The convictions of thirteen Plane Stupid campaigners are a reminder that the courts are only prepared to accept what constitutes ‘peaceful’ protest within strict limits
On Tuesday the Independent reported on concerns raised by campaigners that a judge’s threat to imprison the Heathrow 13, convicted of aggravated trespass on the airport’s runway last summer, undermines “the British legal system’s long-standing tolerance towards non-violent direct action”.
Dr Graeme Hayes of Aston University, calls it “unprecedented in modern times” for environmental activists to face a custodial sentence for “a peaceful, non-violent protest which the judge recognises as being conducted with honesty, sincerity and integrity.”
District Judge Deborah Wright’s warning that the thirteen activists’ acts of conscience makes imprisonment “almost inevitable” is certainly unusual. Judges and magistrates consider mitigating circumstances for defendants who are found guilty and they are generally prepared to accept that, for most offences committed in the context of peaceful direct action, the appropriate penalty is a conditional discharge.
This is usually true whether a protester has pleaded guilty or has been convicted following a trial and even if a defendant has previous convictions for civil disobedience in similar circumstances. In the case of the Heathrow 13, most have no prior convictions.
Courts often accept conscientious grounds for breaking the law by reference to remarks made about civil disobedience by Lord Hoffman in a 2006 Court of Appeal judgment, R v Jones, involving convictions resulting from protests at RAF Fairford on the eve of the Iraq War 1. Hoffman said:
My Lords, civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account. The conditional discharges ordered by the magistrates in the cases which came before them exemplifies their sensitivity to these conventions.
So why is the Heathrow 13 case so different? It is clear Judge Wright accepted the defendants were “all principled people”. However, in the particular circumstances of their protest, she decided their conduct was disproportionate and caused excessive inconvenience and so, in her view, does now warrant the ‘restraint’ that Hoffman spoke of.
It is a reminder that the courts are only prepared to accept what constitutes ‘peaceful’ protest within strict limits and that this does not extend to potentially significant damage to powerful economic interests. Anyone planning any kind of direct action needs to consider this carefully.
There is is a long and honourable tradition in the UK of passive resistance where the prospect of arrest is not just inevitable, but welcomed as a way of raising the profile of a cause. However, does everyone taking part understand that, despite their conscientious motives, the law will not protect them? Are they prepared to accept imprisonment is a possibility they may have to endure? Are there other options that allow protesters to try to avoid arrest and prosecution?
It is hard to see how society benefits from the incarceration of thirteen principled campaigners, but if some or all of them are jailed, the Heathrow 13 case still does not represent, as the Independent seems to suggest, an end to “the British legal system’s long-standing tolerance towards non-violent direct action”. It is far from typical of most protest cases.
Unless there are other mitigating circumstances such as a string of previous convictions for violence, the overwhelming majority of protesters found guilty of offences such as obstruction of the highway or aggravated trespass are unlikely to face imprisonment and most will receive a conditional discharge.
Hopefully none of the Heathrow defendants will go to prison. It is important that in defending them, however, we avoid inadvertently assisting those who would seek to intimidate activists away from taking part in acts of civil disobedience in the future.
1 See paragraph 89, R v Jones  UKHL16.