Public Nuisance and Conspiracy are as old as the hills — what’s changed is the convention that peaceful protesters are treated leniently

Yesterday (July 18) five Just Stop Oil activists were jailed for a total of 21 years for a plan to block the M25 motorway in London. It a huge jump as prior the longest sentence we can recall for a peaceful protest case was 6 months. That was for swimming in front of the Boat Race, where the big issue was finding a trial judge who hadn’t been to Oxbridge.

While a shock, it’s not a surprise. Most of all, beware of anyone who says it’s a “new law” brought in by the Tories. Public Nuisance and Conspiracy are as old as the hills. What’s changed is the convention that peaceful protesters are treated leniently.

In 2022 the previous government enacted a long time proposal of the Law Commission to make Public Nuisance a statutory offence. A quick reminder: “conspiracy” is simply an agreement to commit an offence (Criminal Law Act 1977). You can Conspire to commit any criminal offence from murder to dropping litter but it must be tried in the Crown Court before a jury so is rarely used for trivial offences. It carries the same maximum penalty as the crime you’re accused of agreeing to do. See this article in Freedom by Carl Spender.

Mass arrests on demonstrations for the same offence, most recently at the State Opening of Parliament, are also of concern. Youth Demand had 10 people arrested for allegedly conspiring to disrupt the event. Now while arrests are not charges, and charges aren’t necessarily convictions, a crucial feature is what the stated intentions of the group are. What matters is not whether the event was disrupted or even if an attempt to disrupt it was made. It’s whether there was an agreement to try and disrupt it. If you plan a protest, and disruption or even serious violence occurs, that does not make you guilty of an offence. Thus, there were no conspiracy charges brought against the organisers or the large Mayday protests in the early 2000s.

Oddly, the change from the Common Law conspiracy offence to the one passed by Parliament reduced the maximum penalty from life imprisonment to 10 years, but it has allowed the Court of Appeal (CoA) to state that lengthy prison sentences are justified because our elected representatives (most now out of a job) passed the law. In the case of Trowland, the CoA upheld a three-year sentence for sitting on the Dartford Bridge Crossing — so don’t expect much from an appeal against the sentence, especially as the judge in that case, Lady Carr, is now the Lord Chief Justice and head of the CoA. The Labour Party made no pledges to reverse this in their manifesto and no party becomes more supportive of protest in government than when they were in opposition. If we are to get it overturned it requires pressure from outside Parliament. In the end there is no Justice, just us.

During the trial, the defendants made a major issue out of not being allowed to speak as they wished to the jury, or give evidence on the climate emergency. This led to some run ins with the judge. Some of their supporters were arrested for allegedly seeking to influence the jury to give a perverse verdict based on their conscience rather than the facts of the case and the Law as set out by the Judge. Whether this was the best strategy to get an acquittal is doubtful in my view — despite juries at Southwark Crown Court having a reputation for being some of the most sympathetic to protesters in the whole of merry England. What is clear is that you can’t have your Law and eat it. You can denounce the legal system and take the consequences, or play along with its conventions and hope to be treated sympathetically, But you can’t expect leniency while also saying it’s a stitch up.

I have a lot of sympathy for those organising radical protest, but I am also mindful of Machiavelli’s observation as to why the Romans did not punish their generals for failure. It is a grave responsibility and it is incumbent on anyone planning actions to give participants the best possible chance against state repression. Hopefully this is a moment for activists to abandon the philosophy of getting people deliberately arrested and then convicted and imprisoned. While we’re all keen to support prisoners and see the end of our barbaric carceral system, there are over 9 million people in jail on this planet and those who didn’t want to be put there have first dibs on our solidarity.

~ Andy Meinke