The consequences of protest

Nigel Hewitson outlines the criminal law relating to property damage by protesters. Just Stop Oil’s campaign to draw attention to climate change issues has evolved with the changing law developing to deal with its activities. The organisation first came to public awareness by blocking roads in London. As the government legislated to prevent protestors disrupting daily life in this way, the campaign has shifted to staging headline-grabbing stunts in public places. This has included throwing soup over Van Gogh’s Sunflowers painting at the National Gallery, launching confetti onto the court at Wimbledon to disrupt a tennis match, and disrupting the World Snooker Championships by pouring orange powder onto snooker tables. In a move that will be of concern not just to organisers of sporting and cultural events but to landowners generally, Just Stop Oil’s latest protest saw two individuals spraying orange powder onto Stonehenge, a scheduled monument recognised by Unesco as a World Heritage Site. This was apparently deliberately timed to occur on the eve of summer solstice celebrations. The protest has been roundly condemned by politicians of all parties. Prime minister Rishi Sunak described the actions as “a disgraceful act of vandalism to one of the UK’s and the world’s oldest and most important monuments”. Labour leader Keir Starmer, among others, called for the two protestors to “face the full force of the law”, calling their actions “pathetic”. Legal consequences The individuals were apprehended at the scene and have been arrested by police. But what punishment might they face in light of the fact that the powder – which has seemingly turned out to just be cornstarch – has caused no damage to the stones and is easily removable? Has Just Stop Oil been clever in avoiding charges which might otherwise lead to quite severe sentences? Previous Just Stop Oil protesters, such as the pair who sprayed similar powder onto tables at the World Snooker Championships, have been charged under section 1 of the Criminal Damage Act 1971, which makes it an offence to intentionally or recklessly “destroy or damage any property”. In the case at the Crucible, the baize on the snooker tables had to be replaced, so it was relatively easy to show damage. However, the owners of Stonehenge, English Heritage, have confirmed that no damage was caused to the ancient stone circle. Equally, given the apparently careful choice to spray harmless cornstarch rather than anything that might have caused lasting damage, it might be difficult to prove intent or even recklessness. In addition to charges under the 1971 Act, in the Stonehenge case, prosecutors have available to them the possibility of a charge of damaging a protected monument under section 28 of the Ancient Monuments and Archaeological Areas Act 1979. The offence is couched in similar terms to criminal damage. Under section 28, it is an offence to destroy or damage a protected monument which the defendant knew (or ought to have known) is protected, or to intend to damage or destroy it, or being reckless as to whether it would be destroyed or damaged. But, again, a charge would rely on damage actually being caused. Both carry heavy penalties: in the case of the 1971 Act, up to 10 years’ imprisonment, and in the case of the 1979 Act, an unlimited fine and/or up to two years’ imprisonment. However, in either case, as we have seen, the prosecution would have to prove that the defendants had caused damage, which appears not to be the case here. Even if damage were to be proved, and even though the national and international importance of the monument would be taken into account, the sentencing advisory panel’s advice to the Court of Appeal on sentencing for environmental offences is clear that the extent of damage caused, alongside factors such as degree of culpability and whether the defendant has attempted to make any financial gain, is an important factor in determining what the sentence should be. Given that the damage, if any, caused in this case is likely to be at the lower end of the scale of possible degrees of damage, if charged under section 28, the defendants might expect a fine towards the lower end of the range, possibly reduced further still once their means to pay is taken into account in accordance with normal sentencing guidelines. A custodial sentence for slight damage, even taking account of Stonehenge’s importance, seems unlikely. The Stonehenge protestors So where does that leave prosecutors in relation to charges in this case? In the Wimbledon case, the protestors were charged with aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994, which makes it an offence to trespass on land in the open air and do anything with the intention of obstructing or disrupting lawful activity on the land, or intimidating any persons engaging in lawful activity. It carries a maximum penalty of three months’ imprisonment or a maximum fine of £2,500. That may well be “the full force of the law” in this case. The politicians will probably be content to see justice done and will be keen to move on to other matters. The protesters might be content to pay a relatively modest fine or even serve a short prison sentence as the price of drawing attention to their cause. One thing is clear, however: the uneasy standoff between committed activists determined to get their point across and the right of citizens to go about their lawful daily activities unmolested looks set to continue. Nigel Hewitson is a partner at Davitt Jones Bould Photo © Nik/Unsplash