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The numbers are dizzying. A recent report by a US law group revealed that leading British legal firms have facilitated an astonishing £1.5 trillion worth of transactions involving fossil fuel companies since 2018.
A significant chunk of that money finds its way into our legal system via the coffers of top law firms that, in turn, advise leading counsels destined to become the next generation of top judges. Polluters have huge financial resources – and they flood the legal system from outside and from within.
Yet in the face of these Goliaths, there’s a David in the British judicial system: the jury trial.
While Rishi Sunak’s Government seems to be on a mission to erode the right to protest, the jury trial system has, until now, stood firm. It’s the unpredictable factor, the Achilles heel in attempts to hamper resistance to fossil fuel behemoths.
If 80% of a jury backs acquittal, a case is dropped. And it has happened in a slew of recent cases concerning activists fighting climate change and standing up to some of the biggest polluters and human rights violators.
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In April 2021, the “Shell 7” faced trial for criminal damage. Two years before, they’d protested at Shell’s London HQ, pouring fake oil onto the steps and walls of the oil major’s building in Waterloo. They broke windows, painted messages like “Shell Kills” – then waited for police to come and arrest them.
None of them disputed the facts: they had done what was alleged. The judge was clear they should go down. But they explained to their peers – 12 jurors – why they had done what they did in the face of the climate meltdown and Shell’s continued role in it. The judge was clear that they should be convicted.
But the jury listened, and decided – as is their centuries-old right – to decide based on their conscience. Six of the seven were acquitted.
It happened again in January 22 as a jury acquitted the Colston 4, who’d toppled a statue of the slave trader Edward Colston.
In November that year, a jury acquitted members of Palestine Action for targeting weapons manufacturer Elbit, a firm which provides the Israeli army with drones and other arms.
This year things stepped up a notch. In January a jury acquitted Insulate Britain campaigners who had blocked the M4, and in February a jury acquitted “Burning Pink” campaigners for “unsolicited redecoration” – covering in paint – the Conservative and Labour HQs.
And just in June, a jury acquitted the Brook House 3, who were blocking deportations to Jamaica – after they persuaded a jury there was a duty to resist what they described as the Government’s racist policies.
Juries are selected at random from the public. It’s a system rooted deep in British tradition, tracing its lineage back to the Magna Carta. But it now faces several methods of attack from the justice system and from Government.
Tim Crosland, the director of environmental campaign group Plan B Earth, tells me: “Think about what we imagined the British public thought [the anti-deportation protests], according to the Daily Mail. They were acquitted. And acquittal means 80% – at least 10 out of the 12 Jurors – let them free. They weren’t denying they’re locked on. They weren’t denying their cause of disruption.”
Ousted justice secretary Dominic Raab’s recent consultation on a new “Bill of Rights”, intending to scrap the Human Rights Act, brought surprising results. Four fifths of responses concerned protecting jury trials – fair treatment by your peers – as a cornerstone of any new Bill of Rights. It’s an emblem of British values that crosses the party divide. In theory.
When juries are presented with comprehensive evidence, unfiltered and unspun, their decisions often diverge from the narrative peddled by outlets like the Daily Mail. Telegraph readers, Guardianistas alike, when presented with raw truths in a courtroom, often lean towards acquittal when faced with campaigns of conscience.
The response of the Government and the courts has been an attempt to water down this tendency.
Firstly, those facing trial for protests have increasingly been banned from explaining their motivations and beliefs to the jury.
Relevant evidence and witnesses – including expert testimony as to the Government’s failure to act on the scientific advice – has been disallowed or ignored.
Juries have been told that activists’ motives are irrelevant and must be ignored. And in March, two environmental activists were even jailed for seven weeks – after ignoring a judge’s ban on telling a jury that the climate crisis was their motivation for taking part in a roadblock protest in October 2021. They had used the terms “climate change” and “fuel poverty” in court, against the judge’s order. Down they went.
Judges have even threatened to move to judge-only trials under Criminal Justice Act 2003, s.46 – a provision designed to address jury intimidation in the context of serious organised crime. Yes, Insulate Britain pensioners are being treated like the Mafia.
Much of the publicity around this concerns decisions taken at the inner London Crown Court. However it’s happening across the country, too, with much less attention.
“Judges are susceptible, both to that formal pressure of intervention for the Attorney General and the higher courts. But they’re also very sensitive to being on the front page of the Daily Mail as ‘enemies of the people’”, Crosland suggests.
There may be behind-the-scenes lobbying too. On Sunday, the Observer reported evidence that the Israeli authorities had been corresponding with the Attorney General’s office over the pending trials of Palestine Action activists. That correspondence has been redacted on the basis that it would prejudice British relationships with Israel.
The trial of Extinction Rebellion co-founder Gail Bradbrook in October will be a key moment – with the threat of contempt of court hanging heavy over participants and supporters. And trials of Animal Rising activists later this year for disrupting horse-racing events are also likely to be a litmus test on the issue.
Take another case. A 68-year-old retired social worker, Trudi Warner, had been joining members of the public, including an Olympic gold medalist, a priest, health workers and a retired police officer, to hold up signs setting out the principle of “jury nullification” – the right to acquit based on jurors’ conscience, outside climate protest trials.
The justice system has come down on them like a ton of bricks. Some of those protesters have been arrested and subject to house searches, climate group Plan B says. It has gone right to the top. All have been referred to the Attorney General for contempt of court. The Attorney General has now indicated an intention to prosecute Warner.
With a new Lord Chief Justice, Lady Justice Dame Sue Carr, the situation may worsen. Her Court of Appeal upheld three-year prison sentences for activists displaying “Just Stop Oil” banners — a sentence longer than many of those meted out for grave crimes like sexual assault.
It is a dissonant world where prisons bulge at the seams, our government aggressively champions more oil and gas licences — defying and denying hard science — and the judicial system locks up those who have the audacity to remind jurors of age-old rights.
But there is hope. The coming months will see some of these contempt cases come to a head. National days of action are planned, where activists will rally at local Crown Courts displaying their messages, Tim Crosland tells me.
This is not just a legal battle. It’s a fight for a right that dates back centuries. Who will be there to defend it?
Update 13th September: The caption of this piece was corrected to note Trudi Warner’s sign informed jurors of their right to acquit.
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