Juries are acquitting climate protesters based on collective conscience, and the Government is trying to find every legislative loophole to stop this. How should the law deal with illegal acts grounded in morality?
In April 2021, six climate protesters from Extinction Rebellion were ruled not guilty of causing criminal damage to Shell’s London headquarters, despite the judge directing jurors that they had no defence in law.
A further nine climate protesters were cleared of causing criminal damage in October 2023 at HSBC’s headquarters in London. In both of these instances, the defendants were acquitted despite having no clear legal defence. There have been numerous similar cases passing through the courts over the last four years.
This raises the vital question, should it be acceptable to break the law for a greater cause?
What does the law state?
By law, only a ‘lawful excuse’ provides a defence to criminal damage. Such an excuse is granted when the person who owns the property ‘would have so consented to it if they had known of the damage and its circumstances.’ So for instance, if you saw a child trapped in a burning house and broke the window to save them, the ‘lawful excuse’ defence would apply.
In some of these cases climate protesters have successfully argued that the ‘lawful excuse’ defence applied, as they genuinely believed the organisation affected by the damage would have consented to it, if they had a greater understanding of the climate crisis. However, it is clear that the Government’s representatives are intent on pushing back in attempts to manipulate the operation of the law to fit their own agenda.
In the case where climate protesters spray-painted buildings of organisations, including HSBC, the attorney general took one of the defendant’s cases to the court of appeal to argue that the defence of ‘lawful excuse’ should no longer be available specifically to climate activists. The court of appeal has since removed this defence for climate activists.
Tom Little KC, who represented the attorney general in this case wrote that “There is no direct nexus between the destruction or damage and the matters on which the defence rely as ‘circumstances’”.
The law states by example, that to cause criminal damage to save a child from a burning building does constitute the ‘circumstances’ to rely on as a defence. Yet, to cause criminal damage to hold drivers of the climate crisis accountable in light of potentially catastrophic consequences, does not constitute the ‘circumstances’ in which this defence applies.
Are we not all technically children trapped on a burning planet?
Therefore, to strip climate protesters, who are sounding the alarm to alert us that our house is up in flames, of the right to a defence is contradictory and foolish.
Last year, three Insulate Britain activists served jail time for contempt of court for breaching rulings made by a judge that they were not to mention the climate crisis, fuel poverty or the history of the peaceful civil rights movement to juries. The judge argued that the defendant’s motivations for their actions constituted no relevance to the case.
Not only does this strip these defendant’s right to freedom of expression, it raises the question of how are these protesters expected to receive a fair trial, if courts are manhandling these trials to manufacture a desired outcome from juries and not allowing defendants to explain the reasoning behind their actions.
Repression and regression over recognition
The jury is a vital aspect of the English legal system, acting as a checkpoint for state abuse, which is imperative in a democratic society. The ability for a jury to acquit a defendant if a conviction would be morally unjust or based on conscience, is a tradition that dates back to the Magna Carta.
So why is it that the Government is making attempts to weaken jury decision making?
“Jury trial brings the moral intuition of members of the public into the justice system. As members of a jury are chosen randomly, jury trial provides a good example of authentic, deliberative democracy in action. That’s even more important in the context of trials where the defendants are challenging those in power, for example by exposing the role of the state and various corporations in accelerating climate breakdown,” Tim Crosland, director for the Defend Our Juries campaign, told The Climate.
“The pattern of recent jury acquittals in such cases is deeply embarrassing to the state, and explain the recent moves to undermine jury trial in this context, for example by removing available defences, banning defendants from explaining their motivations in court, and even sending people to prison just for using the words ‘climate change’ in court”
The Government’s refusal to accept accountability for their lack of effective action regarding climate change is driving the asymmetrical attempts to control democratic processes and restrict the rights and freedoms of their people for their own benefit.
The trend of moral acquitals of climate protesters is clear evidence that the public is taking the climate crisis more seriously than the Government. Whilst there is a balance to be struck in maintaining the importance of the rule of law, restricting defences of these climate protesters and the abilities of a jury is not the answer.