Serious Annoyance: Protest, Reverence and the Limits of Toleration at Stonehenge

Introduction

When members of Just Stop Oil threw orange powder over Stonehenge on the eve of the summer solstice, the gesture was as symbolic as it was disruptive. They were charged with public nuisance under section 78 of the Police, Crime, Sentencing and Courts Act 2022 (“PCSC 2022”), which criminalises conduct causing serious harm, including “serious distress, serious annoyance or serious inconvenience.”
“Serious” is undefined. The judge left the question to the jury. The wider issue is constitutional: can an act calculated to offend collective reverence amount to criminal nuisance, or must a democratic society endure even its most jarring protest?

Liberty, restraint and Baroness Hale

Baroness Hale has long warned that law should shield rights, not feelings. In Religious Rights and Freedom of Speech [2014] Public Law 367, she argued that feelings are too subjective to justify restriction; only objective harm can limit freedom under Article 10(2) of the European Convention on Human Rights. In a pluralistic society, she wrote, “we ought to be able to cope with having even our deepest feelings offended.”

Hale’s distinction between moral offence and legal harm aligns with, rather than originates, the proportionality analysis that governs Articles 10 and 11. Proportionality emerged from Strasbourg, but Hale gave it a distinctly British moral clarity: rights are not contingent on collective comfort. The Supreme Court in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) [2023] AC 505 reaffirmed that proportionality must either be built into an offence or applied case by case. That approach underpins DPP v Ziegler & Ors [2021] UKSC 23; [2022] AC 408, where the Court held that every stage of the criminal process:  arrest, prosecution, conviction, and sentence is a separate interference requiring its own proportionality test. Even deliberate obstruction may remain protected expression; proportionality is fact specific.

Hale’s principle has since found clear judicial expression. In R v Hamit Coskun [2025] 10 WLUK 150 [2]–[3], the Court observed that “the criminal law is not a mechanism that seeks to avoid people being upset… The right to freedom of expression, if it is a right worth having, must include the right to express views that offend, shock or disturb.” Her moral distinction is now judicially embodied: the law protects rights, not sensitivities.

Yet that approach has limits. The Strasbourg Court recognises that expression genuinely endangering public safety or social cohesion may be restricted under Article 10(2). The challenge is to distinguish that objective risk from mere collective offence.

Stonehenge, access and the politics of timing

Stonehenge is more than an archaeological monument. At the solstice it becomes a ritual gathering linking modern Britain to its prehistoric past. The protesters chose that moment precisely because it was sacred to others. Their act spoke in two languages: environmental protest and cultural provocation.

From a conservative standpoint, timing matters. It turned dissent into intrusion. Yet, as Sedley LJ observed in Redmond-Bate v DPP [2000] HRLR 249 [20], “freedom only to speak inoffensively is not worth having.” The criminal law protects order, not orthodoxy. Reverence may sustain culture, but it cannot be compelled.

Stonehenge is administered under conditions of managed access, and at the solstice those conditions protect both ritual gathering and public safety. By crossing into a restricted area without permission, the protesters trespassed. That choice does not silence Article 10 or 11, but it diminishes their force when set against the State’s duty to keep people safe and the site open to all.

Public nuisance, seriousness and the role of trespass

Section 78 PCSC 2022 modernised the common-law offence of public nuisance, drawing on Law Com No 358 (2015), and introduced a reasonable-excuse defence. The point was underscored in the Silverstone prosecution, where Just Stop Oil activists ran onto the track during the 2022 British Grand Prix and were charged with public nuisance after halting a live Formula One race, and the Court of Appeal in R v Joshua Smith [2025] 2 WLR 215 [42] confirmed that Parliament intended the reasonable-excuse defence to encompass the exercise of rights under Articles 10 and 11.

Section 78(2)(c) itself fuses emotional and material harm, listing “serious distress, serious annoyance, or serious inconvenience” as equivalent. The absence of definition risks elevating subjective offence into legal harm; precisely the slippage Baroness Hale warned against.

Two questions arise. First, whether the annoyance caused was serious: a factual threshold for the jury. Second, if so, whether conviction would be a proportionate interference. Because section 78 includes a reasonable-excuse defence, proportionality is not automatic. If the alleged harm consists chiefly of outrage at the protest’s symbolism or timing, the jury must ask whether there was any objective interference with public rights such as access, safety or property.

Trespass is relevant to that assessment. Entry onto private or restricted land does not extinguish Convention rights but weakens them. In Hallam & Ors [2025] EWCA Crim 199 [34]–[36], drawing on Steel v United Kingdom (1998) 23 EHRR 293, where environmental protesters entered a construction site and were arrested, the Strasbourg Court held that even trespassory protest falls within Article 10, though the interference may be justified by safety and property concerns. In Appleby v United Kingdom (2003) 37 EHRR 38, the Court found that protesters excluded from a privately owned shopping centre had no right of access under Article 10, confirming that freedom of expression does not entail a general right to use private property as a platform. Thus, the Court of Appeal held that trespassory protest remains within Articles 10 and 11, though the weight accorded to those rights in the proportionality balance is reduced. Stonehenge occupies an intermediate category: public land subject to restrictions. The fact that entry was unauthorised does not align the case with Appleby, which concerned private property, but rather with Steel, involving intrusion into a public construction site. Strasbourg has treated such acts as within Article 10, though with diminished weight.

The unauthorised entry therefore adds weight on the State’s side of the balance, but it is counterbalanced by the protest’s brevity, peacefulness and limited interference. Trespass may justify police intervention but not necessarily a criminal conviction consistent with Articles 10 and 11.

Because this was a collective act, Article 11 reinforces Article 10. Peaceful assembly carries duties of restraint where others’ rights are affected, but the joint nature of the protest enhances its expressive character and thus the level of protection it enjoys.

Expression that shocks: Hale tested

Strasbourg has repeatedly protected expressive acts that offend sensibilities. In Tatár and Fáber v Hungary (Apps 26005/08 and 26160/08, 2012), the Court held that displaying a controversial banner at a counterdemonstration remained protected political expression. In Murat Vural v Turkey (App 9540/07, 2014), pouring paint over Atatürk statues was treated as symbolic protest, not hate speech. In Shvydka v Ukraine (App 17888/12, 2014), tearing a presidential ribbon during a public ceremony was protected under Article 10. In Genov and Sarbinska v Bulgaria (App 52358/15, 2021), political graffiti on a public monument fell within legitimate protest. And in Maria Alekhina v Russia (App 38004/12, 2018), the imprisonment of the Pussy Riot performers for their cathedral protest was held to violate freedom of expression. Each case affirmed that symbolic acts, even when disturbing, irreverent or politically divisive, lie at the heart of Article 10 protection.

Domestic courts have applied the same principle. In Casserly [2024] EWCA Crim 25 [37], the Court of Appeal quashed a conviction arising from an anti-monarchy protest, holding that briefly shouting abusive remarks at a royal procession remained protected political expression under Article 10. The Court reaffirmed that expression does not lose protection because it is “offensive, disturbing or shocking.”

The point was brought into sharp focus by R v Hamit Coskun [2025] 10 WLUK 150. Mr Coskun burned a Qur’an outside the Turkish Consulate; a profoundly offensive act. The Court quashed his conviction, holding that offence alone cannot satisfy the necessity limb of Article 10(2). In doing so, it reaffirmed that “being angry is not the same as being harassed, alarmed or distressed” [41], and that the law must guard against criminalising provocation merely because it elicits outrage. Both Coskun and the Stonehenge protest trespassed on collective reverence, one religious, the other cultural, but neither involved violence, intimidation or lasting damage. To criminalise such acts for offence alone would reintroduce blasphemy by another name.

Trespass, damage and proportionality

These principles define the legal perimeter of protest; the question then becomes how far expressive acts may offend before the law intervenes. Where protest causes alleged damage, proportionality depends on degree. In Attorney General’s Reference (No 1 of 2022)[2022] EWCA Crim 1259 [115]–[121], the Court held that significant damage will usually make prosecution proportionate, but minor or temporary damage may require case-specific evaluation. Whether damage exists is “a question of fact and degree” (Morphitis v Salmon (1989) 194 JP 365).

There is a limited irony in the alarm reported by some witnesses. The defendants chose orange powder precisely because it would not damage the stones. Yet that choice carried its own risk. Paint has become a familiar visual signature of Just Stop Oil protests, instantly recognisable as symbolic expression. By contrast, a cloud of fine orange powder is less immediately identifiable. Its unfamiliar appearance appears to have led some onlookers to fear that the substance might be hazardous. That momentary misinterpretation, however, cannot elevate a non-damaging, peaceful act into serious harm for the purposes of section 78. Proportionality requires a distinction between objective risk and transient alarm.

If, as evidence suggests, the orange powder caused no lasting mark and cost little to remove, the act sits near the symbolic end of the spectrum. Even allowing for the trespass element, a conviction would risk disproportionate interference with Articles 10 and 11.

Who decides: the jury’s role

The constitutional balance between expression and order ultimately returns to the jury, the community’s conscience. Because reasonable excuse and proportionality are evaluative, they are questions for the jury. As the Court emphasised in R v Hamit Coskun [2025] 10 WLUK 150 [2]–[4], the criminal law protects people, not feelings: it punishes harassment and disorder, not shock or offence. Whether conduct crosses that line is for the fact finder to decide in context.

The principle runs from Ziegler [60], where protesters blocking a road to disrupt an arms fair were acquitted after the Supreme Court held that proportionality is a fact-specific question for the tribunal of fact,  through R v AY [2010] 2 Cr App R 15, which confirmed that whether a defendant acted reasonably under public-order legislation is a matter for the jury. In R v Nicholson [2006] EWCA Crim 1518, the Court held that a jury must decide whether the defendant’s conduct in an anti-abortion protest was justified in context, and in R v Asmeron [2013] 2 Cr App R 19, that proportionality and reasonable excuse are evaluative issues to be left to the fact finder. Judges should withdraw such questions only where no reasonable jury could find for the defendant, as reaffirmed in Bello (1978) 67 Cr App R 288 and Attorney General for Northern Ireland’s Reference (No 1 of 1975) [1977] AC 105, both underscoring that only the jury may determine fairness on contested facts. As Lord Bingham observed in R v Wang [2005] 2 Cr App R 8 [16], the jury remains “an insurance that the criminal law will conform to the ordinary man’s idea of what is fair and just.”

Conclusion

The Just Stop Oil protest was designed to provoke, using the sanctity of the solstice to amplify its message. Yet the criminal law cannot exist to police reverence. Unless the protest materially obstructed public access, endangered others, or caused significant damage, a conviction for public nuisance would rest on outrage rather than harm.
Trespass is relevant but not decisive. It diminishes, yet does not destroy, protection under Articles 10 and 11. The jury must weigh the protest’s expressive character, brevity and impact against any intrusion upon the rights of others.

Baroness Hale’s warning against legislating for sensitivity, reaffirmed in Coskun, remains decisive. The State may restrain violence but not emotion; it protects rights, not feelings. As the Court observed in Coskun [2], “the criminal law is not a mechanism that seeks to avoid people being upset.” To extend liability to mere offence would not safeguard order but sanctify outrage: an inversion of the liberty the law exists to preserve. A society confident in its heritage should answer provocation with proportion, not prosecution.

Elliott Wright

Pupil Barrister