One question asked during the last week is why those convicted for participating in non-violent protests have received higher prison sentences than those who are guilty of violent disorder. In particular, why are those being sentenced for the recent rioting getting lesser sentences than the Just Stop Oil activists who sought to bring gridlock to the M25? As is well known, those five latter defendants were variously sentenced to either four or five years’ imprisonment, while the rioters convicted so far have received sentences ranging from two months up to three years.
It is a question that can be answered in many ways. One answer is that we are still in the early days of sentencing for the violent disorder of the past week. The first people to be sentenced will generally get lesser sentences as they are being punished by the lower Magistrates’ Courts, which have limited sentencing powers. The harder, harsher sentences will be imposed for those cases that go up to the Crown Court.
Another answer is a technical one. The law sometimes treats different types of public disorder as chalk and cheese. The rioting over the last week will be dealt with under offences that concern violent disorder and criminal damage, and the non-violent protests of the JSO defendants were prosecuted under a recently enacted offence designed for such non-violent disruption at scale.
That new offence is called “Intentionally or recklessly causing public nuisance” and it was brought in by the Police, Crime, Sentencing and Courts Act 2022. The maximum sentence for causing such a public nuisance is 10 years.
The judge in the M25 case set out in his sentencing remarks how he got to the figures of four and five years. Although there are no published guidelines, he looked to a case last year in respect of other JSO activists where the Court of Appeal had held that sentences of three years and of two years and seven months’ imprisonment were not manifestly excessive or disproportionate. Ergo, as the facts of the case seemed worse to him than the facts of the 2023 case, the sentences imposed had to be higher.
One may not see the merits of the long sentences that the judge imposed, and indeed one may think the sentences excessive in all the circumstances, but one can at least see the internal logic of imposing a heavier sentence than in a previous case if the facts mean a higher culpability. But there is perhaps a limit to how much such internal logic provides a convincing answer to the question posed at the start of this article.
In his remarks in the JSO case the judge sets out the evidence of the M25 disruption that did occur. Paragraphs six and seven detail the impact of the protests, including on ordinary people. Some of the examples he gives are poignant, including individuals who missed vital medical appointments and hospital deliveries not made. The effects on ordinary people were not trivial.
But even taking paragraphs six and seven of the sentencing remarks at their highest, they are not comparable to the disruption caused by this week’s riots. The widespread racially motivated violence and criminal damage meant that entire communities were terrified. People were not simply delayed in traffic; they were afraid to leave their houses. The “public nuisance”—to employ the phrase generally—was of a far greater order than that caused by the JSO activists.
Yes, there can be a technical explanation as to why those guilty of violent disorder this week are (so far) getting lower sentences than the non-violent M25 protesters. And it may well be that ringleaders and instigators of this disorder receive higher sentences when the Crown Court deals with their cases. There may even be convictions under terrorism legislation, an area of law not known for its leniency in punishments.
Yet, even accepting the technical differences between the criminal laws employed, and also allowing that heavier sentences may be on their way, it is hard to square lower sentences for those who terrify the public than for those who inconvenience the public. In essence, while there may be some answers as to the question of why non-violent protests get higher sentences than violent disorder, there is not a good answer.
