Yesterday Stuart Rodger, a 23-year-old former Lib-Dem political activist, was sentenced at Glasgow Sheriff Court to carry out 100 hours of community service under the horribly named “Community Payback Order”. Mr Rodger pled guilty to a charge of behaving in a threatening or abusive manner contrary to Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.
So what? These charges arise regularly in the Scottish courts. Every day there are people being convicted of behaving in such a manner, or pleading guilty to having done so. Why mention Mr Rodger?
His offence was rather unusual. When the Prime Minister came to Glasgow on 31st July this year, Mr Rodger hid in a toilet in the Grand Central Hotel and, at a suitable moment, burst into the room where Mr Cameron was speaking to Party colleagues.
Mr Rodger shouted “No ifs, not buts, no public sector cuts.”
Today he found himself facing a charge of behaving in a threatening or abusive manner by violating a security cordon, shouting and failing to desist, attempting to approach Mr Cameron and causing fear and alarm.
There are countries in the world where bursting into a room with the Head of Government in it could lead to you being shot, but thankfully not so in Scotland.
However, Mr Rodger was trying to make a political point and, as a former supporter of the Lib Dems, felt betrayed enough by the Coalition to make a noisy and dramatic protest.
The charge has to be read as a whole, because otherwise one might think that it was being stated to be an offence to approach Mr Cameron. Instead it is the totality of actions alleged which together constitute the offence.
Mr Rodger pled guilty, and therefore there was no trial or attempt to argue that there was a defence, either in that the conduct was not such as would amount to “threatening or abusive behaviour” or that, under the European Convention on Human Rights, there are rights to free expression and to state political views without fear of arrest.
I will say that, in the absence of the Crown statements and the full investigation undoubtedly carried out by the lawyer for Mr Rodger, any opinion I express or comment I make about his pleading guilty can only be based on the information available publicly. It should not be taken as criticism of the lawyer acting for Mr Rodger. Nor should it be taken as criticism of Mr Rodger who will undoubtedly have considered all relevant issues and his legal advice before deciding what plea to enter.
Section 38 reads as follows:-
38 Threatening or abusive behaviour
(1) A person (“A”) commits an offence if—
(a) A behaves in a threatening or abusive manner,
(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and
(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.
(2) It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.
(3) Subsection (1) applies to—
(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and
(b) behaviour consisting of—
(i) a single act, or
(ii) a course of conduct.
(4) A person guilty of an offence under subsection (1) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.
This offence was included in the 2010 Act in an effort to lay down a statutory equivalent to the former “breach of the peace” charge, whose flexibility and adaptability had led to it coming into conflict with the requirement for certainty in the law.
But let’s look for a minute at this charge, as faced by Mr Rodger.
The three essential elements of the charge are:-
- Behaving in a threatening or abusive manner;
- In a way likely to cause a reasonable person to suffer fear or alarm; and
- The accused intends to cause fear and alarm or is reckless as to doing so.
Whilst, in the present climate, popping unexpectedly into the room where the PM is speaking might cause “fear or alarm” that is clearly at the bottom end of the spectrum. Jumping out at someone and shouting “boo” could equally satisfy parts 2 and 3 of the charge.
But what about part 1?
It is necessary to behave in a “threatening or abusive manner”. According to the BBC report the precise details of the charge, as referred to above were that he breached Section 38 by:-
- violating a security cordon,
- shouting and failing to desist,
- attempting to approach Mr Cameron
- and causing fear and alarm.
Based on the report, I struggle to see where the “threatening or abusive” behaviour comes in, unless, per se, the act of approaching the Prime Minister is deemed to be threatening.
Subsection 2 provides a defence where the accused can show that the conduct was reasonable. Mr Rodger could have argued this, on the basis that there is a right to protest.
One wonders if the Scottish Legal Aid Board would have granted Legal Aid to Mr Rodger for his defence if he had elected to contest the charges on the basis that he was neither threatening or abusive and that, in any event, his conduct was reasonable. In the absence of Legal Aid for a defence of that nature, then it may be that, as a practical matter, Mr Rodger would have had little choice other than to plead guilty. (I have no knowledge of any application by Mr Rodger for Legal Aid, nor of the outcome of any such application. I merely write from having dealt with the Legal Aid Board over many years).
I am sure that Mr Cameron had no input to the decision to prosecute Mr Rodger. Maybe he should have been called as a defence witness!
We must build stronger societies and stronger identities at home. Frankly, we need a lot less of the passive tolerance of recent years and a much more active, muscular liberalism. A passively tolerant society says to its citizens, as long as you obey the law we will just leave you alone. It stands neutral between different values. But I believe a genuinely liberal country does much more; it believes in certain values and actively promotes them. Freedom of speech, freedom of worship, democracy, the rule of law, equal rights regardless of race, sex or sexuality. It says to its citizens, this is what defines us as a society: to belong here is to believe in these things. Now, each of us in our own countries, I believe, must be unambiguous and hard-nosed about this defence of our liberty.
How far does the approbation of “freedom of speech” extend?
Is the issue for Mr Rodger that he has previous for protest against this government?
In February, as detailed below, he was fined for committing a breach of the peace by shouting and throwing an egg at Nick Clegg.
Three particular comments from the report jump out at me.
Firstly Mr Rodger’s laconic response – “It was purely accidental. It was designed to hit Nick Clegg.”
Secondly the words of his defence lawyer, which, as is often the case turned out not to be an accurate prediction – Miss Ryan said Rodger was “not likely to behave like this again”.
Thirdly, the words of Sheriff Adair – “This country prides itself in free speech and protesting within limits, but your actions were criminal.”
Maybe it was because of the Sheriff’s words that Mr Rodger decided that he would leave the eggs and the paint behind on this occasion, and that he would simply shout the protest slogan at the Prime Minister?
By comparison with other highly publicised protests, and the consequences for the protestors, Mr Rodger’s sentence, whilst a serious one, Community Payback Orders being described as alternatives to imprisonment, was far short of what it could have been. On summary complaint, as this case was, a sentence of 12 months in gaol could have been passed.
We have recently seen Trenton Oldfield imprisoned for six months for disrupting the Boat Race, as part of his protest against government spending cuts.
In Russia the members of the punk band, Pussy Riot, were on the receiving end of two years’ sentences in penal colonies after conviction for hooliganism motivated by religious hared for attempting to sing protest songs about President Putin in a Russian Orthodox cathedral.
As Tom Esslemont of BBC News commented:-
Once the sentences were handed down, the United States and the European Union were quick to condemn them as “disproportionate”. Certainly many feel that the initial protest by Pussy Riot was blasphemous, foolish and wrong. But Russia’s most outspoken critics say the trial took things to another extreme; it showed how the country was returning to the dark ages, said one.
Mr Rodger’s Payback Order is of course far less serious than a prison sentence. However, his protest to the Prime Minister was a peaceful one.
Article 10 of the European Convention on Human Rights states:-
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The criminalisation of protest has been an issue as long as there have been authorities against which to protest. But at a time in the UK where the issues seem very stark, and where all of the mainstream political parties are publicly in agreement that there must be further cuts, only the scale being in dispute, those who do not have a direct political voice, whether from the left wing, right wing or, as with Mr Rodger, disaffected Lib Dems, can only raise these issues by peaceful protest.
Should Mr Rodger repeat his behaviour with another member of the Cabinet, he would face a prison sentence on the basis that the alternative to custody had not worked.
The bottom line? In a “genuinely liberal country” as described by the Prime Minister is prosecution of protesters consistent with being unambiguous and hard nosed in protection of our liberties?
Posted by Paul McConville
Below are extracts from the two news items referred to above regarding Mr Rodger, and links to the full reports.
BBC News website 2 November 2012
Stuart Rodger, 23, hid in a toilet at the Grand Central Hotel before bursting into a room where the prime minister was addressing Conservatives.
During an appearance at Glasgow Sheriff Court, the former Lib-Dem political activist admitted behaving in a threatening or abusive manner by violating a security cordon, shouting and failing to desist, attempting to approach Mr Cameron and causing fear and alarm.
He was handed a community payback order with the condition he has to carry out 100 hours of community service. This was reduced from 150 because of his guilty plea.
Procurator fiscal depute John Slowey told the court Rodger hid in a toilet prior to making his entrance on 31 July. It was heard he shouted “No ifs, not buts, no public sector cuts.”
Mr Rodger’s lawyer said the “security cordon” he got past was someone asking if he had a pass, and Mr Rodger had only gone a few metres into the room.
BBC News website 20 February 2012
Stuart Rodger threw an egg containing the liquid as Mr Clegg made a visit to Glasgow to meet party representatives last August. He was fined £200 at Glasgow Sheriff Court after admitting a breach of the peace.
The court earlier heard how Rodger had been “shouting aggressively” as he sprinted towards Mr Clegg’s car as it arrived at the hall.
Prosecutor Linda McCaffer said: “Police tried to stop the accused and, as they did so, he produced an egg which was concealed in his right hand. This contained blue paint. The accused threw this towards Nick Clegg, who by this time was making his way into the building.”
Rodger – a third-year student at Glasgow University – was later arrested and told police: “It was purely accidental. It was designed to hit Nick Clegg.”
His lawyer, Clare Ryan, told the court Rodger was a Lib Dem activist who had been “particularly upset” at the party teaming up with the Tories after the General Election in 2010.
She added: “He was really against the coalition, but that does not give him the right to offend. He was protesting on that day, but he accepts that he crossed the line.”
Miss Ryan said Rodger was “not likely to behave like this again”.
Sheriff Brian Adair told the student: “This country prides itself in free speech and protesting within limits, but your actions were criminal.”