeply worrying that there are now a large number of peaceful protesters in the prison system, or facing huge bills for legal costs, or both. If the judgment in R (Trowland) is anything to go by, this is just the beginning. The wave of environmental direct-action protests is increasing in size, and is already crashing against the rocks of harsh and broad new anti-protest legislation. I have no doubt that many more protesters will enter the prison system soon, potentially leading to martyrdom and radicalisation – so, contrary to the government’s intentions, leading to more, not less, public disruption.

It is no great surprise that the courts have changed their previously lenient approach when the issue is protests whose very aim is public disruption. The Insulate Britain and Just Stop Oil protests are generally aimed at the public at large, not (as, for example, with the recent Greenpeace protest) government and companies. They often cause very significant disruption, and the courts obviously feel – and explicitly say – that they are protecting the public interest by deterring similar future actions.

However, one might ask whether the courts’ previous statements on showing leniency towards civil disobedience now mean anything at all. There is always a risk of viewing the actions of previous successful protest movements through rose-tinted glasses. The women’s suffrage campaign, which is often held up as a paradigmatic ‘good protest movement’ (for example in R v Jones), could be highly disruptive and sometimes violent. The logic of treating non-violent protesters more leniently than other people breaking the criminal law is that history shows that society benefits from social movements, which are often disruptive and – as today – place themselves in the crosshairs of public criticism and government intolerance.

The courts today talk of protesters breaching the ‘social contract’, require that they act with ‘proportion’, and that they express genuine remorse. But if you speak to anyone on the more radical edges of the environmental movement, they will say that they are fulfilling the social contract by highlighting – in a non-violent way – the imminent threat of environmental destruction. They do not, in my experience, show the kind of remorse that the courts demand of them because they do not feel any, and are generally not the kind of people who say things which they do not mean for personal gain. I wonder whether the courts have now set the bar of the ‘civil disobedience discount’ so high, and added so many provisos and exceptions, that it is essentially unachievable, and unreal in the current, or any, protest context.

Arguably, Parliament also bears some of the blame for the increasing radicalisation of these groups by making it so difficult to organise large scale, ‘traditional’ protests without running the risk of being arrested or charged with overly broad offences such as ‘coming equipped for locking on’. Ultimately, peaceful political protest should be addressed by politicians. The current government has decided, by making disruption of ‘everyday life’ a criminal act, that it is a matter not of politics but for the police and criminal law. This will have serious implications for society, and for f