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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Trowland & Anor, R. v  EWCA Crim 919 (31 July 2023)
Cite as:  EWCA Crim 919,  WLR(D) 349
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ON APPEAL FROM THE CROWN COURT AT BASILDON
His Honour Judge Collery KC
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE CUTTS
MRS JUSTICE THORNTON
| (1) MORGAN TROWLAND
(2) MARCUS DECKER
|- and –
Danny Friedman KC and Rebecca Martin (instructed by Hodge Jones & Allen) for the Second Appellant
Tom Little KC and Adam King (instructed by the Crown Prosecution Service) for the Respondent
Hearing date : 26 July 2023
Crown Copyright ©
Lady Justice Carr :
The consequences of the public nuisance and victim personal statements
i) Those who missed the funeral of a close friend or relative;
ii) Those who missed a medical appointment or therapy, leading to continued pain and/or additional distress;
iii) Those who lost wages and/or missed important client appointments;
iv) Work projects, such as a housing project for vulnerable people, delayed;
v) Children left waiting unattended;
vi) Loss of revenue. By way of example only, one business lost around £14,000 (including VAT) due to deliveries being missed and orders not being fulfilled. Staff still had to be paid and reputational damage was caused. Another business lost around £25,000 due to being unable to complete deliveries. Another (printing) business lost £4,000 to £5,000 in revenue.
The protesters' previous convictions and personal circumstances
|Date of offence
||Date of conviction||Offence||Facts||Plea||Sentence|
|1||18 April 2019||30 October 2019||Failing to comply with conditions imposed on public assembly
s. 14(5) Public Order Act 1986
|Extinction Rebellion Protest in Parliament Square. Fourth day of protests generally. Mr Trowland was sitting in the road with others. Police told him directly of s. 14 condition to disperse, or face arrest, and suggested he move to Marble Arch if he wanted to protest further. Given a two minute warning, then a further warning. Required to be carried on arrest.
||Not Guilty||Conditional Discharge - 9 months|
|2||5 September 2020||17 May 2021||Wilfully obstructing highway
s. 137(1) Highways Act 1980
|Arrested on 5th Sep 2020 for obstructing Great Eastern Road, Waltham Cross, Hertfordshire, outside printworks owned by News International. Group of approximately 50 Extinction Rebellion protesters, using two lorries, a bamboo structure, and tubes filled with cement, to block the road. Some had bedding, food and water.
||PNC: "No plea taken"||Fine - £150|
|3||6 April 2022
||15 February 23||Wilfully obstructing highway
s. 137(1) Highways Act 1980
|Present on top of a fuel tanker for 7 hours, which halted traffic on the Purfleet Bypass A1090.
||Not known||Fine - £200|
|4||8 April 2022||21 November 2022
(30 March 2023 was due for sentence, but was at trial at Basildon Crown Court for the Dartford offence)
|Wilfully obstructing highway
s. 137(1) Highways Act 1980
|On the highway (A1090 at Grays) in a group of approximately 50 others for approximately two hours, blocking traffic. Mr Trowland was seen gluing himself to the road.||Not known||Awaited|
|5||10 April 2022
||17 March 2023
s. 68(1) Criminal Justice and Public Order Act 1994
|Arrested at Askews Farm Lane, Purfleet. (approximately 200 meters from A1090). He was found by police in a secure site attached to fuel pipes above a tanker fuelling area.
||PNC: "no plea taken"||One day's detention at the courthouse|
|6||13 April 2022||11 July 2022||Wilfully obstructing highway
s. 137(1) Highways Act 1980
|Arrested on Purfleet Bypass A1090 for obstructing the highway. Mr Trowland climbed on top of a HGV lorry and displayed a "STOP THE OIL" banner. The lorry in fact contained a water treatment chemical rather than oil. This caused the lorry to be stationary blocking the road for approximately four hours.
||Guilty||Fine - £50|
|7||15 April 2022||24 March 2023||Wilfully obstructing highway
s. 137(1) Highways Act 1980
|Arrested at Askews Farm Lane, Purfleet (approximately 200 meters from A1090). Mr Trowland was found to be sitting on a man-made bamboo tripod in the road. He refused to come down when police appealed for him to do so. Heights team had to use specialist equipment to remove him safely.
||Not known||Fine - £100|
The trial and sentence
"By your actions you caused this very important road to be closed for 40 hours. This, of course, as you knew, obstructed many tens of thousands, indeed, hundreds of thousands of members of the public; some very significantly. Your obstruction continued over a significant period of time: that was your intention. Only then would there be massive disruption. Only then was it, in your assessments, newsworthy."
"…It is plain from your evidence that you do not see the risks as having reduced and the court is really concerned that you will continue to engage in such action as you see fit, despite the indications in your evidence that you will not. History indicates you are unreliable in that regard. You have been repeatedly released on bail and continue to offend."
Submissions on appeal
For the protesters
Ground 1: erroneous approach to sentencing
Ground 2: sentence manifestly excessive
i) The sentences are the longest ever handed down in a case of non-violent protest in modern times. By imprisoning a person for civil disobedience, the court is effectively banning them from any form of political expression;
ii) There is no sound basis for distinguishing from more lenient sentences to be found in domestic case law, including Roberts and Brown;
iii) The sentences cannot be lawful under the Human Rights Act 1998, because they depart radically from the ECHR jurisprudence;
iv) The judge double-counted the extensive planning, taking it into account both for culpability and for aggravating features.
Ground 3: failure to consider appropriate limb of offence
Ground 4: previous convictions and prospect of rehabilitation
Ground 5: deterrence
For the respondent
i) Relevant legal background and general principles;
ii) Alleged errors of principle in the sentencing exercise;
iii) Whether the sentences were manifestly excessive/disproportionate.
Relevant legal background and general principles
"78. Intentionally or recklessly causing a public nuisance
(1) A person commits an offence if —
(a) the person—
(i) does an act, or
(ii) omits to do an act that they are required to do by any enactment or rule of law,
(b) the person's act or omission—
(i) creates a risk of, or causes, serious harm to the public or a section of the public, or
(ii) obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and
(c) the person intends that their act or omission will have a consequence mentioned in paragraph (b) or is reckless as to whether it will have such a consequence.
(2) In subsection (1)(b)(i) "serious harm" means—
(a) death, personal injury or disease,
(b) loss of, or damage to property, or
(c) serious distress, serious annoyance, serious inconvenience or serious loss of amenity.
(3) It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for an act or omission mentioned in paragraph (a) of that subsection."
Alleged errors of principle; grounds 1, 3, 4 and 5
"I take the view that the sentence of imprisonment [is] justified even in the context of peaceful protests causing public nuisance. This is a conclusion consistent with jurisprudence in both Strasbourg and in this country."
"The real risk here is that if this worked and garnered media attention because of its scale and novelty, what will be the next novel protest to re-capture that interest? If novel is to be equated with massive disruption to the public, then attraction of that link needs to be broken. You have to be punished both for the chaos you caused and to deter others from seeking to copy you in that protest. Deterring you and others from actions that cause such a level of nuisance is an important aspect of this sentence."
Whether the sentences were manifestly excessive and/or disproportionate: ground 2
i) In Roberts, the defendants were protesting against fracking. On 25 July 2017 a number of protestors climbed on the top of a convoy of lorries transporting specialist drilling equipment along the A583 for use on a new fracking site in Preston New Road. Traffic on the A583 was brought to a standstill and the road was blocked in both directions from around 8am to around 5pm the same day. The police then established a contraflow which enabled vehicles to negotiate the blockage, although traffic was still disrupted. One carriageway remained blocked for 3 ½ days, when the last protestor came down from the lorry. The protest caused substantial and widespread disruption. This court allowed appeals against sentences of 15 and 16 months' immediate imprisonment. Community orders would have been imposed, but in the light of time served, conditional discharges were imposed;
ii) In Brown, the defendant was a protestor with Extinction Rebellion and part of a group that staged a protest at London City Airport. On 10 October 2019 he climbed on top of an aeroplane and glued himself to the fuselage, such that he had to be removed by police using a cherry picker crane. He was on the plane for around one hour; the event was filmed by other climate change protestors who were causing further disruption in the airport. The subsequent delay and disruption resulted in the aeroplanes' four scheduled flights being cancelled (on which 339 passengers had been booked) and the passing taxi space had to be closed. Two aeroplanes had to be moved, and six flights of other aeroplanes were delayed. This resulted in passengers missing birthday celebrations, family events and business meetings. The airline was reported as paying out approximately £40,000 in customer compensation. His appeal against a sentence of 12 months' immediate imprisonment was allowed; whilst it was accepted that the custody threshold was passed, and there was little prospect of rehabilitation, this court ruled that a sentence of only six months' imprisonment was appropriate. That term was reduced to four months to take account of the difficulties that the defendant would encounter in custody due to his visual impairment.
i) In Kudrevicius, a group of farmers, members of the "Chamber of Agriculture" group, staged a series of protests against the fall in wholesale prices for agricultural goods and lack of government subsidies for their production. Permits were issued allowing the farmers to protest peacefully; however, in breach of these permits, the farmers drove tractors on to three major highways for around 48 hours, blocking the road and causing major traffic disruption. The five applicants who participated in the demonstration were found guilty of public order offences and given 60-day custodial sentences, suspended for one year, and ordered not to leave their places of residence for more than seven days during that period without the authorities' prior agreement. The Grand Chamber upheld the sentences. It noted that although there was an interference with the applicants' Article 10 and Article 11 rights, the interference was prescribed by law, pursued a legitimate aim, and was proportionate. The disruption was not at the "core" of their Article 11 rights; it was not a side-effect of a meeting held in a public place, but intentional disruption to draw attention to problems in the agricultural sector;
ii) The case of Taranenko, to which we were also referred, involved a protest in a building used by Vladimir Putin. A sentence of 3 years' imprisonment, suspended for three years, was ruled to be a disproportionate interference with the applicant's Article 10 and 11 rights. The facts again are not comparable to the present case.
i) The sheer scale of the disruption and damage in this case went far beyond that caused by the offending in Roberts and Brown;
ii) The Article 10 and Article 11 protections are significantly weakened on the facts of this case, a feature not obviously discussed in Roberts or Brown;
iii) The defendants in Roberts were all treated as being of previous good character. Mr Brown had one previous conviction for wilful obstruction of the highway some three years prior, but little or no weight appears to have been attached to that. Here the protesters' past convictions (and bail status) are highly relevant.