Since there is no definitive Sentencing Council Guideline specific to the offence of intentionally or recklessly causing public nuisance pursuant to section 78 of the Police, Crime, Sentencing and Courts Act 2022 (which introduced a new fault-based public nuisance offence and abolished the common law offence of public nuisance) nor for any obvious analogous offence, the court will take into account the statutory maximum and any relevant sentencing judgments of the Court of Appeal (Criminal Division) in relation to the old common law offence when sentencing for that offence (paras 42, 47).

The seriousness of the offence is assessed by considering the culpability of the offender and the harm caused by the offending pursuant to section 63 of the Sentencing Act 2020. The court must also consider which of the five purposes of sentencing identified in section 57 of the 2020 Act, namely punishment, reduction of crime (including its reduction by deterrence), reform and rehabilitation, public protection and the making of reparation, it is seeking to achieve through the sentence that is to be imposed. The principle of deterrence is of particular relevance in the context of a pressing social need to protect the public and prevent social unrest arising from escalating illegal activity. Once a provisional sentence is arrived at, the court takes into account relevant aggravating and mitigating features. Other considerations, such as totality, may be engaged under the stepped approach set out in the Sentencing Council’s General guideline: Overarching principles. Custodial sentences must be the shortest term commensurate with the seriousness of the offence (paras 48, 86).

The rights to freedom of expression and assembly under articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (a more specific form of the right in article 10) are relevant to sentence and can be considered together. Particular caution is to be exercised in imposing a custodial sentence in non-violent protest cases. It may also be relevant if the views being expressed relate to important and substantive issues, within limits. Determination of the proportionality of an interference with Convention rights is a fact-specific enquiry which requires the evaluation of the circumstances of the individual case and is a flexible notion which depends on fair and objective judicial assessment with no rigid rules. The enquiry requires consideration of the questions identified by the court in Director of Public Prosecutions v Ziegler [2020] QB 253. Where the protest takes place on land from which the public are excluded the defence of reasonable excuse under section 78(3) which incorporates article 10 and 11 protections is unavailable. The further away from the article 10 and 11 rights a protester is the less the rights merit an assessment of lower culpability or significant reduction in sentence (paras 49, 74).

A conscientious motive on the part of protesters may be a relevant consideration where the offender is a law-abiding citizen apart from their protest activities, in which case a lesser sanction may be appropriate. The more disproportionate or extreme the action taken by the protester the less obvious the justification for reduced culpability and more lenient sentencing. Where disruption is the central aim of the protester’s conduct the article 10 and 11 protections will be weakened. Ultimately whether a sentence of immediate custody is warranted and, if so, what length is appropriate will be highly fact-sensitive set in the context of the relevant legislation and sentencing regime identified above. Where a conscientious motive on the part of the protester is a relevant consideration for sentencing purposes it falls most logically to be factored into the assessment of culpability (paras 50–51, 55, 75).

Section 78 does not distinguish the sentencing maxima between the two limbs of offending and there is no difference in approach by reference to whether the offence is caused intentionally or recklessly. A judge sentencing under section 78(1)(b)(ii) cannot ignore the damage actually caused or risked as a result of an obstruction. When making a judgment about the risks of future offending, underlying motivations can be of great significance. It is for the judge to assess whether protestors’ apologies are genuine and he would be entitled to find protestors who had been repeatedly on bail but continued to offend unreliable. Where protesters have previous convictions for protest offences even if summary the judge is entitled to give weight to them and consider them to be serious aggravating factors particularly where the offenders are on bail at the time (paras 57, 58, 59, 61).

Obstruction which interrupts the strategic road network affecting hundreds of thousands of members of the public some very significantly, damage to businesses and the economy and the deployment of significant police and Highways Agency resources and assistance, is regarded as being of the utmost seriousness (para 76).