Roberts, Blevins and Loizou [2018] EWCA Crim 2739, [2019] 1 WLR 2577
Summary
Roberts, Blevins and Loizou v R [2018] EWCA Crim 2739, [2019] 1 WR 2577 is an appeal by the Lord Chief Justice, Mr Justice Phillips and Mrs Justice Cutts concerning three men convicted of common law public nuisance arising from a direct action protest against hydraulic fracturing near Blackpool. The appellants, Mr Richard Roberts, Mr Simon Blevins and Mr Richard Loizou, were convicted by a jury in the Crown Court at Preston on 22 August 2018 before His Honour Judge Altham and sentenced on 26 September 2018 to immediate custodial terms of 16 months for Mr Roberts and Mr Blevins and 15 months for Mr Loizou. The Court of Appeal heard urgent applications for leave on 17 October 2018, granted leave and allowed the appeals, substituting conditional discharges for two years. The Court concluded that immediate custody was manifestly excessive and that the appropriate sentence was a community order with unpaid work, but that the three weeks already served made a conditional discharge the proper course.
On 25 July 2017 a convoy of seven lorries carrying specialist drilling equipment for Cuadrilla, which held an Oil and Gas Authority licence to explore for shale gas by fracking at a site near the Preston New Road (A583), travelled from Immingham Docks to the site. The police were given about 15 minutes’ advance notice. At 08:06 Mr Roberts climbed through the police cordon and onto the top of the first lorry’s cab; shortly afterwards Mr Loizou climbed onto the last lorry. Both carriageways of the A583 quickly became blocked, partly by the convoy and partly by other protestors drawn by the appellants’ actions. Mr Blevins climbed onto a third lorry at 15:18. The police deployed 75 officers and established diversions. The road was entirely blocked until about 17:00, when a contraflow was established. Mr Loizou came down after just under two days on 27 July; Mr Blevins came down after just over three days on 28 July; Mr Roberts came down after three and a half days late on 28 July. The blockage and subsequent contraflow caused very significant and widespread disruption to thousands of people including local residents, businesses, bus services and emergency transport. A fourth man, Mr Brock, pleaded guilty and received a suspended sentence after remaining on his lorry for just over three days.
The judge sentenced on the basis that the appellants were responsible only for the disruption they directly caused. He found their culpability high, rejecting the suggestion that they were naive or sorry for the disruption. He emphasised that what could have been a protest that made its point became a significant public nuisance because the appellants persisted in their conduct for several days, placing their belief in their own correctness above the interests of the wider public. The judge concluded that the harm, although modest to each individual, affected a very large group over an extended period. He took account of the positive good character of each appellant: Mr Loizou, aged 31 and self-employed in environmental education, had no previous convictions; Mr Blevins, aged 26 and a research scientist, had no previous convictions though he committed a vehicle tampering offence during the investigation period; Mr Roberts, aged 36, a piano tuner and Open University student, had a minor conviction from 2005. The judge found that the custody threshold was crossed and that the sentences could not be suspended. He rejected the conclusion in pre-sentence reports that there was no real risk of reoffending, stating that each appellant remained motivated by an unswerving confidence in the rightness of their cause, that their expressions of remorse came only after conviction, and that there was no real chance of rehabilitation.
The appellants advanced four grounds of appeal. First, they contended that an immediate custodial sentence is never appropriate for a non-violent crime committed as part of peaceful protest as a matter of domestic law and would breach Article 10 of the European Convention on Human Rights. Secondly, they argued that even if the custody threshold had been passed the judge should have suspended the sentence, wrongly treating their strongly held beliefs as evidence of persistent future risk rather than recognising their expressions of regret. Thirdly, they submitted that the sentence was manifestly excessive because much of the disruption was caused by the concurrent actions of other protestors rather than solely by the appellants’ occupation of the lorries. Fourthly, information obtained after sentencing raised a question of apparent bias concerning the judge’s family connections to businesses allegedly linked indirectly to the fracking industry. The Court declined to hear argument on the fourth ground, which had arisen very shortly before the hearing and required investigation of the facts, though it summarised the evidence relied upon. The assertion was that the judge’s sister was a director of a family grocery and ship stores business that since 2000 had supplied offshore gas and oil platforms in the Irish Sea, where Centrica (a substantial investor in Cuadrilla) was said to be a dominant firm, and that the sister had signed an open letter in 2014 supporting fracking. The judge was not a shareholder in the business and there was no evidence he knew of any connection, remote as it was. The Court observed that the test for apparent bias in Porter v Magill [2002] 2 AC 359 required consideration of whether a fair-minded and informed observer would conclude there was a real possibility of bias, and that if a sibling signing such a letter disqualified a judge the implications would be significant and would cut both ways in environmental cases.
The Court held that the offence of public nuisance, defined in R v Rimmington [2006] 1 AC 459 as doing an unlawful act or omitting a legal duty so as to endanger the life, health, property or comfort of the public or to obstruct the public in the exercise of rights common to all subjects, is a serious offence of a different order from temporarily obstructing the highway. It rejected the first ground of appeal, holding that there is no principle of domestic or Convention law that peaceful protest in the absence of violence can never attract immediate custody. The Court noted the wide range of offences that may be committed in the course of peaceful protest, carrying various maximum sentences, and explained that sentencing must always consider harm and culpability with reference to the aims of punishment, deterrence and rehabilitation. The motivation of an offender can diminish culpability, and committing non-violent crimes in the course of peaceful protest does not generally impute high levels of culpability. The Court quoted extensively from the speech of Lord Hoffmann in R v Jones (Margaret) [2007] 1 AC 161, which observed that civil disobedience on conscientious grounds has a long and honourable history, that a civilised community accommodates protests provided protestors behave with a sense of proportion and accept the penalties imposed, and that the police, prosecutors and magistrates respond with restraint and sentences that take conscientious motives into account. Lord Hoffmann’s observations, the Court explained, recognise that the conscientious motives of protestors will be taken into account at sentence but reflect a mutual understanding: a sense of proportion in avoiding excessive damage or inconvenience is matched by a relatively benign approach to sentencing. The Court emphasised that Lord Hoffmann’s dicta do not support a bright line between custody and non-custody and that public nuisance is a serious offence suggesting the protestor has not kept his side of the bargain.
The Court observed that the long-established recognition in the United Kingdom of the value of peaceful protest is a manifestation of the importance attached by the common law to the right to protest and free speech, as reflected in decisions such as Hubbard v Pitt [1976] 1 QB 142, and that this importance is also reflected in Articles 10 and 11 of the European Convention on Human Rights. Both are qualified rights permitting restrictions prescribed by law and necessary in a democratic society for the prevention of disorder or crime or the protection of the rights of others. Direct action protests fall within the scope of Articles 10 and 11. The Court reviewed Strasbourg jurisprudence, in particular Taranenko v Russia (Application No 19554/05), which restated that contracting states have wide but not unlimited discretion in punishing illegal conduct intertwined with expression or association, and that the European Court must examine with particular scrutiny cases where sanctions for non-violent conduct involve a prison sentence. The Strasbourg Court has accepted as proportionate both immediate and suspended sentences of imprisonment in cases where conduct caused less harm and was less culpable than in the present appeals, including short terms in Steel and others v United Kingdom (1999) 28 EHRR 603 and a suspended sentence and fine in Barraco v France (Application No 31684/05). The Court concluded that the Strasbourg jurisprudence does not support the proposition that detention is necessarily disproportionate for conduct of this kind, but that particular caution attaches to immediate custodial sentences in the context of peaceful protest.
Turning to the facts, the Court held that the judge was in an unrivalled position to evaluate the extent of disruption for which the appellants were responsible and that his conclusion was not undermined by detailed examination of pieces of evidence. The Court accepted that the judge did not penalise the appellants for their beliefs, which would have been wrong, but considered that underlying motivations can be significant when assessing the risk of future offending. The pre-sentence reports showed that Mr Roberts had expressed guilt and remorse after hearing evidence at trial and had decided before the verdict to move away from the protest group. Mr Loizou expressed regret and accepted he had been disabused of his assumptions about local support during the trial. Mr Blevins claimed remorse but continued to justify his actions, calling into question its extent. The Court respectfully disagreed with the judge’s unqualified view that the appellants would offend again, observing that time would tell. Taking into account the good character of the appellants and their underlying motivation, and notwithstanding the widespread disruption for which they were responsible, the Court concluded that the custody threshold was not crossed. A community sentence with a punitive element involving work or perhaps a curfew would have met the justice of the case. A community sentence is a serious penalty, and non-compliance can lead to resentencing or activation of a suspended sentence. A person with strongly held beliefs remains free to manifest them lawfully while subject to such an order. However, because the appellants had by the time of the hearing spent three weeks in custody, equivalent to serving six weeks, the Court concluded that it would not be appropriate to impose a community order with a punitive element and that the time served represented adequate punishment. The conditional discharge imposed provided some protection to the public against repeat offending without adding further active punishment.
In short, the Court of Appeal held that immediate custody was manifestly excessive for this public nuisance committed during peaceful protest, that the appropriate sentence was a community order but that the three weeks already served justified substituting conditional discharges for two years.
On 25 July 2017 a convoy of seven lorries carrying specialist drilling equipment for Cuadrilla, which held an Oil and Gas Authority licence to explore for shale gas by fracking at a site near the Preston New Road (A583), travelled from Immingham Docks to the site. The police were given about 15 minutes’ advance notice. At 08:06 Mr Roberts climbed through the police cordon and onto the top of the first lorry’s cab; shortly afterwards Mr Loizou climbed onto the last lorry. Both carriageways of the A583 quickly became blocked, partly by the convoy and partly by other protestors drawn by the appellants’ actions. Mr Blevins climbed onto a third lorry at 15:18. The police deployed 75 officers and established diversions. The road was entirely blocked until about 17:00, when a contraflow was established. Mr Loizou came down after just under two days on 27 July; Mr Blevins came down after just over three days on 28 July; Mr Roberts came down after three and a half days late on 28 July. The blockage and subsequent contraflow caused very significant and widespread disruption to thousands of people including local residents, businesses, bus services and emergency transport. A fourth man, Mr Brock, pleaded guilty and received a suspended sentence after remaining on his lorry for just over three days.
The judge sentenced on the basis that the appellants were responsible only for the disruption they directly caused. He found their culpability high, rejecting the suggestion that they were naive or sorry for the disruption. He emphasised that what could have been a protest that made its point became a significant public nuisance because the appellants persisted in their conduct for several days, placing their belief in their own correctness above the interests of the wider public. The judge concluded that the harm, although modest to each individual, affected a very large group over an extended period. He took account of the positive good character of each appellant: Mr Loizou, aged 31 and self-employed in environmental education, had no previous convictions; Mr Blevins, aged 26 and a research scientist, had no previous convictions though he committed a vehicle tampering offence during the investigation period; Mr Roberts, aged 36, a piano tuner and Open University student, had a minor conviction from 2005. The judge found that the custody threshold was crossed and that the sentences could not be suspended. He rejected the conclusion in pre-sentence reports that there was no real risk of reoffending, stating that each appellant remained motivated by an unswerving confidence in the rightness of their cause, that their expressions of remorse came only after conviction, and that there was no real chance of rehabilitation.
The appellants advanced four grounds of appeal. First, they contended that an immediate custodial sentence is never appropriate for a non-violent crime committed as part of peaceful protest as a matter of domestic law and would breach Article 10 of the European Convention on Human Rights. Secondly, they argued that even if the custody threshold had been passed the judge should have suspended the sentence, wrongly treating their strongly held beliefs as evidence of persistent future risk rather than recognising their expressions of regret. Thirdly, they submitted that the sentence was manifestly excessive because much of the disruption was caused by the concurrent actions of other protestors rather than solely by the appellants’ occupation of the lorries. Fourthly, information obtained after sentencing raised a question of apparent bias concerning the judge’s family connections to businesses allegedly linked indirectly to the fracking industry. The Court declined to hear argument on the fourth ground, which had arisen very shortly before the hearing and required investigation of the facts, though it summarised the evidence relied upon. The assertion was that the judge’s sister was a director of a family grocery and ship stores business that since 2000 had supplied offshore gas and oil platforms in the Irish Sea, where Centrica (a substantial investor in Cuadrilla) was said to be a dominant firm, and that the sister had signed an open letter in 2014 supporting fracking. The judge was not a shareholder in the business and there was no evidence he knew of any connection, remote as it was. The Court observed that the test for apparent bias in Porter v Magill [2002] 2 AC 359 required consideration of whether a fair-minded and informed observer would conclude there was a real possibility of bias, and that if a sibling signing such a letter disqualified a judge the implications would be significant and would cut both ways in environmental cases.
The Court held that the offence of public nuisance, defined in R v Rimmington [2006] 1 AC 459 as doing an unlawful act or omitting a legal duty so as to endanger the life, health, property or comfort of the public or to obstruct the public in the exercise of rights common to all subjects, is a serious offence of a different order from temporarily obstructing the highway. It rejected the first ground of appeal, holding that there is no principle of domestic or Convention law that peaceful protest in the absence of violence can never attract immediate custody. The Court noted the wide range of offences that may be committed in the course of peaceful protest, carrying various maximum sentences, and explained that sentencing must always consider harm and culpability with reference to the aims of punishment, deterrence and rehabilitation. The motivation of an offender can diminish culpability, and committing non-violent crimes in the course of peaceful protest does not generally impute high levels of culpability. The Court quoted extensively from the speech of Lord Hoffmann in R v Jones (Margaret) [2007] 1 AC 161, which observed that civil disobedience on conscientious grounds has a long and honourable history, that a civilised community accommodates protests provided protestors behave with a sense of proportion and accept the penalties imposed, and that the police, prosecutors and magistrates respond with restraint and sentences that take conscientious motives into account. Lord Hoffmann’s observations, the Court explained, recognise that the conscientious motives of protestors will be taken into account at sentence but reflect a mutual understanding: a sense of proportion in avoiding excessive damage or inconvenience is matched by a relatively benign approach to sentencing. The Court emphasised that Lord Hoffmann’s dicta do not support a bright line between custody and non-custody and that public nuisance is a serious offence suggesting the protestor has not kept his side of the bargain.
The Court observed that the long-established recognition in the United Kingdom of the value of peaceful protest is a manifestation of the importance attached by the common law to the right to protest and free speech, as reflected in decisions such as Hubbard v Pitt [1976] 1 QB 142, and that this importance is also reflected in Articles 10 and 11 of the European Convention on Human Rights. Both are qualified rights permitting restrictions prescribed by law and necessary in a democratic society for the prevention of disorder or crime or the protection of the rights of others. Direct action protests fall within the scope of Articles 10 and 11. The Court reviewed Strasbourg jurisprudence, in particular Taranenko v Russia (Application No 19554/05), which restated that contracting states have wide but not unlimited discretion in punishing illegal conduct intertwined with expression or association, and that the European Court must examine with particular scrutiny cases where sanctions for non-violent conduct involve a prison sentence. The Strasbourg Court has accepted as proportionate both immediate and suspended sentences of imprisonment in cases where conduct caused less harm and was less culpable than in the present appeals, including short terms in Steel and others v United Kingdom (1999) 28 EHRR 603 and a suspended sentence and fine in Barraco v France (Application No 31684/05). The Court concluded that the Strasbourg jurisprudence does not support the proposition that detention is necessarily disproportionate for conduct of this kind, but that particular caution attaches to immediate custodial sentences in the context of peaceful protest.
Turning to the facts, the Court held that the judge was in an unrivalled position to evaluate the extent of disruption for which the appellants were responsible and that his conclusion was not undermined by detailed examination of pieces of evidence. The Court accepted that the judge did not penalise the appellants for their beliefs, which would have been wrong, but considered that underlying motivations can be significant when assessing the risk of future offending. The pre-sentence reports showed that Mr Roberts had expressed guilt and remorse after hearing evidence at trial and had decided before the verdict to move away from the protest group. Mr Loizou expressed regret and accepted he had been disabused of his assumptions about local support during the trial. Mr Blevins claimed remorse but continued to justify his actions, calling into question its extent. The Court respectfully disagreed with the judge’s unqualified view that the appellants would offend again, observing that time would tell. Taking into account the good character of the appellants and their underlying motivation, and notwithstanding the widespread disruption for which they were responsible, the Court concluded that the custody threshold was not crossed. A community sentence with a punitive element involving work or perhaps a curfew would have met the justice of the case. A community sentence is a serious penalty, and non-compliance can lead to resentencing or activation of a suspended sentence. A person with strongly held beliefs remains free to manifest them lawfully while subject to such an order. However, because the appellants had by the time of the hearing spent three weeks in custody, equivalent to serving six weeks, the Court concluded that it would not be appropriate to impose a community order with a punitive element and that the time served represented adequate punishment. The conditional discharge imposed provided some protection to the public against repeat offending without adding further active punishment.
In short, the Court of Appeal held that immediate custody was manifestly excessive for this public nuisance committed during peaceful protest, that the appropriate sentence was a community order but that the three weeks already served justified substituting conditional discharges for two years.