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Royal Courts of Justice protest

Three Court of Appeal judges – the lady chief justice Baroness Carr of Walton-on-the-Hill, Lord Justice William Davis and Mr Justice Garnham – heard a case yesterday brought by the attorney-general to stop climate change activists using the defence of “belief of consent” when they face prosecution for causing criminal damage.

In some cases protestors have successfully put forward a defence based on their honest belief that property owners would have consented to the damage caused if they had properly understood the need to act to stop the climate emergency.

In what the supporters called an “Armistice walkout”, more than 100 people who had been watching the case walked out of the hearing at 11.11am yesterday “in remembrance of the democratic freedoms our grandparents fought for”.

They gathered in the hall of the court building to hold a “citizens’ jury” to consider whether the British justice system “serves the public interest or the interests of international finance and corporations”.

The Court of Appeal reserved judgment, which it expected to deliver within four weeks.” In The Times, “Brief”, email sent to lawyers and judges etc

Text from The Times Legal Brief, 22 February 24

Jury Rigged?

THE government’s senior law officer will this week ask the appeal court to close down the last remaining defence available to climate change and other protesters facing criminal damage charges.

The move follows a series of high-profile cases where juries have, it appears, voted with their conscience and acquitted protesters of spraying paint, smashing windows or toppling statues.

None of which sits well with a government apparently intent on criminalising peaceful protest. Only last month Michel Forst, the UN’s special rapporteur on environmental defenders, expressed alarm that fundamental UK freedoms were being crushed by “regressive” public order laws, punitive and unprecedented jail sentences, and harsh bail conditions. He was alarmed that judges, such as Silas Reid (Eye 1594) had prevented “public nuisance” road blockers from mentioning climate change in evidence or mitigation, even when their liberty was at stake.

This week’s test case raises another concern: the gradual erosion of legal defences that protesters can run before the jury. Attorney general Victoria Prentis KC will argue that there is, in effect, no realistic defence in law for activists who cause damage to buildings or property. Prentis and the courts cannot interfere with a jury’s unqualified right to acquit. However, by taking a “point of law” before the judges, she is trying to ensure it won’t happen again.

The specific case cannot be identified for legal reasons. However, recent direct action has seen a tactical switch from general disruption to targeting those investing in, profiting from or promoting fossil fuels. Some demonstrators have been cleared after running a curious defence: telling jurors that had the property owners known the full impact of climate change, they would have “consented” to the damage.

Activists were forced to rely on the somewhat tenuous get-out clause in the 1971 Criminal Damage Act, because the more usual defences of right to peaceful protest and freedom of expression had been withdrawn in another “point of law” appeal in 2022.

But the clampdown may yet backfire. Juries have historically provided an important check, acquitting when they think the law may be harsh, unfair or out of step with public opinion.

Some recent Insulate Britain, Extinction Rebellion and Just Stop Oil acquittals have followed protesters citing their moral, rather than legal justification. Which means all eyes will be back on Judge Reid at Inner London Crown Court, who, as the Eye went to press, was due to preside over a climate-change trial involving allegations of criminal damage.

Text from Private Eye, (available in print) 16 February 24

On Thursday 9 November, the eminent legal scholar, Professor John Spencer CBE, wrote an opinion piece for the Times, offering more invaluable support for the Defend Our Juries campaign: “Defying a judge is not always contempt of court – Jury equity could be seen as an important constitutional safeguard”

He argues that on a proper interpretation of the law, courts should giv[e] protesters some chance to explain the reasons for their actions” and not punish “those who try to make the jury aware of [the principle of jury equity]”.

He concludes by quoting E.P. Thompson in a stinging rebuke to those undermining trial by jury: “There are worse offences to the body politic than contempt of court; and these are contempt for our constitutional history and contempt for the people of this country.”

Defying a judge is not always contempt of court The Times, 9 November 23 [This article is behind a paywall]

Judge threatens Dr Gail Bradbrook with trial without jury

On 1 November 2023, Dr Gail Bradbrook, a co-founder of Extinction Rebellion, was found guilty of criminal damage after the Judge at Isleworth Crown Court:

  • Banned her from explaining why she did what she did
  • Threatened to move to trial without a jury
  • Directed the jury that she had no defence
  • Prohibited her from telling the jury they have an absolute right to acquit
XR founder convicted after four-year legal saga BBC, 2 November 23 Extinction Rebellion co-founder guilty of damaging government building The Sunday Times, 1 November 23 XR co-founder found guilty of criminal damage says she was ‘silenced’ Sky, 1 November 23 Extinction Rebellion co-founder guilty of breaking window at HS2 protest Guardian, 1 November 23 Dr Bradbrook summarises effect of rulings Byline Times, 1 November 23 Court ruling (see para. 8.17) (14 July 23) Court ruling (see paras. 12.7 ff) (10 October 23)

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Interviews

Dr Clive Dolphin from Defend our Juries and professor Richard Vogler on ‘Law in Action’ with Joshua Rozenberg.
Dr Juliette Brown and Natasha Devon discuss the Defend our Juries campaign on LBC