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The Change in Judicial Practice in Cases Concerning Civil Disobedience Protests and its Constitutional Significance

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Stephenson Chow discusses The UK courts’ shift in attitude towards civil disobedience as significant. It strengthens constitutional democracy.

Image courtesy of interviewee. January 8, 2024

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This video video discusses the evolution of civil disobedience, its historical significance, and the changing attitudes of UK courts toward it. Civil disobedience, rooted in the philosophy of Henry David Thoreau, has inspired non-violent protests around the world, from Gandhi's movements in India to the US Civil Rights Movement and contemporary climate activism. Historically seen unfavorably by courts as a form of law-breaking, civil disobedience is now increasingly recognized for its conscientious motives.

Recent court cases reflect a shift in attitude, with courts acknowledging the moral distinctions between peaceful protestors and ordinary lawbreakers, leading to more lenient sentencing. The UK courts have begun to consider the sincerity and motives of civil disobedience in their judgments, opting for community service over custodial sentences in appropriate cases.

The European Court of Human Rights' jurisprudence has also influenced this shift, emphasizing the protection of peaceful protests under human rights laws, even if they are unlawful. This video video argues that civil disobedience plays a crucial role in democratic societies by serving as a check on state power and fostering a sense of moral responsibility among citizens. This video video development is seen as strengthening constitutional democracy by respecting the rights to protest and encouraging civil engagement in governance.

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Civil disobedience obviously has a very long history,

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many dates of disobedience back to the 19th century

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and to the intellectual contributions

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of the American philosopher Henry Thero, who argued

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that we should not allow governments

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to dictate our conscience.

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And in fact, we have a duty to voice out in the face

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of brave wrongs committed by the government so

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that we avoid being agents of injustice.

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And so the idea of civil disobedience have inspired

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non-violent protest movements across the world.

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And as we can see, in India prior

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to its independence led by Gandhi, you know,

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the US Civil Rights Movement,

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and, you know, many other protests around the world,

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including the United Kingdom.

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And today, currently a day goes

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by in the United Kingdom without some

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reporting of protests in the news.

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Um, so in the 20th century, protests of the sort,

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are generally though not exclusively anti-war protests

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and protests relating to nuclear disomy.

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And by the t first century, the causes of these protests

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are much more diverse.

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Yeah. So for example, they could relate

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to live livelihood

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and, social economic disparity, such

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as the occupied London movement.

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Um, it could be solidarity movements such as anti-racism,

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protests inspired by the Black Lives

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Matter movement, for example.

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And in recent years, there are more

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and more direct action protests associated

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with climate change, such

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as protests against hydraulic factoring

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and the construction of high speed railway projects.

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So the context of this study is to, identify

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that there is a change in attitude,

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of the UK courts towards civil obedience.

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So in the past, the court used the c civil disobedience

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as you know, a form of vigilantism, basically, where,

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you know, individuals who are not, comfortable

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with, with whatever the government's doing, tries

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to take matters to their hands.

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And that will, you know, they protest and, you know,

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and the course of protest violate laws.

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And, so that was the idea

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that the courts have in relationship

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with obedience in the past.

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But then, you know, in recent years, we see a,

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a very dramatic change, right?

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So the courts are now recognizing, you know, the,

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the conscientious motives of, you know,

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civil dis protestors.

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And in the course of recognizing, you know, their motives,

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the course now think that, well,

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maybe we should be treating them more leniently and

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therefore, instead of, you know, you know,

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imposing custodian sentences, maybe we could just, you know,

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impose a community surface order, right?

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So, so there's a huge change, in terms

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of the attitudes of the UK courts,

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in relation to this, protest.

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And, you know, I think that's very, very important

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because, civil disobedience is actually very important,

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to sustain constitution of democracy.

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And that is because when, especially when,

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when you institutional check and balance fails,

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and when you know democracy fails,

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that's, that's all you have.

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But many scholars have tried to define civil dis audience,

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but the most influential decision, definition

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by far is one that is given by John Ross.

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So John Ross says that civil disobedience is a public

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nonviolent, conscientious political act, contrary

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to the law usually done to bring about a change in law

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or policy of the government.

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Now, what that means is

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that civil disobedience is necessarily an illegal act,

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which immediately distinguishes this type

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of protests from other forms of local protestors.

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Um, it is a public and not a private act,

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and it, it is usually performed,

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to convince others to join your cause.

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It is a non-violent, action.

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And that is very important because,

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even if it is an unlawful act, it is a principled infraction

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of law, and it is an act of low moral culpability.

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It is conscientious.

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In other words, it is not self-interested,

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and it's guided by the principle of justice.

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The type of civil nce that I am focusing on in this project,

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have to do with direct action protests such

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as occupation protests, such as sitting protests, such

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as road blocking, because those protests necessarily involve

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a violation of the public order law, such as press pass,

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such as public movements or a traffic offense, right?

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Or a violation of an injective order.

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Mediums has profound implication on constitutional

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democracies, and that's

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because constitutional democracies moderate state

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powers in two ways.

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First, policies in con

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constitutional democracies are required to be openly debated

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and voted upon by democratically elected representatives.

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That is a substantive restriction of state power.

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Second, through procedural restriction of state power,

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and in particular institutional check balance

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and independent judiciary, it ensures

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that fundamental rights of certain, protected.

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But here's a problem.

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Both substantive

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and procedural restrictions are not perfect.

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Um, for example, there could be instances where, you know,

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majority of views operate or press the rise of minorities.

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And there are oftentimes when, you know,

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democratic representatives fails to reflect the will

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of its electorates, owing to a lot of reasons, such as,

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you know, the issues with collect donations, the pressure

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of particular powerful sectors

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of the community, and so on, so forth.

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And so, and, and also a lot of issues

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Cannot be redressed by courts.

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Um, so for example, whether

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or not a country should go to war, it's not something

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that court can, redress.

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And so,

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and it's also the same with a lot of policies, right?

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So whether or not they grant a license to engage in logging

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or logging or frack,

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fracking activities cannot be overturned by quotes.

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So in these type of situations,

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civil disobedience becomes a very important protest tactic,

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to draw the public's attention to what's problematic

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and to create pressure for the authorities

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to re reconsider the decision.

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As the legal philosopher, you know, still can argues

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that when institutional check

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and bonds fails the duty

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to keep the government in check rest with its citizenry.

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So courts, in the UK have traditionally viewed,

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civil disability s rather unfavorably, first

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because obviously civil disobedience is law breaking.

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And when individuals break the law, they break the law,

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and their underlying reasons

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for breaking the law are simply irrelevant.

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In fact, in one of the judgments, the court said, even

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where a person have on a, on on his face,

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a very good reason for breaking the law,

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and I hope it is not necessarily unjust

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to punish this person in the same way

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as any other persons who break the law.

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He has his reasons, and the state in the interest

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of the citizens generally has different reasons.

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Both might be right as judges,

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which would respect their views,

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but might feel it necessary to punishment them all the same.

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So that is one reason, again, right?

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The reason is that, you know, it's a form

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of law breaking doesn't really matter why you do it.

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Um, and the second reason is that court of the view

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that laws and policies that are endorsed

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by the democratic processes should only be overturned

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by the democratic protest and lawful procedures.

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So if the courts were going to be lenient on cases

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where individuals try to use extra legal means,

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to achieve his or her goals,

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then they risk promoting vigilantism.

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Recently there has been a shift in the attitude of courts,

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in cases of civil obedience.

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Um, and there are two primary reasons.

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First, there was a reexamination

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of the very idea ofs disobedience, itself,

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whereby course came to realize that there are forms

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of peaceful protests in ance of civil obedience,

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that have a low moral culpability,

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and that justifies a more lenient treatment.

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And so in the 2006 case, ar Jones

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before the House of Lords, l Lord Hoffman observed

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that civil disobedience on concierge grounds has a long

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and honorable history in this country

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where protestors behave with a sense of proportion

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and do not cause excessive damage or inconvenience.

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And they vouch the sincerity of the belief,

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accepting the penalties imposed by the law.

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Magistrates may impose sentences,

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which take the conscientious motives

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of the protestors into account.

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And so, in other words, they realize

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that there are situations where, you know,

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protestors actually act with the sense proportion, right?

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They are restricting themselves.

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They're not, you know, you know, damaging things

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and, you know, vandalizing things and, and, and that, right?

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It's, it's a very peaceful and nonviolent process.

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And in a 2020 session, quad Boland

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and others, the UK Court of Appeal took the view

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that an individual engaging in civil diss

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that is peaceful non-violence

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and for social cause establishes a moral difference

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between herself and ordinary law bs, which ought

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to be taken into account when it comes to sentencing.

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Um, and if the purpose of imposing sanctions,

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in this type of cases is not to punish, right?

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But rather to persuade the individual

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to respect the law instead

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of acting out their own moral conscience,

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such message is more effectively conveyed

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through a lighter sentence.

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And so, you know, that's one reason, why,

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you know, the courts take a more lenient approach, again,

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that this is a reexamination of the nature

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of civil disobedience itself, trying to distinguish

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between civil disobedience and ordinary lawbreaking.

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The second reason why, the courts take a different view

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is because of the jury, the, the impact

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of the jurisprudence of the European Court of Human Rights.

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And so, here the,

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the emphasis is actually slightly different.

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Um, but then essentially, the jurisprudence of the,

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European Court of Human Rights establishes that as long

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as protest activities are peaceful

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and nonviolence, that they are,

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then they are protected under ants

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and article, article 11 of the European Convention

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of Human Rights on freedom expression

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and freedom of assembly, even if they are unlawful, right?

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So even if the protestors are unlawful, as long

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as they're peaceful nonviolence,

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it is actually protected under the ECHR.

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And you know, the reason behind this is

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'cause a lot of countries arbitrarily de protest activities

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unlawful, right?

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And therefore, what determines whether

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or not these protestors should be protected as part

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of human rights is to see whether

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or not there are nonviolent.

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Now, of course, the freedoms, the freedom of speech

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and freedom of assembly are not absolute.

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And so protestors can still be penalized if the protest

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actions cause a significant impact on the right

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of others, right?

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So for example, if we have a protest action

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that involves the blocking off of highway, right?

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That will affect a lot of people,

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and that will affect, you know, emergency services,

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for example, right?

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And so in that kind of situation,

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protestors could be penalized,

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but then the sentences imposed on these protests must be

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proportionate so as

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to avoid creating a chilling effect on these rights.

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This is another reason why the courts in the UK have

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exercised caution when it comes to sentencing.

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So this opinion protestors.

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So in the 2018 Court of Appeal case, r

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and Roberts, two defendants were

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convicted of public nuisance.

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So what they did was they sat on top of lorries,

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for three consecutive days blocking off one carriageway

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of a freeway, in protest of fracking activities.

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Now, their actions don't cause a disruption for, you know,

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thousand road users, newsers,

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it also had essential surfaces.

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Um, the defendant later showed remorse for their actions.

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And in that case, the court had to decide whether

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or not to impose a he sentence, and that is imprisonment

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or a lighter sentence,

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and that is a community service order.

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The court thought that community service order would be a

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sufficient form of punishment

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and would serve, you know, sufficient,

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he rehabilitative purposes.

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Um, given that the defendant expressed remorse

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and a community service order is more proportionate in this,

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context, because it also allows them to continue

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to express themselves freely, in a lawful manner,

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of course, in compliance with the court order.

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Of course, you know, that, that the strong objections

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to hydraulic refracturing, right?

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So this is one example of how,

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the corporality principle is applied,

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in sentencing in this type of cases.

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And again, that is because,

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and that is influenced by, the jurisprudence

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of the Ukraine Court of Justice, human rights.

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I think one important message,

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that emerged from the UK courts through the body of case law

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that I just introduced, is

13:51.565 --> 13:52.765
that protestors,

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and, you know, you know, even protests in persons

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of civil disobedience should not be discouraged

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because they are important part of free expression assembly,

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and they play an important part in political life.

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And what the court is trying to to do here is

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to incentivize protestors to act with prudence

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and a sense of pro proportion

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through a more lenient approach to sentencing.

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Um, and that is of course,

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that protestors will receive a lighter sentence if they do

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not cause excessive destruction,

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on the rights of others.

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And that if they're willing to consider the rights

14:27.685 --> 14:30.905
of others, you know, and, and,

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and take steps to mitigate that impact.

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And so that's, that's one, you know, very strong message

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that I, I think that's been expressed through the, the,

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the body of case law.

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And I believe that this approach strengthens constitutional

14:44.065 --> 14:45.265
democracy into ways.

14:45.515 --> 14:49.585
First, it respects protests, not only as part

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of human rights, but

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Also as a form of check and balance against state power.

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That's one. Now.

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Second, it helps promote the kind of civil characteristics

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and the development of moral character

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that enables a constitutional democracy to thrive.

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For example, moral responsibility, right?

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So that, that, that one should not be, you know, silent

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or acquiesced to unjust laws

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and policies, some sacrifice, for example,

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that they're willing to face legal consequences

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for their actions and beliefs.

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And, you know, not acting in a way that demonstrates

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some kind of self-righteousness,

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but then acting in a way that demonstrates humility

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and civility by taking into account the rest

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of others when they protest.

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So, I think that's a very positive development.

00:00 - Civil disobedience obviously has a very long history, many dates of disobedience back to the 19th century and to the intellectual contributions of the American philosopher Henry Thero, who argued that we should not allow governments to dictate our conscience.

00:16 - And in fact, we have a duty to voice out in the face of brave wrongs committed by the government so that we avoid being agents of injustice. And so the idea of civil disobedience have inspired non-violent protest movements across the world. And as we can see, in India prior to its independence led by Gandhi, you know, the US Civil Rights Movement, and, you know, many other protests around the world, including the United Kingdom.

00:46 - And today, currently a day goes by in the United Kingdom without some reporting of protests in the news. so in the 20th century, protests of the sort, are generally though not exclusively anti-war protests and protests relating to nuclear disomy. And by the t first century, the causes of these protests are much more diverse. Yeah. So for example, they could relate to live livelihood

01:13 - and, social economic disparity, such as the occupied London movement. it could be solidarity movements such as anti-racism, protests inspired by the Black Lives Matter movement, for example. And in recent years, there are more and more direct action protests associated with climate change, such as protests against hydraulic factoring and the construction of high speed railway projects.

01:38 - So the context of this study is to, identify that there is a change in attitude, of the UK courts towards civil obedience. So in the past, the court used the c civil disobedience as you know, a form of vigilantism, basically, where, you know, individuals who are not, comfortable with, with whatever the government's doing, tries to take matters to their hands. And that will, you know, they protest and, you know, and the course of protest violate laws.

02:11 - And, so that was the idea that the courts have in relationship with obedience in the past. But then, you know, in recent years, we see a, a very dramatic change, right? So the courts are now recognizing, you know, the, the conscientious motives of, you know, civil dis protestors. And in the course of recognizing, you know, their motives, the course now think that, well,

02:40 - maybe we should be treating them more leniently and therefore, instead of, you know, you know, imposing custodian sentences, maybe we could just, you know, impose a community surface order, right? So, so there's a huge change, in terms of the attitudes of the UK courts, in relation to this, protest. And, you know, I think that's very, very important because, civil disobedience is actually very important, to sustain constitution of democracy.

03:15 - And that is because when, especially when, when you institutional check and balance fails, and when you know democracy fails, that's, that's all you have. But many scholars have tried to define civil dis audience, but the most influential decision, definition by far is one that is given by John Ross. So John Ross says that civil disobedience is a public nonviolent, conscientious political act, contrary to the law usually done to bring about a change in law

03:46 - or policy of the government. Now, what that means is that civil disobedience is necessarily an illegal act, which immediately distinguishes this type of protests from other forms of local protestors. it is a public and not a private act, and it, it is usually performed, to convince others to join your cause. It is a non-violent, action. And that is very important because,

04:12 - even if it is an unlawful act, it is a principled infraction of law, and it is an act of low moral culpability. It is conscientious. In other words, it is not self-interested, and it's guided by the principle of justice. The type of civil nce that I am focusing on in this project, have to do with direct action protests such as occupation protests, such as sitting protests, such as road blocking, because those protests necessarily involve a violation of the public order law, such as press pass,

04:48 - such as public movements or a traffic offense, right? Or a violation of an injective order. Mediums has profound implication on constitutional democracies, and that's because constitutional democracies moderate state powers in two ways. First, policies in con constitutional democracies are required to be openly debated and voted upon by democratically elected representatives. That is a substantive restriction of state power.

05:15 - Second, through procedural restriction of state power, and in particular institutional check balance and independent judiciary, it ensures that fundamental rights of certain, protected. But here's a problem. Both substantive and procedural restrictions are not perfect. for example, there could be instances where, you know, majority of views operate or press the rise of minorities. And there are oftentimes when, you know,

05:42 - democratic representatives fails to reflect the will of its electorates, owing to a lot of reasons, such as, you know, the issues with collect donations, the pressure of particular powerful sectors of the community, and so on, so forth. And so, and, and also a lot of issues Cannot be redressed by courts. so for example, whether or not a country should go to war, it's not something that court can, redress.

06:06 - And so, and it's also the same with a lot of policies, right? So whether or not they grant a license to engage in logging or logging or frack, fracking activities cannot be overturned by quotes. So in these type of situations, civil disobedience becomes a very important protest tactic, to draw the public's attention to what's problematic and to create pressure for the authorities to re reconsider the decision.

06:30 - As the legal philosopher, you know, still can argues that when institutional check and bonds fails the duty to keep the government in check rest with its citizenry. So courts, in the UK have traditionally viewed, civil disability s rather unfavorably, first because obviously civil disobedience is law breaking. And when individuals break the law, they break the law, and their underlying reasons for breaking the law are simply irrelevant.

06:58 - In fact, in one of the judgments, the court said, even where a person have on a, on on his face, a very good reason for breaking the law, and I hope it is not necessarily unjust to punish this person in the same way as any other persons who break the law. He has his reasons, and the state in the interest of the citizens generally has different reasons. Both might be right as judges, which would respect their views,

07:24 - but might feel it necessary to punishment them all the same. So that is one reason, again, right? The reason is that, you know, it's a form of law breaking doesn't really matter why you do it. and the second reason is that court of the view that laws and policies that are endorsed by the democratic processes should only be overturned by the democratic protest and lawful procedures. So if the courts were going to be lenient on cases where individuals try to use extra legal means,

07:57 - to achieve his or her goals, then they risk promoting vigilantism. Recently there has been a shift in the attitude of courts, in cases of civil obedience. and there are two primary reasons. First, there was a reexamination of the very idea ofs disobedience, itself, whereby course came to realize that there are forms of peaceful protests in ance of civil obedience, that have a low moral culpability,

08:25 - and that justifies a more lenient treatment. And so in the 2006 case, ar Jones before the House of Lords, l Lord Hoffman observed that civil disobedience on concierge grounds has a long and honorable history in this country where protestors behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of the belief, accepting the penalties imposed by the law. Magistrates may impose sentences,

08:56 - which take the conscientious motives of the protestors into account. And so, in other words, they realize that there are situations where, you know, protestors actually act with the sense proportion, right? They are restricting themselves. They're not, you know, you know, damaging things and, you know, vandalizing things and, and, and that, right? It's, it's a very peaceful and nonviolent process. And in a 2020 session, quad Boland

09:24 - and others, the UK Court of Appeal took the view that an individual engaging in civil diss that is peaceful non-violence and for social cause establishes a moral difference between herself and ordinary law bs, which ought to be taken into account when it comes to sentencing. and if the purpose of imposing sanctions, in this type of cases is not to punish, right? But rather to persuade the individual to respect the law instead

09:56 - of acting out their own moral conscience, such message is more effectively conveyed through a lighter sentence. And so, you know, that's one reason, why, you know, the courts take a more lenient approach, again, that this is a reexamination of the nature of civil disobedience itself, trying to distinguish between civil disobedience and ordinary lawbreaking. The second reason why, the courts take a different view is because of the jury, the, the impact

10:30 - of the jurisprudence of the European Court of Human Rights. And so, here the, the emphasis is actually slightly different. but then essentially, the jurisprudence of the, European Court of Human Rights establishes that as long as protest activities are peaceful and nonviolence, that they are, then they are protected under ants and article, article 11 of the European Convention of Human Rights on freedom expression

10:57 - and freedom of assembly, even if they are unlawful, right? So even if the protestors are unlawful, as long as they're peaceful nonviolence, it is actually protected under the ECHR. And you know, the reason behind this is 'cause a lot of countries arbitrarily de protest activities unlawful, right? And therefore, what determines whether or not these protestors should be protected as part of human rights is to see whether

11:23 - or not there are nonviolent. Now, of course, the freedoms, the freedom of speech and freedom of assembly are not absolute. And so protestors can still be penalized if the protest actions cause a significant impact on the right of others, right? So for example, if we have a protest action that involves the blocking off of highway, right? That will affect a lot of people, and that will affect, you know, emergency services,

11:49 - for example, right? And so in that kind of situation, protestors could be penalized, but then the sentences imposed on these protests must be proportionate so as to avoid creating a chilling effect on these rights. This is another reason why the courts in the UK have exercised caution when it comes to sentencing. So this opinion protestors. So in the 2018 Court of Appeal case, r

12:16 - and Roberts, two defendants were convicted of public nuisance. So what they did was they sat on top of lorries, for three consecutive days blocking off one carriageway of a freeway, in protest of fracking activities. Now, their actions don't cause a disruption for, you know, thousand road users, newsers, it also had essential surfaces. the defendant later showed remorse for their actions. And in that case, the court had to decide whether

12:46 - or not to impose a he sentence, and that is imprisonment or a lighter sentence, and that is a community service order. The court thought that community service order would be a sufficient form of punishment and would serve, you know, sufficient, he rehabilitative purposes. given that the defendant expressed remorse and a community service order is more proportionate in this, context, because it also allows them to continue

13:16 - to express themselves freely, in a lawful manner, of course, in compliance with the court order. Of course, you know, that, that the strong objections to hydraulic refracturing, right? So this is one example of how, the corporality principle is applied, in sentencing in this type of cases. And again, that is because, and that is influenced by, the jurisprudence of the Ukraine Court of Justice, human rights.

13:41 - I think one important message, that emerged from the UK courts through the body of case law that I just introduced, is that protestors, and, you know, you know, even protests in persons of civil disobedience should not be discouraged because they are important part of free expression assembly, and they play an important part in political life. And what the court is trying to to do here is to incentivize protestors to act with prudence

14:11 - and a sense of pro proportion through a more lenient approach to sentencing. and that is of course, that protestors will receive a lighter sentence if they do not cause excessive destruction, on the rights of others. And that if they're willing to consider the rights of others, you know, and, and, and take steps to mitigate that impact. And so that's, that's one, you know, very strong message

14:36 - that I, I think that's been expressed through the, the, the body of case law. And I believe that this approach strengthens constitutional democracy into ways. First, it respects protests, not only as part of human rights, but Also as a form of check and balance against state power. That's one. Now. Second, it helps promote the kind of civil characteristics and the development of moral character

15:01 - that enables a constitutional democracy to thrive. For example, moral responsibility, right? So that, that, that one should not be, you know, silent or acquiesced to unjust laws and policies, some sacrifice, for example, that they're willing to face legal consequences for their actions and beliefs. And, you know, not acting in a way that demonstrates some kind of self-righteousness, but then acting in a way that demonstrates humility

15:30 - and civility by taking into account the rest of others when they protest. So, I think that's a very positive development.

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