Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Mixed Outcome
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The England and Wales Court of Appeal (Criminal Division) upheld a conviction for public nuisance against James Hugh Brown —who glued himself to the top of a plane at London City Airport as an act of protest— while quashing his 12 months’ imprisonment sentence and substituting it for a four months one. The defendant considered that he was wrongly prosecuted for public nuisance (a common law offence) when his conduct fell squarely in the scope of other less severe statutory offenses, such as aggravated trespass. Brown also considered that his sentence was disproportionate. The Court considered that the defendant’s conduct sought to cause major disruption and that it was correct to charge him with public nuisance. When analyzing the sentence’s duration, the Court took into consideration that although the defendant’s behavior was reprehensible, it took place amidst peaceful protests, which justified a shorter punishment. The Court also bore in mind the defendant’s visual disability to reduce the sentence.
James Hugh Brown, a well-renowned paralympic athlete who is substantially visually impaired, was part of a group of climate activists associated with Extinction Rebellion. On October 10, 2019, he participated in a coordinated protest at London City Airport. Brown bought a ticket to Amsterdam and entered the airport as an ordinary passenger. Because of his disability, Brown was allowed to enter the aircraft first. He clambered up the aircraft’s door and climbed on top of it. He then superglued his hand to the fuselage of the plane operated by British Airways.
Other members of the group glued themselves to the departure gates “and also sought to disrupt the Docklands Light Railway” [para. 5]. These activities were coordinated through the use of Whatsapp. Brown was filmed in the terminal by a fellow protester who live-streamed part of his protest.
Eventually, a staff member used a debonding agent to unglue Brown and remove him from the aircraft. He was on top of the aircraft for more than an hour.
The flight to Amsterdam was canceled and the plane was taken out of commission for the day to check its door and roof. Four additional flights were canceled, affecting 339 passengers, and six other flights were delayed.
On July 28, 2021, Brown was convicted by the Crown Court sitting at Southwark for the common law offense of public nuisance. On September 24, he was sentenced to 12 months of imprisonment.
Brown appealed this decision before the England and Wales Court of Appeal (Criminal Division)
On 14 January 2022, Lord Burnett of Maldon delivered the opinion for the England and Wales Court of Appeal (Criminal Division). The main issue concerning freedom of expression that the Court analyzed was whether the first-instance judge erred in convicting Brown for public nuisance when less severe alternative statutory offenses were available to prosecute him. The Court also studied if the 12 months’ imprisonment sentence laid upon the appellant was adequate.
According to the appellant, prosecution for the common law offence of public nuisance was an abuse of process considering that there were alternative offenses that the prosecuting authorities could have applied as a proportionate response to Brown’s activities, such as aggravated trespass, whose maximum penalty is three months. In theory, the maximum penalty for public nuisance is life imprisonment.
Thus, the appellant argued that the decision issued by the Southwark Crown Court erred in failing to stay the prosecution, since Brown’s conduct fell squarely in the scope of other offenses, and that the prosecution pursued a common law offense to circumvent “the maximum penalties for those other offences” [para. 14]. Furthermore, the appellant also argued that prosecuting him for the aforementioned common law offence was disproportionate under articles 10 and 11 of the European Convention on Human Rights.
Moreover, Brown’s defense alleged that the sentence was too long and hence disproportionate since it didn’t consider the appellant’s disability and that the offense was committed amidst a protest.
The Court began its argument by explaining the abuse of power doctrine. According to it, a stay should be ordered where “the defendant cannot have a fair trial,” [para. 16] or when it’s “necessary to protect the integrity of the criminal justice system” [para. 16]. The Court then referred to the case law set forth in R. v. Stockli, where abuse of power was analyzed in the context of demonstrations. In that case, it was held that a prosecution for public nuisance brought with the purpose of seeking a longer conviction than the one established for a statutory offence —which covers the same ground— can be considered an abuse of power. Nonetheless, in that case it was also argued that courts should be slow to interfere with prosecutorial decisions taken in good faith “where there is no suggestion that the respondents could not receive a fair trial” [para. 19]. As such, the decision to stay can be issued when the justice system is under threat and not merely where good practice was not followed.
Subsequently, the Court concluded there were good reasons to prosecute the appellant for public nuisance instead of trespassing. For it, the statutory offence of trespassing, as laid out in section 68(1) of the Criminal Justice and Public Order Act, “does not require there to be any adverse effect on a section of the public or serious disruption to activities. It suffices that a person is a trespasser on land and that he has the intention to do one of the proscribed things, for example to obstruct another person’s lawful activity” [para. 22].
The Tribunal considered there was a serious disruption, caused by the acts of Brown, to the public’s right to use the airport due to the canceling and delays in flights. For the Court, this was well beyond the scope of aggravated trespass and justified that the prosecution be brought for the common law offence of public nuisance.
Upon analyzing the proportionality of the decision to prosecute the appellant for public nuisance, the Court referred to the case law of Director of Public Prosecutions v. Ziegler. According to it, the prosecution of peaceful protesters can amount to a restriction of their rights under the ECHR. Nonetheless, the Court said, this decision does not immunize protesters from arrest and further criminal prosecution, it only entails that restrictions on these rights must be justified and proportional.
For the Court, the appealed decision “did have regard to the Convention rights. In his ruling refusing the application to stay, [the lower court] expressly concluded that the prosecution was compatible with the Convention, in particular that it had a legitimate aim and that it was proportionate because it was necessary in a democratic society” [para. 38].
The Tribunal then argued that it was true that the offence of public nuisance carried a significantly higher sentence than the offence of trespass. However, the Court explained, this did not necessarily entail, in case of conviction, a higher sentence. To further this point, the Court cited R v. Roberts. This case rejects the notion “that those convicted of any offence in the course of protest should never receive a custodial sentence in the absence of violence against the person but accepted that ‘the motivation of an offender can go to increase or diminish culpability’” [para. 42].
Following the case law set forth in this case, the Court also held that the jurisprudence of the Strasbourg Court marches in line with the common law when it comes to considering proportional detentions in the context of protests and suspended sentences “in cases where the conduct in question caused less harm and was less culpable” [para. 62].
The Court then analyzed (1) whether the appellant’s offending acts surpassed the custody threshold and (2) if his 12 months’ imprisonment were excessive.
Regarding the first point, the Court agreed with the lower court that this was the case. The Court extensively reproduced the lower court reasoning which held that the right to protest does not entitle demonstrators to cause major disruptions in the lives of others. The Tribunal agreed with the lower court in that the appellant caused major disruptions, had in the past previously been convicted for obstructing a highway, and “considered the risk of reoffending to be high and that, given the opportunity, the appellant would commit further acts of disruption” [para. 63].
Moreover, the Court also considered “that there was no real prospect of rehabilitation and noted that immediate custody would not have a significant harmful impact on others” [para. 64].
When examining the second point, the Tribunal considered there were mitigating factors that justified a shorter sentence. The Court held that considering “the context of peaceful protest […] but also recognising that [the appellant] was not of good character we have concluded that a sentence of about six months’ imprisonment would have been appropriate” [para. 68]. The Tribunal specified that this new sentence bears into consideration that Brown’s conduct aimed at causing wide disruption and that “[t]he right to peaceful protest should not lead to tolerance of behaviour that is far removed from conveying a strongly held conviction but instead seeks to cause chaos and as much harm as possible to members of the public” [para. 68].
Furthermore, the Court opined that there was one more reason to reduce the sentence even more. Due to the appellant’s visual impairment, the Tribunal considered that his disability “would make life in prison more difficult for him than for someone without” [para. 69]. Thus, the Court, in light of all the circumstances, considered more appropriate a 4 months’ imprisonment sentence.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although this decision effectively reduced the sentence of the appellant —who was arrested and prosecuted for acts committed during a peaceful protest—, it also upheld the validity of criminal prosecution in this type of cases. In doing so it failed to analyze the proportionality of less intrusive restrictions on freedom of expression —such as fines or other administrative sanctions— and did not consider the potential chilling effect on protests and freedom of assembly that criminal sanctions have.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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