On 21 February at the Royal Courts of Justice, London, on the application of the Attorney General, the Court of Appeal will consider whether to remove the last remaining legal defence for many activists: the belief that the owners of property would have consented to the damage caused if they fully understood the circumstances. It is commonly known as “belief in consent“.
Until recently, it was almost unheard of for the government to interfere with legally available defences in this way.
However, following the acquittal of the Colston Four – who toppled the statue of slave trader Edward Colston into Bristol harbour – Attorney General Victoria Prentis’ predecessor Suella Braverman made a similar intervention to prevent such a verdict being repeated in the future, which the Court of Appeal supported.
Pattern of acquittals based on belief in consent
Despite this, and other decisions of the higher courts, removing otherwise available defences (such as ‘necessity’), juries have continued to find ways to acquit people whose fundamental argument is that they are taking proportionate and necessary action to prevent a far greater harm.
In just the last few months of 2023, there were a number of high profile acquittals of activists based on belief in consent, including:
- A group who sprayed the Treasury with fake blood, to draw attention to the scale of UK Export Finance’s investments in fossil fuels around the world.
- Nine women who broke windows at HSBC to shine a spotlight on HSBC’s £80bn financing of fossil fuel projects since the Paris Agreement.
- Members of Palestine Action, who defaced the property of Elbit, the British-based arms company, profiteering from the bloodshed in Gaza.
Political interference in jury trials
On 20 December 2023, with public attention elsewhere, Prentice asked the Court of Appeal to consider removing this defence, citing high numbers of recent acquittals in criminal damage cases.
Just a few months previously, the Guardian reported:
Israeli embassy officials in London attempted to get the attorney general’s office to intervene in UK court cases relating to the prosecution of protesters, documents seen by the Guardian suggest.
Defendants prevented from explaining their actions in court
As a result, more and more people taking nonviolent direct action as a matter of conscience could find themselves in court with no legal defence and effectively banned from explaining their motivations to the jury.
Extinction Rebellion co-founder Dr Gail Bradbrook has already been denied the use of this defence and was therefore left without any legal defence in her trial last November for breaking a window at the Department for Transport. Others have been imprisoned just for using the words ‘climate change’ and ‘fuel poverty’ in court.
This situation, in which peaceful activists are left silenced and defenceless in court, has been described by UN Special Rapporteur on Environmental Defenders, Michel Forst as “extremely concerning”.
Last month, in a report commissioned and released by the UN, he noted that:
It is very difficult to understand what could justify denying the jury the opportunity to hear the reason for the defendant’s action, and how a jury could reach a properly informed decision without hearing it, in particular at the time of environmental defenders’ peaceful but ever more urgent calls for the government to take pressing action for the climate.
When is a ruling expected?
Time and time again, when people have been to explain their motivations to a jury of their peers, and to communicate the evidence that direct action is effective in bringing about political change, juries find them not-guilty.
The Attorney General is attempting to end the pattern, even if it means compromise to fundamental legal principles, such as the right of a defendant to a serious criminal charge to explain their action to a jury of their peers.
The hearing of the Attorney General’s application will be completed on 21 February. Although the hearing may give a good indication of the Court’s position, it is common for the Court of Appeal to reserve judgement (ie to issue their ruling at a later date).
Crowds to gather for three momentous hearings
On the same day, two other momentous cases will also be heard at the Royal Courts of Justice.
The final appeal of Julian Assange against extradition to the US; and the legal challenge to the Government’s ‘net zero strategy’ brought by the Good Law Project and Friends of the Earth.
Crowds will gather at 9am on 21 February outside the court to hear from a number of expert witnesses concerning the implications of the Attorney General’s application, including a number of those who have been acquitted on the basis of the defence of consent.
Featured image via Defend Our Juries
