Yes, five years in jail is too harsh, but the Just Stop Oil Five shouldn’t have done it | Sonia Sodha

It was “ a dark day ”, according to a UN special rapporteur. Others lamented “a gross miscarriage of justice” and “a farce” marking “a low point in British justice”. Such language would not have been hyperbolic had they been talking about the review highlighting the failings that left Andrew Malkinson jailed for 17 years for a crime he didn’t commit . Or a recent travesty of the single justice procedure , the expedited closed-door process that saw a woman dying from stage 4 breast cancer convicted for non-payment of a TV licence . But it was actually referring to the handing down of five- and four-year prison sentences to five Just Stop Oil activists for their role in masterminding four days of serious motorway disruption: if we are to believe them, a grave affront to the right to protest.

There are certainly questions about whether the sentences for their offences are proportionate or appropriate in the context of the wider criminal justice system. But to suggest that freedom of conscience creates an unlimited right to cause other citizens harm is to fail to engage with the nature of their offence. And, more broadly, to misunderstand what it means to live in a democracy where we enjoy a right to noisy protest, but are also bound by obligations to each other that are framed by the rule of law that applies to us all equally.

All five were closely involved with planning the disruption that occurred on four successive days in November 2022, in which Just Stop Oil protesters climbed up gantries around the M25. The judge found they caused over 50,000 hours of delay to road users at a total economic cost of almost £770,000, and a cost of more than £1m to the Met police alone . People missed funerals and flights; children with special educational needs were delayed on the way to school without their medication; someone with an aggressive form of cancer missed an appointment and had to wait two months for another one; people could not get to work on time and had to work extra hours for no extra pay.

Moreover, the judge said that if their plans as conceived had succeeded, the resulting disruption would have been “catastrophic”: mass road disruption across southern England with “major implications for food supplies and the maintenance of law and order, among other things”, including people’s access to life-saving emergency care.

Their champions say that the urgency of their crusade – to stop the world from extracting and burning fossil fuels by 2030 – justifies their planned actions. Roger Hallam, the ringleader who received the five-year sentence, has lauded himself as the most influential environmentalist since David Attenborough and compared himself to Martin Luther King . There is a legal precedent for allowing protesters to plead conscience as a defence against charges, and to treat it as a mitigating factor in sentencing, but in this case the judge declined to do both. The courts have been clear that leniency is conditional : “A sense of proportion on the part of the offenders in avoiding excessive damage or inconvenience is matched by a relatively benign approach to sentencing.” The judge argued that their conspiracy to cause extreme disruption, and the risk of harm including to the emergency services, excluded them from consideration for reduced culpability or lower sentencing . He also pointed to other aggravating factors including the fact all were on bail for other charges when they committed the offence. (All have previous convictions.)

Because he regarded their offence as more serious, the judge was consciously harsher than in a previous case of two protesters who closed the Dartford crossing for 40 hours]; their prison sentences were discounted by 25% (to three years and two years seven months) because of their motive (which the court of appeal described as “arguably generous”). Perhaps overly punitive, but it is hard to disagree that the right to protest is qualified. In this case, the protesters were by design setting out to cause their fellow citizens the maximum disruption possible. The police say Just Stop Oil has refused to work constructively with them in the context of offers to facilitate lawful protest . Treating them with excessive lenience would send a message that anyone who feels strongly about an issue – from Scottish independence to banning abortion – should feel free to shut down the motorway network to make their point. Moreover, Hallam has himself in the past implied getting jailed is an objective : “If you’re not in prison, you’re not in resistance.”

Hallam has in the past implied getting jailed is an objective: ‘If you’re not in prison, you’re not in resistance’

Next is the question of whether the sentences were too harsh, setting aside motivations. As well as the impact and intended impact, the judge relied heavily on the need for deterrence; he described them all as having crossed the line from “concerned campaigner to fanatic”; they had “appointed [themselves] as the sole arbiters about what should be done about climate change, bound neither by democracy nor the rule of law”. He pointed to their behaviour at the trial, calculated to disrupt the proceedings as much as possible, as evidence of their reoffending risk.

Many have fairly questioned whether the prison sentences should have been so long in the context of the wider system; someone taking part in violent disorder that caused serious harm would be sentenced to two to four years under sentencing guidelines, for example. The judge said if their plans had had the intended impact, their sentences would have been closer to the maximum of 10 years, which would put them on a par with the most serious, large-scale fraud cases . Unlike for most other offences, there are no sentencing guidelines for causing public nuisance, a common law offence before it became statutory in 2022, so judges have little guidance; sentences have become tougher since 2022, but so has the scale of organised disruption by groups like Just Stop Oil.

So at the very least there needs to be a review of sentencing in this area to check its proportionality. I would go further: these protesters committed a serious offence that justifies punishment, but does this have to mean prison? Prison is an expensive, finite resource that should be reserved for criminals who pose a serious risk to the community that cannot be otherwise mitigated; our prisons are overfull to the point they cannot fulfil their rehabilitation role and so are putting society at greater risk. Why not deprive non-violent offenders of their liberty through restrictive curfews monitored through electronic tagging instead?

But we should be clear that asking this question is quite distinct from the overwrought handwringing which posits that stopping people from self-indulgently crippling important national infrastructure is somehow an authoritarian abuse of democracy.

• Sonia Sodha is an Observer columnist

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