By Aabhinav Tyagi, human rights lawyer
On September 27, 2024, Just Stop Oil supporters Phoebe Plummer and Anna Holland were sentenced to prison terms of up to two years by Judge Christopher Hehir at Southwark Crown Court. Their offence was throwing tomato soup over Vincent van Gogh’s “Sunflowers” painting at the National Gallery in October 2022. The painting remained unharmed behind protective glass; only the frame sustained minor damage estimated between £8,000 and £10,000.
This case raises significant legal concerns about the treatment of peaceful protest in the UK justice system. Here are five critical legal errors in Judge Hehir’s sentencing that undermine fundamental rights and set a troubling precedent.
1. Mischaracterising peaceful protest as violent crime
Judge Hehir classified Plummer and Holland’s actions as violent, equating throwing soup at a protected painting with physically assaulting a person. During an exchange with defence barrister Raj Chada, he repeatedly attempted to draw an analogy between throwing soup on someone’s face and throwing soup at a painting, despite the obvious differences. In his sentencing remarks, he stated: “Secondly, I reject any suggestion that your offending can properly be described as peaceful or nonviolent. Throwing the contents of a tin of soup in somebody’s face would not be a peaceful act, and there is nothing peaceful about throwing the contents of tins of soup at a painting in an art gallery, with members of the public, including children, present.”
This mischaracterisation is crucial because it allowed the judge to sidestep the legal protections afforded to peaceful protest under the European Convention on Human Rights (ECHR). By labelling the protest as violent, he circumvented the need to consider Articles 10 and 11 of the ECHR, which safeguard freedom of expression and assembly.
The two engaged in nonviolent civil disobedience targeting an inanimate object, fully aware that the painting was protected by glass and would not be harmed. Equating their actions with physical violence against individuals stretches the definition of violence beyond reasonable limits.
2. Ignoring the proportionality test required by human rights law
Under Articles 10 and 11 of the ECHR, any restrictions on freedom of expression and assembly must pass a proportionality test. Courts are obligated to balance the protesters’ rights against the harm caused by their actions. Recent legal precedents, such as the Attorney General’s Reference on the Colston Four, have emphasised the necessity of this balancing act, even in cases involving property damage.
Judge Hehir failed to conduct this proportionality assessment. By dismissing their motivations and the context of their protest, he neglected to weigh their fundamental rights against the actual harm caused—a minor damage to a picture frame. This omission undermines the legal requirement to carefully evaluate whether interference with protest rights is justified and proportionate.
3. Sentencing based on hypothetical harm rather than actual damage
In his sentencing remarks, Judge Hehir focused on what could have happened if the protective glass had failed, speculating about potential damage to the priceless painting. This approach deviates from legal principles that mandate sentencing based on actual harm caused, not on hypothetical scenarios. The jury convicted the activists for the real damage to the frame—not for any damage to the painting, which remained untouched.
By prioritising speculative risks over concrete facts, the judge imposed a sentence that does not reflect the severity of the actual offence. Sentencing should address the specific harm caused by the defendants’ actions, not punish them for imagined outcomes. This deviation sets a dangerous legal precedent where individuals can be penalised for potential consequences rather than their proven conduct.
4. Imposing disproportionate sentences contrary to guidelines
Sentencing guidelines for criminal damage offences emphasise that penalties should correspond to the harm inflicted. Damage valued between £5,000 and £10,000 typically attracts community orders or fines, not custodial sentences. Despite this, Plummer received a two-year prison sentence, and Holland was sentenced to 20 months, both expected to serve at least half in custody.
These sentences are excessively harsh given the minor nature of the damage and their peaceful intentions. The punishment far exceeds what is proportionate to the offence, raising serious questions about fairness and consistency in the application of justice. Such disproportionate sentencing undermines public confidence in the legal system’s ability to administer justice impartially.
5. Setting a dangerous precedent that chills future protests
By treating nonviolent civil disobedience as violent crime and imposing severe sentences, the court sets a precedent that threatens the fundamental right to protest. If peaceful activists can be criminalised and harshly punished based on hypothetical harm, it creates a chilling effect that discourages legitimate expressions of dissent.
This erosion of protest rights is particularly troubling in a democratic society where civil disobedience has historically been a catalyst for social change. As Phoebe Plummer articulated in their mitigation statement:
“I made those choices because I believe that nonviolent civil resistance is the best, if not only, tool that ordinary people have at their disposal to bring about the rapid social change required to protect life… No sentence I receive today will change that peace.”
By ignoring their motivations and the urgency of the climate crisis they aim to highlight, the court fails to recognise the vital role of protest in addressing pressing societal issues.
Conclusion
The sentencing of Phoebe Plummer and Anna Holland reveals significant legal missteps that undermine fundamental human rights protections. By mischaracterising their peaceful protest as violent crime, failing to apply the proportionality test, sentencing based on hypothetical harm, imposing disproportionate sentences, and setting a precedent that threatens future protests, Judge Hehir’s approach raises profound concerns about justice and democracy in the UK.
This case is not merely about two individuals; it reflects a broader trend of eroding protest rights. In a time when voices of ordinary people are crucial for confronting global challenges like the climate collapse and genocide, the justice system must uphold the rights enshrined in law rather than suppress them through flawed legal reasoning and excessive punishment.