Why the Just Stop Oil judgment is so dangerous

I've been shocked for days at the Just Stop Oil judgment, sentencing protestors to what has been called the longest prison sentence for non-violent protest in UK history.

So I - admittedly a non-UK-lawyer, but a human rights practitioner - took the time to read through the judgment and get a thorough understanding of the legal basis and sentencing reasoning. See the PDF here.

Here's my thoughts on why the judgment is outrageous and seriously restricts freedom of expression and assembly - trying to stay only rooted in reasoning that uses the framework of the law. If you have any information that I may have missed, do comment below!

The judge cites only a single precedent - in a common law legal system that is fully based on interpreting previous case law.

That case (available here) involved another 2 activists from Just Stop Oil, who climbed above a bridge and occupied it for 41 hours. This was the first such case under the 2022 law on police and sentencing, which was extremely controversial and analysed as detrimental to the freedom of assembly. For more, see here.

The only case the judgment cites as a precedent was therefore the first case under the law - and the judge of that first case puts forward extremely inconsistent and almost vindictive reasoning.

In both cases, precedent and current, the fact that the protest was sophisticated and well-planned was considered an aggravating factor. Rather than considering the risk assessment (which the judge acknowledges) in the precedent case as a mitigating circumstance, the judge finds malice in the offence - claiming that since the protestors went ahead nonetheless and deliberately sought disruption, they deserve a harsher sentence. In the precedent, having done a media training, having informed the police beforehand, and doing risk assessments all were considered as bad.

In deciding a sentence for the precedent case, the judge refers to older protest cases in which the defendant got 12 and 15 months - and, without any coherent link, decides that 3 years would be an appropriate sentence. The judge in the present case uses this yet again as a reason to argue that Hallam and the others deserve 4 and 5 years in prison.

Sentencing is by definition an extremely arbitrary exercise - it is, simply said, not grounded in logic. In a previous project, I spent months researching sentencing practices; the report can be found here.

There were two main lessons that emerged:

1. There are no guidelines, anywhere in the world, for how legislators should decide how much punishment to inscribe in law. Human rights law says it shouldn't be "too much" and that it should be "proportionate", but that's it. The Council of Europe merely recommended that the sentencing should be "coherent". This means that legislators have a free reign to legislate on a whim, as was the case with the present law in the UK, which was to be a strong expression of conservative opinion.
2. Sentencing guidelines for courts have equal vagueness - leaving it up to judges to decide, on a case by case basis, how to hand out punishments that legislators arbitrarily set.

The judges in the present cases made it very clear in writing: Their punishment and sentencing does not seek to rehabilitate or reform. Instead, they wanted a punishment that would serve as a deterrent, as per their own words.

The judge in the precedent case writes that the sentencing should be particularly harsh, given the claim that "harm caused was high". However, there is no case made of "high" harm that sounds in any way like a legal argumentation - rather the judge says the protest "caused inconvenience". This simply does not equate to "harm".

In summary: The only precedent cited in the sentencing of Roger Hallam and others is itself built on illogical and arbitrary grounds. The judge then argues that the sentencing of Hallam must be even harsher than the already arbitrary sentence in the precedent, as this "was a conspiracy to cause extreme and disproportionate disruption". In no place has the judge legally established that the disruption indeed was "extreme", which is a term that must have been defined in precedent at some point in British case law.

This all is for the crime of "conspiracy for public nuisance" - not causing personal injury or harming someone's bodily integrity. It was entirely non-violent, and intended to take place without physical harm to people - something made clear by the activists.

For context, did you know that the maximum punishment for assaulting an emergency worker is 2 years - a violent crime where hundreds of lives could also be put at risk as a consequence?

While the judge accused Hallam and the co-defendants of ignoring rule of law, the judgment to me seems to rest on arbitrary grounds, be guided by the whim of a single vindictive judge, and be disproportionate to the crime committed - all grounds for me to assert that this violates the ECHR fundamental guarantee of the right to peaceful assembly.