Richard Roberts v R
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ |
| Judgment Date | 06 December 2018 |
| Neutral Citation | [2018] EWCA Crim 2739 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2018/04159 A1, 2018/04158 A1 & 2018/04161 A1 |
| Date | 06 December 2018 |
and
[2018] EWCA Crim 2739
The Right Honourable The Lord Burnett of Maldon
The Lord Chief Justice of England And Wales
The Honourable Mr Justice Phillips
and
The Honourable Mrs Justice Cutts
Case No: 2018/04159 A1, 2018/04158 A1 & 2018/04161 A1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT PRESTON
His Honour Judge Altham
T20180167
Royal Courts of Justice
Strand, London, WC2A 2LL
Kirsty Brimelow QC & Richard Brigden (instructed by Robert Lizard Limited) for the Appellants
Craig MacGregor (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 17 October 2018
Judgment Approved
On 22 August 2018 in the Crown Court at Preston before His Honour Judge Altham the applicants were convicted of public nuisance contrary to the common law. Their convictions arose out of their conduct in protesting against the authorisation to Cuadrilla by the Oil and Gas Authority to begin hydraulic fracturing, now well known as fracking, to explore for shale gas at a site just off the Preston New Road, the A583, near Blackpool. On 26 September 2018 the judge sentenced Mr Blevins and Mr Roberts to 16 months' imprisonment and Mr Loizou to 15 months. The applicants sat on top of the cabs of lorries for between two and half and three and a half days with the result that one carriageway of the road was blocked. Substantial disruption was caused to thousands of people.
The applications for leave to appeal against sentence were referred by the Registrar to the full court as a matter of urgency. On Wednesday 17 October we heard the applications, granted leave to appeal and allowed the appeals. We concluded that an immediate custodial sentence in the case of these appellants was manifestly excessive. In our judgment the sentence which should have been imposed on 26 September was a community order with a significant requirement for unpaid work. However, by the time of the hearing, the appellants had been in custody for three weeks meaning that they had served a sentence equivalent to six weeks. As a result, and only in consequence of that, we concluded that the appropriate sentence was a conditional discharge for two years. A conditional discharge leaves the appellants vulnerable to being resentenced if they offend in any way within the period of two years.
These are our reasons for arriving at this conclusion.
Public Nuisance
Public nuisance is a common law offence, the boundaries of which were explored in R v Rimmingtan [2006] 1 AC 459. Both Lord Bingham of Cornhill and Lord Rodger of Earlsferry (at 484A and 487D respectively) were content to adopt, with minor modification, the definition of public nuisance in the then current edition of Archbold, Criminal Pleading, Evidence and Practice, with this result:
“A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects.”
The other members of the Committee agreed. The essence of the case advanced by the prosecution against these appellants, accepted by the jury, was that their occupation of the lorries was not warranted by law and it had the effect of obstructing the public from going about their business. It is a serious offence of a different order, for example, from temporarily obstructing the highway.
The Grounds of Appeal
The appellants relied upon four grounds of appeal:
(i) An immediate custodial sentence is never appropriate for a non-violent crime committed as part of peaceful protest as a matter of domestic law and would breach article 10 of the European Convention of Human Rights [“ECHR”];
(ii) Even if the custody threshold had been passed on the facts of these cases, the judge should have imposed a suspended sentence having regard to all the circumstances. In particular, the judge erred in concluding that immediate imprisonment was unavoidable because these appellants were unsuitable for rehabilitation given their unswerving beliefs against fracking;
(iii) The sentence was manifestly excessive because the undoubted disruption that followed the appellants' action was largely the direct cause of the concurrent actions of others;
(iv) Information obtained after the sentences were imposed raised the question of the appearance of bias on the part of the judge.
We decided to hear oral argument on the first three grounds and were assisted by written submissions from Liberty and Friends of the Earth. The fourth ground had arisen very shortly before the hearing of the applications. The respondent had not had an opportunity to investigate the matter and neither had any inquiry been possible of the judge to establish what he knew of the matters relied upon by the appellants. In the event it was not necessary to hear the argument in this appeal.
There is no suggestion that the judge was in fact biased. The test to be applied in cases of apparent bias was set out by Lord Hope in Porter v Magill [2002] 2 AC 359 at [103]:
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
Such questions generally arise in advance of a trial when the facts can be properly explored but as Lord Bingham CJ observed in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at [18] it may be necessary to explore whether the judge was aware of the features said to give rise to concern, because if the judge was ignorant of something said to require him to recuse himself, there would be no danger of bias.
In view of the rather lurid news reporting that surrounded this ground, we shall summarise the evidence relied upon.
It is contained in a statement produced by a “climate justice campaigner” employed by Friends of the Earth who states that on 27 September 2018 (that is the day following the sentencing) he “was requested to research the links between [the judge's family] and the fossil fuel industry.” The information he provides in the statement was gathered from the internet on that day.
The judge's octogenarian parents remain directors of a family business, which is run by his sister (who we are told was born in 1963), that has operated since the mid-nineteenth century as a grocer and butcher. Prior to 1984 the business diversified into supplying ships' stores in the north west. The website of the business said that new areas of business were developed including supplying the new Freight Ferry services from Heysham and Liverpool to Ireland. Then in 2000, the business began supplying stores to the area's offshore gas and oil platforms. It is in that way that it is said the business “supplies the oil and gas industry”. The next step in the chain is the statement that “one of the dominant firms engaged in the Irish Sea oil and gas industry is Centrica.” The final step is that Centrica is a substantial investor in Cuadrilla.
The statement shows that the judge is not a shareholder in the family business.
Even were the judge to have been aware that the rigs supplied with stores by the business were owned or operated by Centrica (if that be the case, which is not established by the evidence filed) and that Centrica had an interest in Cuadrilla, which is evidenced by quotations from public statements, at first blush this looks tenuous when considering the test for apparent bias.
Two other features are relied upon.
The lorries occupied by the appellants had travelled from Immingham Docks, through which the drilling equipment was imported. There is no direct connection suggested between the business operated by members of the judge's family and the lorries in question, but a website operated by an organisation called 4C Offshore suggests that the business “is one of four suppliers to Immingham Docks”. It appears to be suggested that because the business has commercial dealings with the port through which the lorries entered the United Kingdom that somehow that would lead a reasonable and fully informed observer to suppose that the judge might be biased.
Finally, the appellants place reliance on the fact that the judge's sister put her name to an open letter in 2014 to Lancashire County Council supporting the grant of permission for two exploratory wells in Lancashire. The letter, signed by a large number of local business people who expressed a desire to enhance the economic prosperity of the region, was co-ordinated by the North West Energy Task Force. That declares itself independent of, but receiving support from, both Centrica and Cuadrilla. Whether the judge was aware of any of this is unknown. That said, it would be surprising if anyone living in the vicinity did not have an opinion on the question of fracking in Lancashire, even more surprising if members of their immediate or extended families did not have opinions, sometimes publicly expressed. Judges are generally not their brother's keeper and public support expressed for or against a cause by a sibling or child would be unlikely to give rise to any concern in any reasonable objective observer. If a sibling signing a round-robin letter of this sort disqualified a judge in these circumstances, the implications would be significant. What of a child or sibling who was a vocal supporter of an environmental cause? The argument, if sound, would cut both ways.
The Facts
In January 2017 the oil and gas exploration and production company Cuadrilla was granted a licence by the Oil...
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