Locking up climate protesters for throwing soup is the mark of broken justice system

Our prisons are full to bursting point with more people behind bars than ever, writes Alan Rusbridger. So why are we adding to their numbers with peaceful activists – and ignoring our proud history of civil disobedience?

Gavin Collins was an off-duty police officer enjoying a night out in central London when he was attacked by a pair of thugs. They repeatedly punched and kicked him, even after he’d been floored. Gavin needed titanium plates in his cheek and one eye socket following the unprovoked attack. The thugs went on to punch and kick another officer as well as an innocent bystander.

One of the attackers had three previous convictions for similar offences of common assault in the previous three years. As it happened the thugs were brothers, and the sons of one of Britain’s richest property tycoons.

But they were in luck. When they eventually appeared before Recorder Christopher Hehir in Southwark Crown Court, the judge was in a forgiving mood. The thugs were given suspended sentences – one of 15 months and one of six months. It was reported they smiled when their sentences were read out and they realised they weren’t going to jail.

The case dates to 2014, before the days of sentencing remarks being available online. But the reports of the hearing do not include any remarks from the judge expressing concern about the damage to the policeman’s face.

Fast forward to last week when the same judge had to consider a different kind of case involving two young women who did not attack anyone, but did throw a can of soup at a painting by Vincent van Gogh.

No one needed surgery. The picture frame was moderately affected because – fun fact – tomato soup is apparently “slightly acidic.” But Hehir reacted very differently, jailing one young woman for 20 months and the other for more than two years.

Hehir was very upset by the fact that the picture frame had suffered in the soup-throwing protest, intended to draw attention to the climate crisis. It was, he said, the sort of frame that Van Gogh would have favoured. And now it had lost its sheen.

Summoning the spirit of Van Gogh, instinctively one of life’s radicals, might be thought a delicate thing for the judge to have done. One suspects that the great artist would instinctively have cared more about the climate protesters and their cause than a picture frame. And anyone who has spent more than two minutes looking at Van Gogh’s 1890 painting of prisoners exercising can imagine what he would have made of two idealistic young women being thus caged up.

But never mind Van Gogh. Hehir considered the women’s actions to be “extreme, disproportionate and idiotic … and not a case for merciful sentencing”. Unlike the thugs who so savagely beat up Gavin Collins. And unlike a policeman, Matthew Longmate, whom Hehir did not send to jail in 2015 for leaving a vulnerable woman “humiliated” when he and a fellow officer had simultaneous sex with her in a police car. Hehir said he wanted to bring this sickening story to a close “with a final act of mercy”. The Court of Appeal disagreed and jailed Longmate for 12 months.

It was the same Hehir who recently jailed other climate change activists for up to five years after a Sun reporter eavesdropped on a Zoom call in which they plotted jamming up the traffic on the M25 – and then grassed them up to the police. The judge would doubtless argue his hands are tied by tougher sentencing guidelines over forms of protest imposed by the last Tory government. Or maybe he truly believes in what he’s doing.

It seems to me that there is room for subjective views in relation to the seriousness of deploying a can of Heinz soup in an art gallery, the level of harm it caused, whether the protest was peaceful or not, and whether it was made more serious by having been premeditated.

So there’s an element of the judge making some highly personal calls. You can imagine a different judge interpreting the case differently.

But, more broadly, something doesn’t add up. Our prisons are full to bursting point at an annual cost per prisoner of £51,724, which is almost exactly the same as the boarding fees at Winchester College. And five of the most senior judicial figures of recent times – none of them woke liberals – have just published a paper deploring the fact that, during their working lives, the length of custodial sentences, as well as prison numbers, have roughly doubled.

“There is nothing that justifies this doubling of sentencing lengths,” they wrote. They note that prison sentences for women are particularly damaging to them and their families. “We call for an honest conversation about what custodial sentences can and cannot achieve … and urge a return to more modest proportionate sentences across the board.”

This from lawyers a good many rungs up the judicial ladder from Hehir’s modest perch at Southwark Crown Court.

Only six years ago the court of appeal freed three activists jailed for protesting over fracking. The judgment makes interesting reading, including the research (not contested) from the activists’ KC, Kirsty Brimelow, that up to that point peaceful protesters in the UK had not been imprisoned for their actions since 1932.

Reference is made to the 2006 High Court case of Margaret Jones, who broke into RAF Fairford to try and prevent US bombers from attacking Iraq. In that case Lord Hoffman described a kind of unwritten understanding that should influence how the courts deal with such cases.

“Civil disobedience on conscientious grounds has a long and honourable history in this country,” he said. Citing the suffragettes he added: “People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history … It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind.”

The understanding he argued for looked like this: “The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience … The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account.”

No one could seriously argue that Phoebe Plummer and Anna Holland caused “excessive damage or inconvenience” by throwing a bit of soup (though Hehir had a go). No one could seriously contest that these were acts of conscience on perhaps the gravest issue of our age.

But somewhere in the last 20 years we seem to have forgotten this country’s “long and honourable” history of civil disobedience on conscientious grounds – and we are now shoving more people into prisons that can barely hold them, and which may well damage them.

Keir Starmer acted for one of the Fairford protesters – a man called Richards who broke into the RAF base at the height of Operation Iraqi Freedom in 2003 intending to set fire to the wheels of a B-52 bomber. As prime minister, he’s now having to release thousands of prisoners because there’s literally no room left to hold them.

Maybe he can join a few dots.

As for Hehir, his Twitter account is, perhaps understandably, a private one. His profile picture is that of Lionel Hutz, the sleazy and incompetent lawyer often hired by the Simpsons. This suggests a sense of humour.

Hutz’s most famous quote is: “I move for a bad court thingy.” It feels apt.