James Brown, the Extinction Rebellion protestor and partially sighted paralympian who glued himself to the top of a plane has had his prison sentence reduced from twelve to four months by the Court of Appeal. “Yay! for kindly Lord Chief Justice Burnett!” I hear you cry, maybe. Well actually it ain’t that good. Let’s look at what the judgement says and what it bodes for the sentencing of protesters in future.
Now, protesters accused of violence are often sent to jail, and need our support more as they lack well off woolly-minded liberal supporters (see Bristol Defendants Solidarity for how to help some of those). However “peaceful protesters” have not been jailed in the Largebritainisland for a long time and it’s not a good trend. Jail is not nice and while protesters show amazing resilience in custody there are also those on whom it has very deleterious effects. There is also a significant difference between deliberately courting imprisonment as with those defying high court injunctions and people prosecuted for crimes where they can’t opt out later by saying sorry.
In the last such jailing case of Roberts from 2018, representing the defendants Kirsty Brimlow QC mentioned that it was the first imprisonment of non-violent protesters since the Kinder Scout trespass of 1932, in fact longer as they were actually convicted of riot. The Truck Surfers in that case were also done for Public Nuisance and got up to 16 months in prison but the Court of Appeal quashed the jailing and said a community punishment would have been appropriate. So how come the same top judge could come to a different view now?
When Judge Perrins at Southwark Crown Court dished out a year in this case we thought it was because he was in a big sulk because a jury had recently let off other XR protesters and trusted that the Court of Appeal would slap him down and restore normal business. This impression grew when James was let out just before Christmas after doing 10 weeks inside. That proved he shouldn’t have got more than a five month sentence and we hoped none at all. Lord Burnett, chairing the panel of three judges, is probably the most liberal Lord Chief Justice in living memory, and since those before living memory did nowt but hang, flog and transport to Australia everyone that came before them, probably of all time. Frankly he has let protesters down, let legal support down and most of all let himself down.
So to the sentence that the Lord Chief thinks he should have got and how it differs from the Truck Surfers’ case. Firstly although he accepts Judge Perrins sentence was “manifestly excessive” he broadly accepts his reasoning process and says it was difficult because of little precedent and no sentencing guidelines. The key differences mentioned were the greater disruption caused, not being remorseful and therefore likely to reoffend plus previous convictions and committing the offence while on bail for another protest. This got them to a view that six months was appropriate and then there was a further reduction because Mr Brown’s time in prison would be worse because of his disability, compounded by the prison service not giving him his glasses for six weeks!
There was also an appeal against the conviction itself. On six different grounds! None of which cut any ice with the appellate panel. Lacking the space to consider them properly let’s just say while we are having a good run with Juries at the moment but convincing Judges to let people off ‘cos they’re “doing the right thing” is a harder sell, see para 29 in particular.
So in total a careful reading of the judgement doesn’t represent a significant shift in the legal position. Imprisonment of peaceful protesters should be reserved for the most intractable reprobates. However the signal it gives is clearly to rebut the impression some have drawn from the case of Ziegler (obstructing the highway outside an arms fair) that protesters are allowed to break the law or at least from Roberts that they won’t go to jail. To the Magistrates and Judges sentencing this not only provides a green light to locking up activists but practically makes it very hard to challenge as the court of appeal will only overturn sentences it considers manifestly excessive not just too severe. Even getting an appeal heard before the release date will be difficult and as you may have guessed there is no compo for time served that was later ruled too much.
James’s lawyers are planning an appeal to the Supreme Court. But that will not be easy. Even getting permission to appeal is not guaranteed. So cross your fingers and toes that Raj Chada of Hodge Jones & Allen solicitors and his legal team pull off another spectacular forensic coup, but get prepared for a new normal where short prison sentences for peaceful protesters are a regular occurrence.
Image: Chris Jerrey/XR