Last week, Julian Assange’s fate was being considered at an extradition hearing the Royal Courts of Justice – watch our panel discussions. At the same time in another part of the building, the UK Attorney General was asking the court to clarify (and potentially rule out) a lawful defence which has seen juries acquit climate and peace activists accused of criminal damage in the course of direct action protests.

A previous ruling, following Suella Braverman’s intervention in the Colston Four case, has already stopped activists from referring to Human Rights arguments in court. As a result, in many recent cases, the only available lawful defence is one of ‘Belief In Consent’.

In a nutshell, for the ‘Belief In Consent’ defence to lead to an acquittal, a defendant has to persuade a jury that it was their honestly held belief at the time of the offence that, had the owners of a building (or those able to give permission) had known all the circumstances surrounding the action, they would have given consent for it to take place.

An example often given is that if someone sees a child trapped in an apparently burning building, and smashes down a door to release them, the damage caused would have been lawful (even if it turned out there was no fire), because they honestly believed whoever had charge of the building would have consented knowing all the circumstances.

Thus, if an arms-trade protester honestly believes that Israel is carrying out a genocide in Gaza aided by weapons manufactured at a factory in the UK, then the owner or landlord of the factory, once they knew all the circumstances of how the weapons were being made and used, would have given permission for an intervention – potentially anything from throwing blood-red paint to draw attention, to even occupation and dismantling manufacturing equipment.

To coincide with the ‘belief in consent’ hearing, a succession of individuals and campaign representatives made speeches outside the High Court in the morning, and then around 100 people held an unauthorised people’s assembly in the Great Hall throughout the day.

In many high-profile cases reported before by Real Media, juries have acquitted activists who have carried out what would otherwise have been considered substantial criminal damage. We will never know what is discussed behind the closed doors of a jury room, and so we can’t know whether those decisions were because of belief in consent, or whether jury members were exercising their right to acquit on conscience, but it is obvious that when they heard from defendants what the reasons and motivations were for actions taken, that acquittals seemed reasonable.

If the government succeeds in curtailing ‘belief in consent’, then in many cases, with no lawful defence available, a jury will not get to hear the motivations, explanations and circumstances around a protest action, and instead will find themselves instructed to find a person guilty if it is simply shown by the prosecution that the defendant was present and carried out whatever action they are accused of.

If this seems unfair (and surely it is), then a juror DOES have one remaining legal tool – the ‘right to acquit on the basis of conscience’, also known as jury nullification or jury equity. This right was established legally in the UK in the 17th century by Bushell’s case, and juries have acquitted defendants many times since then without having to explain their actions or facing any consequences.

But judges routinely fail to mention this right to juries, instead instructing them that they must only consider the facts before them, and if there is no legal defence available, then they MUST find the defendant guilty.

With greater and greater restrictions on what a defendant can even tell a jury, many, including campaign group Defend Our Juries, are concerned that an important democratic check – the power granted to a randomly selected jury of peers – is being snatched away by an increasingly authoritarian government extending its reach and banning anything but the most ineffectual forms of protest.

We’ve reported previously on previous silent protests outside UK courts – people standing or sitting with a small banner that simply states the law as enshrined in Bushell’s case. One such protester, Trudi Warner, is facing prosecution at the High Court in April. Rather than facing a jury trial for ‘perverting the course of justice’, Trudi will face a judge-only hearing for ‘contempt of court’. Meanwhile others who were arrested after pasting similar wording on street furniture near a court building, have since had their charges dropped and are suing the police.

So it seems far from clear whether such action is in fact criminal. On Thursday, those taking part outside Inner London Crown Court, where a climate-related trial is taking place, were warned by police that if they returned on Friday they would be arrested. Real Media filmed on Friday as seven people displayed the banner again, and it appears that police backed down (despite the fact the large Southwark Police Station is within sight of the protest).

Meanwhile inside the court, Judge Silas Reid told the jury to ignore any signs they’d seen, saying that the signs “misstate the law” and claiming that it is a “criminal offence for a juror to do anything from which it can be concluded that a decision will be made on anything other than the evidence in the case”. But some argue that this direction is itself a misstatement, and given the dropped charges and the idle police threats, it may come down to Trudi Warner’s hearing in April to decide whether Judge Reid himself may have been in a sense perverting the course of justice.

Watch this space.

This report was edited at 9.20 26 Feb 2024 to correct the legal sanctions being used against Trudi Warner in April.