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Surprise ‘People’s Assembly’ Comes to Court as Climate Protestors’ ‘Last Legal Defence’ May Be Removed 

The Government appears keen to limit climate protestors’ legal justifications for direct action

Photo: The Defend Our Juries action at the Royal Courts of Justice

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One of the last legal defences available to protestors accused of criminal damage in the UK is hanging in the balance following a hearing at the Court of Appeal.

A panel of three senior judges heard arguments in London yesterday about the kinds of defences that can be made in court and the extent to which judges or juries have the power to decide a case. 

The hearing was sparked by a December request from Attorney General Victoria Prentis for a review of whether climate protestors can make the argument of ‘consent’ in court.

While the hearing took place, members of campaign group Defend Our Juries held a surprise ‘people’s assembly’ inside the Royal Courts of Justice, to highlight what it argues was a “threat to British justice and democracy”. Spokesperson Tim Crosland dubbed the action a  “makeover of British justice”.

The gathering was prompted by the Attorney General’s application to reduce the defences available for those taking direct action over, for example, climate change or the war in Gaza. 

Around 100 members of the public gallery are understood to have taken part. Organisers claimed the demonstration was “entirely lawful and peaceful, and [would] cause no disruption to the ordinary running of the court”.

Prentis had asked the court’s criminal division to consider whether “claims that protestors honestly believed organisations affected by their stunts would have consented to the damage – if they had known more about the impact of climate change – can be a defence in court”. 

A mock-up of the Royal Courts protest on Wednesday (21 February)

She said the argument had been used by environmental campaign groups, resulting in acquittals for criminal damage. The previous month a jury cleared nine women of criminal damage for breaking the windows of HSBC’s headquarters in London. 

The judge allowed them to argue that they truly believed HSBC’s shareholders would have agreed to their actions if they had known the scale of the climate crisis and the bank’s contribution to it. 

While the request focuses on climate protest, similar arguments have recently been used by Palestine Action activists on trial for targeting Israel’s largest private weapons company.

Tom Little KC, representing the Attorney General, said the Government wanted clarity on the issue because the defence of belief in consent has only recently begun to be used and judges have responded inconsistently. 

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He argued that this provision in the UK’s Criminal Damage Act 1971 was being interpreted too broadly. He said it was not designed for protest cases but rather to, for example, protect someone who broke a car window to stop a dog overheating. 

Henry Blaxland KC, representing a protestor at the centre of the issue who cannot be named for legal reasons, argued that there were no restrictions on using this defence in criminal damage cases, and the key issue at stake was whether the defendant really believed it. Whether this is accepted, he told the court, is ultimately a matter for the jury: “That belief may be mistaken… it may be unreasonable. But that’s the issue that needs to be determined.”

At stake, Blaxland continued, was the much bigger constitutional question of the right to a fair trial: “It’s only in rare cases that a court is entitled to withdraw matters that would otherwise be a matter for the jury.”

The move by the Attorney General echoes a previous referral by her predecessor Suella Braverman at the Court of Appeal. This followed a jury acquitting four Black Lives Matter protestors of criminal damage, for toppling a statue of slave trader Edward Colston in Bristol and throwing it into Bristol Harbour.

Braverman’s request was made on the same day as a similarly-worded briefing was published by think tank Policy Exchange, which is part of international fossil fuel-funded Atlas Network

The court subsequently ruled that protestors accused of high-value criminal damage could not rely on the European Convention on Human Rights, making it much more difficult for activists in such cases to mount a legal defence.

That decision was part of a wider restriction on the kinds of defences that protestors can use in court in recent years.

Last year, Extinction Rebellion co-founder Gail Bradbrook was found guilty of criminal damage and given a 15-month suspended prison sentence after being forbidden from speaking about her motivations in front of a jury.

Prentis stressed that, whatever the Court of Appeal’s latest decision, it would not change previous acquittals such as those for the HSBC activists. But it would affect future cases. 

While the hearing was ongoing, trials of climate activists were happening across the UK.

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Climate Clampdown

In one ongoing case, five Extinction Rebellion members have been charged with criminal damage for breaking windows at JPMorgan Chase’s London offices in September 2021. The bank is one of the world’s biggest financers of fossil fuels, and its asset management arm recently quit an international investor group set up to encourage companies to lower their carbon footprint.

This trial is being held at the Inner London Crown Court in front of judge Silas Reid, who has forbidden defendants in similar cases from mentioning climate change or fuel poverty in their defence.

Last year, Reid sentenced one of the current defendants in the JPMorgan case, Amy Pritchard, alongside two others, to prison for breaching this ruling during a previous trial. Pritchard spent three-and-a-half weeks in jail.

Reid has also faced criticism for his response to activists concerned about his approach. He led 68-year-old Trudi Warner to be prosecuted with contempt of court after she held a sign outside his court spelling out the right of a jury to acquit a defendant based on their conscience, sparking an escalating series of protests across the UK under the banner Defend Our Juries.

Reid delayed the start of the JPMorgan activists’ defence in case the Court of Appeal releases its decision later this week.

Another trial began at Reading Crown Court of eight Insulate Britain activists charged with public nuisance for blocking junction 31 of the M25 motorway in September 2021.

And a third trial is being held at Basildon Crown Court of five Just Stop Oil activists charged with public nuisance and conspiracy to cause a public nuisance for occupying tunnels near an oil terminal in Grays, Essex, in August 2022. 

The UK’s approach to protest is now coming under international scrutiny.

In January, UN Special Rapporteur on Environmental Defenders and the Aarhus Convention, Michel Forst, expressed deep concern about the increasingly severe crackdown on peaceful protest, particularly some tough prison sentences. He said it was leading to increased threats, abuse, and state justification for severe measures against them, and having a “chilling effect” on free speech.

Additional reporting by Josiah Mortimer

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