Sentencing in Non-Violent Protests: The Role of Proportionality and Conscientious Motivation
Criminal Law
In R v Hallam and Others [2025] EWCA Crim 199, the English Court of Appeal considered the proper weight that ought to be given to the exercise of fundamental rights in passing a proportionate sentence on defendants who were convicted in connection with the “Just Stop Oil” protests about climate change issues.
Background
The appeals arose out of four cases, including: –
(a) The Thurrock Tunnels Case ([3]), where protesters occupied tunnels under the roads providing access to the industrial estate which includes the Navigator oil terminal in Thurrock, Essex, and caused the roads to be closed. They were convicted of conspiracy to cause a public nuisance and sentenced to up to 36 months’ imprisonment.
(b) The Sunflowers Case ([4]), where two protesters threw soup onto Vincent van Gogh’s painting known as “Sunflowers” in the National Gallery. They were convicted of criminal damage and sentenced to up to 24 months’ imprisonment.
(c) The M25 Conspiracy Case ([5]), where protesters climbed or attempted to climb onto various gantries across the M25 motorway. They were convicted of conspiracy to cause a public nuisance and sentenced to up to 5 years’ imprisonment.
(d) The M25 Gantry Climbers Case ([6]), where protesters (among those who climbed gantries over the M25 as part of the protest organised by the defendants in the M25 Conspiracy Case) pleaded guilty to causing a public nuisance and were sentenced to up to 24 months’ imprisonment.
Having granted leave to appeal against sentence, the Court proceeded to consider the substantive appeals.
The Applicable Legal Principles
General Approach to Sentencing in Non-Violent Protests
The correct approach to issues that may arise when sentencing in cases of non-violent protests, such as conscientious motivation and deterrence, was considered authoritatively in R v Trowland [2024] 1 WLR 1164, to which there was no challenge ([7(2)]). The Court emphasised that conscientious motivation was a factor relevant to sentencing, although it did not preclude a finding that any appellant’s culpability was still high ([26]).
In relation to the freedom of expression and peaceful assembly under Articles 10 and 11 of the European Convention on Human Rights (“ECHR”), the Court held that the fact that the appellants committed a criminal offence in communicating their message did not mean that their activity ceased to be an expression of their views ([28]). The Court adopted the well-established approach in analyzing the alleged violations of ECHR rights ([30]): –
(a) Whether the right is engaged by the facts of the case?
(b) Whether there has been an interference with the right?
(c) Whether the interference was “prescribed by law”?
(d) Whether the interference pursued a legitimate aim?
(e) Whether the interference was “necessary in a democratic society”?
In particular, the Court reiterated that “the assessment of proportionality applies at each stage, i.e. prosecution, conviction and sentence” ([30(v)].
Articles 10 and 11 and Trespass
Whilst Articles 10 and 11 of the ECHR did not confer any right of entry to private property, the Court held that a protester who committed an act of trespass would not “automatically” lose his rights under Articles 10 and 11 altogether ([34]). Although the appellants’ activities were not at the core of Articles 10 and 11, the Court did not consider that their acts of trespass “removed them completely from the scope of Articles 10 and 11”. Instead, the fact that their expression involved criminal trespass “significantly weakened” the protections of Articles 10 and 11 and the weight to be attached thereto in sentencing ([36]).
Articles 10 and 11 and Criminal Damage
If the appellants’ actions were violent or non-peaceful, Articles 10 and 11 would not be engaged. However, that is not the same as saying that they would not be engaged if the criminal damage was significant ([38]). Whilst criminal damage might be violent if it intimidates onlookers ([40]), on the facts of the Sunflowers Case, the Court found that the protesters’ actions while shocking were not violent. Articles 10 and 11 were therefore engaged (albeit significantly weakened) ([42]).
The M25 Conspiracy Case
According to the Court of Appeal, “[t]he fact that proportionality exercise had been conducted in relation to the prosecution of the offences did not, in itself, mean that proportionality did not also fall to be considered at the point where a sentence was to be passed. The proportionality of any interference with ECHR rights may be particularly relevant at the sentencing stage, even though the ECHR rights in question do not provide a defence to the charge” ([55]).
Further, the trial judge “took no account at all of the appellants’ conscientious motivation”, which is “a factor which may reduce culpability” ([81]). The judge also failed to consider the effect of Articles 10 and 11 at the sentencing stage: “When ECHR rights are engaged, the proportionality question must always be asked” ([82]). In the circumstances, the Court held that the original sentences were manifestly excessive.
The M25 Gantry Climbers Case
As the trial judge duly took into account the appellants’ conscientious motivation, the Court of Appeal was not persuaded that any of the sentences are manifestly excessive in that respect or that the engagement of Articles 10 and 11 rights called for more lenient sentencing. The offending was serious and out of all proportion with what was necessary for the exercise of Article 10 or Article 11 rights ([125]). Except for reducing 2 months’ imprisonment in the case of one particular appellant ([134]), the Court of Appeal dismissed all other appeals against sentence.
The Thurrock Tunnels Case
The Court of Appeal held that the trial judge had regard to both the appellants’ conscientious motivation and their ECHR rights, but decided to accord relatively little weight to these considerations. The judge was entitled to conclude that the appellants’ culpability was high ([149]). The Court dismissed all appeals against sentence.
The Sunflowers Case
Whilst the trial judge was in error in treating the conscientious motivation and Articles 10 and 11 as irrelevant matters ([177]), he was “fully entitled to place this offence in the high culpability category” ([179]). The Court dismissed all appeals against sentence.
Comparison with the Hong Kong Position
The judgment illustrated the latest English approach to sentencing in relation to non-violent protests causing serious disruption to the public. In particular, the English Court of Appeal confirmed that the commission of an offence per se does not completely remove the defendants from the protection of ECHR rights ([36]).
The English Court of Appeal’s ruling on conscientious motivation as a relevant factor in sentencing is in marked contrast with some decisions of Hong Kong Courts in recent years. For example, in respect of incitement to knowingly take part in an unauthorized assembly, the Court held that, given “the need for deterrence”, the weight attached to the defendants’ conscientious motivation was “not significant”: HKSAR v Chan Ho Wun [2021] HKDC 1100 at [106]. Similarly, the Court also rejected the reliance on the exercise of the right of assembly as a mitigating factor, holding that the defendant was “being punished for the very act of inciting others to participate in, or holding, an unauthorised assembly, which act is illegal and goes outside the permissible scope of the right”: HKSAR v Tam Tak Chi [2024] 2 HKLRD 565 at [171]. In respect of offences in relation to the desecration of the national anthem and the national flag, it was not apparent that motive was raised or discussed as a mitigating factor: see e.g. Secretary for Justice v Law Man Chung [2020] 4 HKLRD 954; 香港特別行政區 訴 徐凱駿 [2022] HKMagC 13; c.f. older cases like HKSAR v Koo Sze Yiu (No 2) [2014] 4 HKLRD 582, where the defendant’s motive was taken into account in sentencing.
With the latest development in R v Hallam, it is hopeful that Hong Kong Courts will also recognise that, as a matter of principle, the rights to the freedom of expression and the freedom of assembly are still engaged in the sentencing process even though they do not provide a defence to the charge. In cases concerning non-violent acts, the sentencing judge should give significant weight to the exercise of such fundamental rights in determining the proportionality of the sentence to be imposed.
Carter Chim
“Carter is a leading specialist in competition law in Hong Kong and is known for his deep legal knowledge in EU and Hong Kong competition law. He is a very collaborative and effective communicator, he gives pragmatic advice that addresses commercial realities and client sensitivities, and his persuasive style and ability to distill complex legal concepts into accessible language make him a compelling advocate.”
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Carter has acted in a number of landmark constitutional and administrative law cases before the Hong Kong Court of Final Appeal, including Secretary for Justice v Leung Kwok Hung [2021] HKCFA 32 (concerning the scope of parliamentary privilege enjoyed by a member of the Legislative Council in the course of proceedings).
General civil matters form a core part of Carter’s practice. Matters which he is regularly instructed to handle include winding up petitions (for the successful petitioner in Re Yuan Tong Global Financial Group Ltd [2021] HKCFI 1534), water leakage cases, property disputes, discrimination cases, and more.
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Jason Ko
Jason is a Charles Ching Scholar. He has been recognised by Legal 500 Asia-Pacific 2024 as a Rising Star in both “Commercial Disputes” and “Regulatory, Investigations and Crime” categories.
Since joining Chambers in 2019, Jason has acted in a wide range of civil and criminal matters, including successfully seeking injunctions restraining acts of harassment and defamation. He also acted for the defendant in the first Hong Kong trial of disclosing personal data without data subject’s consent, contrary to section 64 of the Personal Data (Privacy) Ordinance (Cap 486): HKSAR v Ip Anthony Chun Hin (WKCC 1638/2022) (led by Philip Dykes SC).
Recently, Jason acted for the successful Plaintiffs in civil contempt proceedings where the Defendant has acted in breach of an anti-harassment injunction order: Chuang’s China Investments Limited v Zhou Changchun [2023] HKCFI 2427 (with Mr Richard Yip).
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This article was first published on 16 April 2025.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.