Courts of Conscience & the Climate Emergency

Tom Hardy explores the role of the judiciary in combatting the climate emergency as activists are prohibited from mentioning the issue in their defence in court

Over the past few years, as members of Extinction Rebellion, Insulate Britain and Jus Stop Oil have willingly submitted themselves to trial, a remarkable thing has happened.

For all the tabloid fury at the ‘prevention of people going about their daily lives’, the tanker seems to be turning.

Recent polling suggests that 87% of the population regard climate action as a priority and, slowly but surely, it has begun to wake a sleeping giant. And as one of three pillars of government alongside the legislature and the executive, the judiciary could be seen as a significant driver of eventual system change.

When Professor Colin Davis of Bristol University and Dr John Andrews were acquitted for public order offences following XR’s 2019 April Rebellion by District Judge David Noble, he reportedly thanked them for their “courage” and “integrity” and told them “you have to succeed”. He reportedly went on to intimate that he and other judges may be prevented from future trials “before our sympathies start to overwhelm us”.

Last April, after the group blocked traffic on the M25, Insulate Britain protestors were admired for their commitment. In a trial summing up, District Judge Stephen Leake said: “They have inspired me and personally I intend to do what I can to reduce my own impact on the planet, so to that extent your voices are certainly heard.”

In November, Judge Robinson found seven Doctors for XR not guilty of a Lambeth Bridge blockade. On their acquittal, he said “I was impressed by the integrity and rationality of their beliefs” and conceded that “their evidence was highly moving”.

In my own case, the judge said I had made “a compelling case” and one which would undoubtedly lead to dialogue among fellow magistrates as to the fitness of the law in cases such as ours.

The 2021 Ziegler ruling by the UK Supreme Court – that courts should balance the disruption caused with the validity of the intent – has further shifted the Overton Window. An example of this is apparent in the summing up in the trial of the Just Stop Oil defendants who had blocked an Esso fuel terminal in Birmingham.

District judge Graham Wilkinson, following what amounted to an apology that his hands were tied with regards to a conviction, said:

Even unsympathetic judges will be aware that juries have seized upon their right to ignore the direction of a judge if they believe common law falls short of the needs of the times.

When a jury unanimously acquitted Reverend Sue Parfitt, Father Martin Newell and former university lecturer Philip Kingston following their protest at Shadwell Station in 2019, their lawyer said: “There is mounting evidence from the courts – and in particular from juries – that the public is taking the climate crisis and the increasingly urgent need to focus on it far more seriously than government and business. This verdict is part of this escalating pattern.”

More recently, Dave Pearson – who witnessed the acquittal of four Insulate Britain supporters vindicated after the jury returned an unanimous not guilty verdict –observed: “What’s really encouraging is that the jury found them not guilty despite all the efforts of the judge to force a different verdict. He barred the defendants from referring to the climate crisis, insulation or fuel poverty during their defence. And he told the jury that the defendants have ‘no defence in law against the charge’ and directed the jury to find them guilty.

“The jury realised that there are more important issues at stake, ignored the judge and did the right thing by finding them not guilty. It’s another great example of the people standing up to the system and saying ‘we’re going to defy the justice system and do what is just’. And that’s why our jury system is so important. It’s a check on the otherwise unfettered power of the establishment.”

The Government is doing its best to roll-back this tide with the increasing use of injunctions – the breaking of which results in jury-less trials, much like the discredited Diplock Courts of Northern Ireland. Most recently, the prohibition of mentioning the climate and ecological emergency as the motivating factor in acts of ‘public nuisance’ has, in effect, put defendants in the position of swearing to tell “the whole truth” yet not being allowed to: a catch-22.

Writing in the National Law Journal, US Judge Evelyn Lundberg Stratton has said that “judges have the ability to lead and effect significant change outside of the traditional role on the bench” and “using these unique abilities will enable any judge to have a wider impact on the community”.

“Taking a small step is all that is needed, since even a small act can lead to something much greater,” she observed. “I am issuing a call to action to all ­judges to get involved.”

Justice Syed Mansoor Ali Shah of the Supreme Court of Pakistan has voiced a similar sentiment, saying “as far as climate justice is concerned… the judiciary has played a very effective role in Pakistan in moving the agenda of climate change”.

In Pakistan, members of the judiciary have instigated a commission of expert stakeholders – very much in the mould of a citizen’s assembly – tasked with advising the Government on actions required to combat climate change. It has played an essential role in raising awareness about the issue in the country.

Professor Luc Lavrysen of Ghent University – and President of the Belgian Constitutional Court – has said that he has “no doubt” that the “human rights approach adopted by the Dutch Supreme Court [in the landmark case of Urgenda Foundation versus Netherlands] will influence judges in other parts of the world”.

Justice Brian Preston, Chief Judge of the Land and Environment Court of New South Wales, has called for a “climate consciousness” or “an awareness of the climate crisis, its causes and consequences” that can “inform a court’s choices in finding, interpreting, and applying the law” with the hope that such a mindset would influence judges on the global stage.

Meanwhile, Justice Nambitha Dambuza, of the South African Supreme Court of Appeal, has said courts should draw on precedents from elsewhere to inform their thinking: “Where our jurisprudence is lacking in climate change jurisprudence, we will readily draw on other jurisdictions.”

Lord Robert Carnwath, a former British Supreme Court judge, predicts in a report for the Grantham Institute that cases of climate change litigation will inevitably rise, particularly where human rights and constitutional violations are cited in arguments.

He proposes that “within this context, judges and the rule of law have an important role to play. Recent scientific evidence, particularly attribution science, makes it clear that urgent system change is needed to address climate change.

“The law can provide a bridge between the uncertain position in which communities and societies currently find themselves in the face of manifest climate change impacts, and the clarity and direction that will be required in the very near future. Judges can and must offer at least some of the building blocks for the law’s response to climate change.”

In systems with short electoral cycles, it arguably falls to the judiciary around the world to look at the bigger picture: the long-term and international responsibilities in a crisis which does not respect borders.

“Judges should acknowledge that, because climate change is a complex and global phenomenon, it does not respect existing legal boundaries,” according to Lord Carnwath. “As such, judges may be required to draw on a wide collection of legal principles to adjudicate climate litigation, taking inspiration from other areas of law and applying old law in new ways.”

Following the Ziegler decision, Raj Chada warned that “whilst the Supreme Court has recognised the importance of free speech, the Government seeks to undermine it by their disgraceful Police and Crime Sentencing Bill. That legislation is an attack on our civil rights and democratic values”.

With the Police, Crime, Sentencing and Courts Act now in place, the move to leave the jurisdiction of the European Court of Human Rights and the inevitable passing of the Public Order Bill, it must fall to the judiciary to counter these democracy-undermining moves.

Let’s hope they too have the courage to put themselves willingly in the front-line.

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