The harsh sentences handed down to Just Stop Oil are a logical result of Britain’s authoritarian turn against the protests

Five Just Stop Oil activists have been given lengthy prison sentences for organising a direct action on the M25, London’s main ring road. A non-violent protest that has no parallel in modern times.

The five-year jail term for Roger Hallam and the four-year jail term for the other four, Daniel Shaw, Louise Lancaster, Cressida Gethin and Lucia Whittaker de Abreu, has been widely criticised as disproportionate. A snap poll found that 61 per cent of the public thought the sentences were too harsh.

But no one should be surprised: these sentences are the logical consequence of the authoritarian turn that Britain has taken against protests over the past five years.

In England and Wales, protests were previously judged in courts under what is known as the Hoffmann Pact. This meant that protesters had to admit their guilt in court, but their professional conscience – as well as the wider importance of disruptive protest to democracy – would be rewarded with lenient sentences.

The situation changed with the prosecution of the Stansted 15, who were charged and convicted of terrorism-related offences for stopping a deportation flight in 2017. The 15 were sentenced to community service, fines and, for some, short suspended prison sentences. On appeal, the Court of Appeal dismissed the charges in 2021, but at the same time toughened the courts’ general approach to protest, confirming that a key defence (known as necessity) was not available to defendants who protested in court.

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Read also: The appeal of the 15 Stansted protesters: a hollow victory for the right to demonstrate?

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Making it harder for activists to defend themselves

Since then, three things have happened. First, other potential defences available to protesters, including lawful excuse, have been systematically restricted by the Court of Appeal.

Second, the Crown Prosecution Service (CPS) has sought, where possible, to bring more serious charges against protesters than was previously the case. It has been encouraged in this by new laws passed by the last government, including the Police, Crime, Sentencing and Courts Act (2022) and the Public Order Act (2023).

Third, judges have generally sought to control and reduce the time defendants have in court to explain their motives to the jury, because – without a legal defense – the defendants’ arguments are, in legal terms, irrelevant.

We saw each of these dynamics in the Just Stop Oil “Conspiracy 5” trial. Prior to 2018, the concept of public disorder was rarely used for protest-related offences, but the CPS now regularly brings this charge against peaceful protesters. But the charge of conspiracy to cause public disorder, which these five defendants faced, is a new escalation in that it treats protest as a criminal enterprise and does not allow for a lawful excuse. As a result, the stakes are higher and the consequences more serious.

In court, the defendants were unable to argue that they had a legal excuse for their actions (Hallam repeatedly attempted to argue this in court, but the trial judge repeatedly refused to do so). Finally, although the defendants were able to explain their motives to the jury, the jury was not given the opportunity to find them not guilty as a matter of law. While juries still have the power to find defendants not guilty based on a moral rather than a legal decision, this is much more difficult and rare.

The result is that the first part of Hoffmann’s pact is abandoned. Having no recourse to defense, defendants who protest are now regularly found guilty. But the second part of the pact, leniency in sentences, is increasingly forgotten.

A new reference

In April 2023, Just Stop Oil activists Morgan Trowland and Marcus Decker were sentenced to three years and two years and seven months in prison respectively after being convicted of disorderly conduct for disrupting the Dartford Crossing, a major bridge over the River Thames in east London. Upheld by the Court of Appeal, these sentences have now become a benchmark.

In Conspiracy 5, the trial judge explicitly cited this criterion as the basis for the sentences he imposed, and any appeal against those sentences will have to take into account the Court of Appeal’s decision that they were fair.

This case highlights two very opposing views of what a trial is and what criminal law is for. Courts actually treat protest trials like a legal flowchart, with a strict distinction between what is relevant and what is not on the shortest path to a verdict.

But defendants often view courts as a place where they can make urgent arguments about moral values ​​and social justice. Rather than a public nuisance, they view their actions as a public service. By failing to allow defendants to be properly accountable for their actions, courts create an artificial separation between law and politics and undermine the democratic role of juries.

By imposing prison sentences on nonviolent protesters, they are imposing authoritarian responses to pressing social problems.