Examining the sentencing in the criminal case of R –v– Oldfield

Whether you are a long time fan of the Oxford-Cambridge boat race or a casual observer to the event you would have to have been living under a rock to be unaware of what took place earlier this year when protestor, Trenton Oldfield, swam out ahead of the two teams and caused the race to be stopped for fear that the boats might collide with him. It was the first time in the 158-year history of the event that it had been disrupted in this manner.

Oldfield was arrested and charged with a public nuisance offence. He pleaded not-guilty to the charge and claimed that he was protesting against the race as he believed it to be a symbol of elitism in British government. However, the jury did not believe in his defence and found him guilty.

On 19th October Judge Anne Molyneux passed sentence on Oldfield sentencing him to 6 months in jail and a fine of £750.

She said Oldfield had acted dangerously, disproportionately, had not shown what he was actually protesting against, and displayed prejudice in sabotaging the event which Oldfield regarded as elitist:

“You decided that you had the right to stop members of the public enjoying a sporting competition which they had chosen to go and watch. You did not have that right. You did nothing to address inequality by giving yourself the right to spoil the enjoyment of others. In doing so you acted without regard for equality and contrary to the meaning of it. You made your decision to sabotage the race based on the membership or perceived membership of its participants to which you took exception. That is prejudice. No good ever comes from prejudice. It is a necessary part of a liberal and tolerant society that no one should be targeted because of a characteristic with which another takes issue. Prejudice in any form is wrong.”

Judge Molyneux went on to say that, “There were many other ways you could have promoted your views more effectively. It was not clear to anyone who saw what you did what your views actually were. There was no immediate or instant need to act as you did.”

The sentence seemed to come as quite a surprise to Oldfield and many of his supporters who took to Facebook and Twitter complaining about the inequality of the sentence and how it was an infringement upon free speech and peaceful democratic protest. That the laws of England & Wales were clearly only designed to protect the political elite. The Toffs.

The criminal offence of public nuisance is a common law offence, that is to say that it is a form of criminal offence which has been developed entirely by the courts over the years, and for which there is no actual legislation. It is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims. As a result of this the maximum penalty can technically be life imprisonment or a fine or both. While it is possible that in the distant past there may have been several members of the judiciary, who were also former Oxbrige graduates, that helped develop the law in this area, I find it highly unlikely that they would have envisaged an individual like Oldfield dodging oars to protest about apparent inequalities in society.

So was the sentence handed down to Oldfield truly excessive? To answer this we should look at the most recent case law in the area of public nuisance (albeit those that have received the most coverage as a publice nuisance does cover a wide range of offences):

In R v Millward 1986 8 Cr App R S 209 the Defendant was infatuated with a female police officer. The Defendant sent substantial phone calls to her and was sentenced on many previous occasions including in custody. At Court the Defendant was sentenced to 30 months prison on this occasion.

R v Ruffell 1991 13 Cr App R (S) 204 involved a Defendant who was an illegal rave organiser. The Defendant was sentenced to 12 months prison, suspended, and £7,000 fine. This fine was later overturned on appeal due to means.

R v Ong 2001 1 Cr App R (S) 117 the Defendant in this matter was charged with a public order offence for planning to turn off lights at a Premiership football match. The Defendant intended to financially gain from the event by placing bets on its outcome with the lights going out. He was sentenced to 4 years imprisonment.

In R v Eskdale 2002 1 Cr App R (S) 28 the Defendant made 1000 phone calls in 2 weeks to 15 different complainants. The calls were of a sexual nature and he made one woman stand naked in front of her window. Due to the Defendant having a history of sexual offences and being described to the Court as dangerous he was sentenced to 9 years imprisonment.

R v Lowrie [2005] 1 Cr App R (S) involved a guilty plea by the Defendant to a host of hoax phone calls to the emergency services. The Defendant had numerous previous convictions for similar offences resulting in the latest sentence of 5 years. This sentence was then increased to 8 years on appeal.

According to his partner, Deepa Naik, Oldfield would not be deterred from protesting again. Speaking outside court last week, she described Britain and London as being brutal and deeply divided. “Trenton has spent his adult life working on these issues and his direct action protest was a natural extension of his everyday work. Trenton’s protest was a reaction to an increasingly brutal business, media and political elite.”

She added: “Great Britain has convinced many it is the home of democracy and the gauge of civilisation. Anyone living here today knows Britain is a brutal, deeply divided, class-driven place. London today is the most unequal society in the Western world. This poverty and inequality is entirely unnecessary and has been severely exacerbated by Government cuts and reductions in civil liberties.”

Regardless of what one might think about elitism in Britain or whether or not it is the most pressing matter that should be dealt with in British society is neither here nor there. As someone who is not an Oxbrige graduate, nor a regular observer of the boat race, I certainly do not have a vested interest or subjective opinion on this case. I have merely looked at the facts of the case and the common law to reach my conclusion, such as it is. By looking at the relevant case law it is possible to see that there is an argument to say that the punishment was reasonable and within the limits of the law. In fact, it could be argued that Trenton Oldfield could have received far worse.

The judge, in her sentencing remarks, does not say that protesting should be banned but in fact suggests that it is the manner in which he protested that resulted in a public nuisance. There were many ways that Oldfield could have got his message out on that day but he specifically went for one most likely to result in as much publicity as possible. At the time I, like many others, thought that he might be protesting against the war in Afghanistan or the government’s austerity measures, and to be completely honest when I heard it was over elitism in Britain I did not know whether to laugh in haughty derision or simply cry at his seeming stupidity.

One thing is for sure, should Ms Naik’s statements be correct and not merely hyperbole by a supportive partner, then Mr Oldfield might well expect even tougher sentences the next time he decides to rail against “Toffish Britain”. I just hope that upon his release he does not decide to try to emulate Emily Davison at Epsom Downs Racecourse’s Ladies Day on the 31st May 2013. Horses are, after all, a lot harder to stop than boats.

Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.