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.

Case documents

• Court of Appeal judgment, 14 January 2022 (English)

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