Just Stop Oil jail terms raise questions over harsh treatment of protesters

The lengthy jail terms handed to five supporters of the Just Stop Oil (JSO) climate campaign on Thursday – believed to be the longest ever meted out in the UK for non-violent protest – have sent shock waves through the protest community an d beyond.

The five-year sentence for Roger Hallam and four-year terms imposed on Daniel Shaw, Louise Lancaster, Lucia Whittaker De Abreu and Cressida Gethin are being seen by many as the latest heavy-handed response to protesters, particularly those urging action on the climate crisis.

Related: Celebrities add voice to outcry over severity of Just Stop Oil sentences

The sentences have also prompted comparisons with those for other crimes and suggestions they may even breach the European convention on human rights. Although comparing sentences is an imperfect science, it throws up some striking contrasts. As a widely shared post on X shows, for crimes of violence against the person the average sentence is 1.7 years , while for robbery it is four years.

It is important to point out that the sentences of the JSO activists are at the top end of the scale for non-violent protesters (ie not averages), which is precisely why they are so controversial, but the human rights barrister Adam Wagner said on X: “It seems indisputable that the sentences for these kind of non-violent but (highly) disruptive protests have been increasing very quickly.”

Individual comparisons, while also imperfect, can also pose questions. Can it be right that protesters who forced closure of a motorway will be locked away for so long, when in March a woman was given a six-month suspended sentence for causing death by careless/inconsiderate driving?

The JSO protesters were convicted of conspiracy to commit public nuisance under section 78 of the controversial Police, Crime, Sentencing and Courts Act (PCSCA), which was criticised as a wholesale attack on the right to protest .

It carries a maximum 10-year sentence, although the previous highest sentences are believed to be the three years and two years and seven months respectively given to the JSO protesters Morgan Trowland and Marcus Decker for scaling the Dartford Crossing .

Notably, the judge, Christopher Hehir, said the 10-year maximum sentence – or something near it – would have been called for in the case of Hallam and his co-defendants if the disruption had caused gridlock but that he still took into account not only the harm they caused “but also the harm you intended to cause”.

In mitigation, lawyers (all defendants went unrepresented during the trial and only three instructed counsel of mitigation) brought up the contrast between the sentences being discussed and those for violent disorder, another serious protest offence, which carries a maximum term of five years.

But Hehir’s response was effectively that it was “the will of parliament”. He said in his sentencing remarks: “I do not regard your status as non-violent direct action protesters as affording you any particular mitigation. As the court of appeal criminal division pointed out in Trowland and Decker, parliament introduced the statutory offence of causing a public nuisance in the context of increasing non-violent protest offending.”

The statutory public nuisance offence replaced a common law offence, which carried no maximum sentence (effectively life imprisonment) so it could be said that it is more lenient, but the fact that protest sentences have been increasing suggests that is not the effect.

After the statutory offence was introduced, the barrister Rabah Kherbane wrote : “The common law offence of public nuisance was traditionally, and frequently used to prosecute significant environmental offences. This included air pollution and the release of noxious substances by corporations or individuals that caused real harm to the general public.

“There is no irony lost in the fact the same offence in statutory form is now being zealously deployed to prosecute environmental protesters.”

Kherbane is a barrister at Doughty Street Chambers, which Keir Starmer co-founded. Now all eyes are on the prime minister to see if he will explore changing the PCSCA .