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) overruled a custodial sentence against three protesters, convicted for public nuisance, who climbed on top of lorries and blocked a main road to protest against fracking. The Crown Court at Preston sentenced two of the defendants to 16 months’ imprisonment and the other to 15 months, considering that the demonstrators caused major disruptions over a wide area over a considerable length of time and were likely to reoffend due to their deeply held beliefs. Although the Court of Appeal argued that custodial convictions can be adequate punishments for non-violent crimes committed in the context of protests, in this specific case it noted that the demonstrators showed regret for their actions and that their beliefs did not necessarily entail they were likely to re-offend since they can manifest them in accordance with the law through peaceful demonstrations.
In January 2017, the company Cuadrilla was granted a licence —issued by the Oil and Gas Authority— to explore for gas by fracking at a site off Preston New Road, the A583, the main road that communicates Blackpool and Preston. On July 25, 2017, seven lorries, carrying special drilling equipment, travelled to the Cuadrilla site. Police officers were deployed to create a physical cordon around the lorries and enable them to arrive at their destination since there were many protestors in the vicinity who opposed fracking.
At 08:06, Richard Roberts managed to pass the police cordon and climbed on top of the cab of the first lorry of the convoy, which stopped. Shortly after, Richard Loizou climbed got through the police cordon, and “climbed on top of the cab of the last lorry” [p. 4] .Very quickly the traffic on the A583 road was completely blocked: one of the carriageways was obstructed by the convoy of lorries while the other was occupied by other protestors encouraged by and interested in Robert and Loizou’s activities. At 15:18, while the road was still blocked Simon Blevins climbed on top of another lorry. The road remained blocked until 17:00.
Loizou, the first to climb down from the lorry, did so at 05:10, 27 July, after 2 days; Blevins climbed down at 16:45, 28 July, after 3 days, and Roberts climbed down at 20:13 on that day, after 3 and a half days.
Thousands of people were inconvenienced by the closure of the road. The attention that Roberts, Loizou, and Blevins’ demonstration brought among like-minded demonstrators was a significant contributory cause for the road’s closure.
On August 22, 2018, Roberts, Loizou and Blevins were convicted by the Crown Court at Preston for the common law offence of public nuisance. According to the Crown Court, the demonstrators caused major disruptions over a wide area over a considerable length of time, thus causing harm to a very large group.
Although the Crown Court noted that there were mitigating factors for each one of the defendants —such as proof of their good character and lack of previous convictions—, it considered that a suspended sentence could not be issued and that the custody threshold was crossed. For this first instance court, the defendants were at risk of reoffending due to their deeply held beliefs.
On September 26, 2018, Roberts and Blevins were sentenced to 16 months of imprisonment, while Loizou was sentenced to 15 months. The defendants appealed this decision before the England and Wales Court of Appeal (Criminal Division).
Lord Burnett of Maldon delivered the opinion for the England and Wales Court of Appeal (Criminal Division). The main issues the Court had to analyze, pertaining to freedom of expression, were whether the custodial sentence for public nuisance against the appellants —who climbed on top of lorries transporting drilling equipment and blocked a road to protest fracking— was appropriate under domestic law and article 10 of the European Convention of Human Rights (ECHR), and if the custody threshold, in this case, was surpassed, in light of the demonstrator’s acts and circumstances, thus justifying a custodial sentence against the defendants.
The appellants argued that custodial sentences are never appropriate for non-violent crimes committed during peaceful protests, according to domestic law, and would violate Article 10 of the ECHR. Furthermore, they also argued that the first instance court “should have imposed a suspended sentence” [p. 2] since it erred by concluding that a custodial sentence was needed because the defendants were unsuitable for rehabilitation due to their unwavering beliefs against fracking and were likely to re-offend if given the opportunity.
Regarding the first issue, the Court explained that custodial sentences are in line with domestic law and the ECHR. Following the case law set forth in Hutchinson v Newbury Magistrates’ Court (2000) 122 ILR 499 and in R v Jones (Margaret)  1 AC 161 at , the Tribunal explained that in the context of a functioning state in which conflicts and social disputes regarding the law and government policies can be submitted to courts and peaceful and democratic arbitraments, the commission of criminal acts, in the context of protests, cannot be justified. Nonetheless, when sentencing, the conscientious motives of protestors can be taken into consideration to obtain a more benign treatment. The Court quoted Jones to state this point succinctly: “[Protesters] vouch the sincerity of their beliefs by accepting the penalties imposed by the law […] the magistrates impose sentences which take the conscientious motives of the protesters into account” [p. 6].
Subsequently, the Court referred to multiple decisions issued by the ECtHR, such as Steel and others v the United Kingdom (1999) 28 EHRR 603, Barraco v France (App. No. 31684/05), Drieman and others v Norway (App.No. 33678/96), Lucas v the United Kingdom (App. No. 39013/02), to argue that “[t]he Strasbourg jurisprudence does not support the proposition that detention is necessarily disproportionate for the conduct with which these appeals are concerned. On the contrary, the Strasbourg Court has accepted as proportionate both immediate sentences of imprisonment and suspended sentences in cases where the conduct in question caused less harm and was less culpable” [p. 11]. Thus, the Court concluded that the ECtHR marches with the domestic law when it comes to the possibility of criminally convicting demonstrators, although it specified that “the underlying circumstances of peaceful protest are at the heart of the sentencing exercise. There are no bright lines, but particular caution attaches to immediate custodial sentences” [p. 11].
The Court then analyzed if in this particular case, the custody threshold was surpassed by the defendants. According to the Tribunal, custody is only appropriate, pursuant to section 152 of the Criminal Justice Act 2003, “if the court considers that the offence (alone or in combinations with one or more other offences) is so serious that neither a fine nor a community sentence can be justified” [p. 11]. The Court of Appeal noted that the first instance judge concluded that the custody threshold was passed based on three reasons: 1) the widespread harm caused by the defendants’ actions due to the extended length of the protest, 2) the evaluation that the defendants’ conduct was culpable because they persevered in their actions and 3) the fact that the defendants’ were unrepentant “and adhered to their underlying views and convictions” [p. 11].
The Court held that although the defendants did cause widespread disruption, their underlying motivations and good character, allowed it to conclude that the custody threshold was not crossed. The Tribunal noted, in opposition to the first instance court, that “[t]he appellants expressed regret for what they had done and two of them recognised that their actions, that is to say the extended duration of the protest with its widespread impact, were (we paraphrase) unreasonable and irresponsible” [p. 12].
Even though the Court recognized that “for the purposes of sentencing to make a judgment about the risks of future offending, underlying motivations can be of great significance” [p. 12], it disagreed with the first instance in its assessment that the deeply held belief of the protestors against fracking was indicative of future criminal behaviour. The Court opined that people can have strong beliefs and be able to manifest them in accordance with the law, for example through peaceful protest.
Considering all these arguments, the Court granted the appeal and said that a custodial sentence was not called for: “A community sentence, with a punitive element involving work (or perhaps a curfew) would have met the justice of the cases” [p. 13]. Whilst the Court was inclined to issue this punishment, it also took into consideration the fact that the defendants had spent in custody three weeks, which already represented enough punishment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Court overruled a custodial sentence against defendants who participated in a peaceful protest. To reach this decision, it took into account the motivations and good character of the demonstrators while acknowledging the widespread negative impact that their protest had on other people. Nonetheless, the Court also held that criminal custodial convictions can be appropriate punishments for non-violent crimes committed in the context of protests.
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