United Kingdom
Date of text
Sabin Center
Court name
Court of Appeal (Criminal Division)
Seat of court
England and Wales
Reference number
[2022] EWCA Crim 6
Climate Change

On October 10, 2019, a group of at least ten Extinction Rebellion protesters launched a protest at London City Airport. Their purpose was to cause disruption in order to draw attention to the contribution of air travel to climate change. The group included James Hugh Brown, a former Paralympic champion, who glued himself to the top of a commercial passenger aircraft. For this, he was convicted by the Crown Court for public nuisance and imprisoned for 12 months. He appealed both conviction and sentence.

On January 14, 2022, the Court of Appeal gave judgment, dismissing the appeal against conviction but allowing the appeal against sentence and substituting a four-month term of imprisonment. On his appeal against conviction, Mr Brown agued the court below should have stayed the prosecution for the common law offense of public nuisance (which has a maximum penalty of life imprisonment) as an abuse of process. This was because alternative statutory offenses were available, such as aggravated trespass (which has a maximum penalty of three months). Failure to stay, argued Mr Brown, amounted to a breach of his human rights (freedom of thought, conscience and religion; freedom of expression; and freedom of assembly and association). Rejecting these arguments, the Court held that the concept of abuse of process in a criminal case is the creature of domestic law and does not turn on any issue under the European Convention on Human Rights or the Human Rights Act 1998. On his appeal against sentence, Mr Brown argued the 12 months imprisonment was too long given the offense was committed in the course of protest. Instead, only a fine should have been imposed. The Court considered jurisprudence from the European Court of Human Rights on when a custodial sentence might be appropriate in the context of peaceful protest amounting to public nuisance. It agreed with the court below that Mr Brown’s offending passed the custody threshold. However, taking account his conduct (including that this was a peaceful protest), his previous convictions and his disability it held the 12 month sentence was manifestly excessive, and substituted a four-month sentence.

Key environmental legal questions

Whether choosing to prosecute an XR protester for the offense of public nuisance was an abuse of process where alternative statutory offenses were available.