The approach to sentencing for the majority of criminal offences in England and Wales is covered by guidelines published by the Sentencing Council. The publication of the guidelines for Public Order Act offences on 16th October 2019 provides an opportunity to assess how the guidelines may be used to inform sentences for any Public Order Act offences committed as a result of the Extinction Rebellion protests.  

The guidelines will come into force for any sentence passed on or after the 1st January 2020. Most current cases are likely to be concluded on or after this date, so this guideline will be relevant.

As Extinction Rebellion is a peaceful form of public protest, the more serious Public Order offences (Riot, Violent Disorder and Affray) are unlikely to be applicable. 

We are more likely to see:

  • Section 4A Public Order Act — disorderly behaviour with intent to cause harassment, alarm or distress; or
  • Section 5 Public Order Act — disorderly behaviour (harassment, alarm or distress) 

The maximum penalty for a Section 5 Public Order Act offence is a fine. The maximum sentence for an offence contrary to Section 4A Public Order Act is a prison sentence. 

It is the potential approach to the Section 4A Public Order Act offence that is of interest here. The court will be required to assess culpability and harm. The approach to this is governed by the guidelines and the court must have regard to them. 

Dealing with culpability factors first, the court must consider whether the case is one of high or low culpability ONLY by reference to the following factors:

A – High culpability:

  • Targeting of individual(s) by a group
  • Sustained incident
  • Use of substantial force
  • Substantial disturbance
  • Production of weapon
  • Missiles thrown

B – Lesser culpability:

  • All other cases

The court will likely be invited to consider that substantial disturbance, at the very least, has been caused.  

The court will then need to assess the extent to which harm is present and will again ONLY consider the following factors:

Category 1

  • Serious distress or alarm caused
  • Distress or alarm caused to multiple persons present

Category 2

  • All other cases

Of course, every case will depend on its own merits, but an argument will likely be made that it is a Category 1 harm case.

If the court concludes that it is a case of culpability A and Category 1 for harm, then the case could fall into the top bracket for sentence. The full sentence matrix is produced below:

As can be seen, the starting point that the court could be invited to adopt for sentence does involve the imposition of a prison sentence. The court would need to reflect a number of other factors, so one would hope for a sensible conclusion, but the potential for deterrent sentences does exist with the publication of these guidelines.