Before the jury was sworn in at Southwark Crown Court 6, His Honour Judge Gledhill QC made it very clear how he saw the case progressing.
The two defendants, Extinction Rebellion co-founder Roger Hallam and Kings College London alumnus, Dave Durant, were charged under the Criminal Damage Act 1971, after using chalk-spray in direct action protests intended to push the university towards divesting its substantial funds away from fossil fuels. Both had been involved in ‘re-decorating’ the Grade I listed foyer of King’s Building on the Strand in London on 1st February 2017, and Hallam additionally was charged with chalk-spraying the pebble-dash columns at the front of the building in an earlier action on 19th January.
The judge said that ‘lawful excuse’ had a very limited scope in law, and that the defendants’ views on fossil fuels were irrelevant to any defence. He warned that he would not allow the issue of burning fossil fuels into the proceedings.
Despite this uncompromising initial announcement, he seemed equally unimpressed that the Crown Prosecution Service (CPS) had brought the case to court more than two years after the events, after “unnecessary delays”. In an exchange between the judge and the prosecution, the defendants (who represented themselves without legal counsel) were told about a procedure called a ‘Goodyear indication’. This is where they can ask what sentence the judge would impose were they to plead guilty. As a result, they were informed that a guilty plea before trial would result in a discharge. John Hulme, prosecuting for the CPS, warned them that a guilty verdict at the end of a jury trial could expose them to tens of thousands of pounds of costs.
After a short discussion, they decided to carry on with their ‘not guilty’ pleas and a jury was then sworn in.
WITNESSES FOR THE PROSECUTION
The first prosecution witness, Adam Loxley, was security manager at the time, and he told how Roger Hallam had sprayed the columns outside the college with divestment slogans and had carried on even after being asked to stop by security guards.
The Real Media film from 19th Jan was shown to the court.
The college ‘Operations Duty Manager’ Vincent Gazo was next on the stand, giving evidence about the action on 1st February when police were called after several students daubed the walls of the 18th-century foyer with chalk-spray slogans. Again, the Real Media footage was introduced as an exhibit in the case.
The students had come prepared with buckets and sponges to clean off the marks, but were prevented from doing so. Mr Durant cross-examined the manager about this, and also about the £7295 + VAT bill that ‘specialist cleaners’ had presented to the university for the job. Mr Gazo said that he was concerned the colour would penetrate the stone further with the application of water, and that because of the building’s listing, English Heritage had to be consulted in relation to the cleaning.
Two arresting officers took the stand to confirm reasons for and circumstances surrounding the arrests. There was no cross-examination or challenge to their evidence.
Once the jury were sent out to lunch, Mr Hallam asked whether he could have some documents photocopied to show the jury as part of his defence, but the judge took a look through them and refused, pronouncing them irrelevant. Mr Durant mentioned a Greenpeace case when climate change evidence had been brought into a trial – he referred to a Guardian article about it. The judge said he wasn’t going to be swayed by newspaper articles either.
After lunch, the police caseworker Joanna McDowell gave evidence without challenge, and then Mr Durant took the stand.
THE DEFENCE WITNESSES – DAVID DURANT
After a brief biography summing up his general good character and relevant education, he told how he had joined the campaign just days before the spraying action, and how he was moved to act by his awareness of issues around carbon emissions and climate change, the fact that the college had £40 million of “student’s money” invested in fossil fuels, and the knowledge that a survey showed 96% support for divestment at the university.
He argued that he did not ‘intend to cause damage’ and was not ‘reckless as to whether any damage would occur’ as laid out in the law.
He referred to text from a Facebook group planning the action, emphasising that the protest was not intended to cause damage, and that they planned to take full responsibility and clean up after themselves. He quoted from product information and Amazon reviews that the paint was water-soluble and easy to clean off.
He’d also tried the paint on some porous stone before the action, and then after the action and arrest, he’d got hold of some Portland Stone samples (the same as the ‘damaged’ foyer), and sprayed and successfully cleaned them himself. He showed the film of this experiment in evidence. To make it fair, he filmed continuously, with a few minutes wait between spraying and then beginning to wash.
In a lighter moment, the judge asked for the film to be fast-forwarded to spare the jury from having to watch paint dry.
Within the act, one of the grounds for ‘lawful excuse’ is if the accused believes that the owner consented or ‘would have consented given all the circumstances’, and Mr Durant went on to speak about this. He spoke about the overwhelming support for divestment among students, and the subsequent conversations and correspondence with the Vice-President, Chris Mottershead. Durant referred to a letter to the police case-worker from Mr Mottershead which confirmed he thought the students were driven by real concern over fossil-fuels, that they were peaceful and reasonable, and that he didn’t believe there was any intent to cause permanent damage.
Mr Durant also pointed out that the university had dropped all internal sanctions against any students and that within weeks an agreement was signed which not only guaranteed total fossil-fuel divestment by 2022, but also a pledge to be a carbon-neutral institution by 2025, AND to increase funding for climate change research. He said that all these factors suggested the university “would have consented” taking all circumstances into account.
In further exchanges between Mr Durant and the judge, the former pointed out he’d been prevented from cleaning the stone wall, thus resulting in damage. The damage was effectively caused by them being stopped from cleaning.
The judge said there WAS damage albeit temporary, and that he would DIRECT THE JURY that the spraying amounted to damage. Mr Durant tried to refer to precedents and Judge Gledhill said the defendant would not be allowed to argue the law in front of a jury. Durant then talked about the damage that fossil fuels do, and the judge immediately stopped him, suggesting that going down that path, he could blow up the Shell HQ but no-one would suggest that was legal. Durant pointed out the damage was proportionate and reasonable unlike bombing somewhere, and the judge reminded him the legal exemption necessitated ‘immediate danger’, to which Durant pointed out the whole college building could be under flood water within 30 years if we don’t do something right now. In his final point, Durant referred to a 17th Century case where the jury cleared two Quakers despite a judge’s direction – the first case of what is called a “perverse verdict”. Unimpressed, the judge offered to give the jury a history lesson later on in his summary.
John Hulme then cross-examined Durant on behalf of the CPS. He started by questioning how many people were intending to clean up, commenting that students aren’t renowned for cleaning up. Durant responded that environmental activists ARE, citing the amazing clean-up of Marble Arch after the recent Extinction Rebellion occupation there.
Hulme questioned the issue of whether the university “would have consented” – much of this argument centred around what was meant by ‘the university’. The security guards appeared not to consent, but 96% of students might have, and after the fact, the divestment agreement was signed by appreciative members of senior staff. There was also much argument about the nature of ‘immediate threat’, with Hulme saying that spraying a wall won’t stop BP, and Durant suggesting that although he couldn’t prove causality, there seemed to be a link between oil companies’ recent sudden moves towards purchasing a renewables portfolio, and the rise of divestment campaigns. Durant also reminded the court how action DOES show immediate results, referring again to the recent Extinction Rebellion occupations.
DEFENCE WITNESS – ROGER HALLAM
Roger Hallam’s evidence began with the judge taking him through a potted biog. We learnt that he had been a very successful businessman supplying organic fruit and veg until successive extreme weather events had wiped out his business, putting 25 people out of work and putting him in debt. Many other Welsh small farmers had also been ruined, and almost all were now growing on a smaller scale and in polytunnels, directly because of the changing climate. Realising that green NGOs and political parties had been unsuccessful despite decades of knowledge and campaigning over climate change and ecological devastation, he began his PhD research at Kings College London to learn how to campaign effectively. He told that his study of Gandhian techniques, Martin Luther King, and many other historic movements included practical trials with various groups and that he’d turned his attention to the divestment campaign at the college.
He learnt about chalk sprays and how they did not cause permanent damage, and began his rapidly escalating campaign by chalking dots on university walls. The campaign slogan of ‘Join The Dots’ relating to fossil fuels, divestment, ecological destruction, and climate change.
There was some exchange with the judge over the definition of ‘criminal damage’ relating to intent and recklessness, but Hallam spoke about how a victim ‘interprets’ an action, and the meat of the discussion moved onto ‘consent’.
Mr Hallam wanted to give evidence of why he believed the university “would have consented” – a lawful excuse of his action in law. He spoke of how the university considered disciplinary measures after his first action but then decided not, how he spoke amicably with senior university figures at the second action, how further meetings with Vice-President Chris Mottershead acknowledged the existential crisis at stake and then led to the university’s undertakings re divestment, and he described that the university has gone much further than the original demands and is now basing a PR campaign on their own new climate credentials.
He also described how the action was part of a modern practical update on Gandhian and MLK techniques, including gifts (salad packs from his organic business for security staff), and peaceful engagement. It was written up as part of his PhD, given authorisation in terms of ethical considerations, and has produced beneficial results for the college. None of the parties involved saw it as criminal and it was hard to understand why the CPS was bringing it to court so much later.
With regard to lawful excuse, Hallam tried to cover the area of necessity, which the judge had already directed was irrelevant. Hallam told the jury he had four pages of precedents relating to other cases where necessity was allowed as an excuse despite non-immediate consequences, but as he started to describe the immediacy of the climate crisis, the judge refused to allow him to go any further, saying he would not allow the trial to become a political platform.
During cross-examination, the prosecution noted that security staff had told Hallam he was committing criminal damage during the first action, and that there was no sign of any consent from the university between then and the second action.
The summing-up speeches began after lunch on the second day of trial and Mr Durant began by telling the jury he’d asked for a dismissal on public interest grounds and reminded them they were free to criticise anything in the judge’s direction and to bring a verdict based solely on a moral basis. He said that the prosecution had not been able to prove that he’d had intent to damage or had been reckless in his actions. He said that as a result of the action, the university is now on the right side of history, and “would have consented” had they known that outcome.
In terms of the argument over any immediacy of threat, he referred to the recent government motion declaring a climate emergency, which would suggest an immediacy, and asked whether the prosecution had proved without doubt that there was no such excuse available in law.
Both he, and Hallam, up next, reminded the jury they weren’t legal experts but were appealing to their common sense. Hallam tried to promote the jury’s right to come up with what is called a ‘perverse verdict’ and began referring to the 1996 acquittal of four women who had committed £1.5 million of damage to the cockpit of a British Aerospace Hawk plane. The judge asked him not to refer to any other cases. Hallam said that damage, and whether it is criminal or not, has no precise legal definition, and that the jury has to look at the context and circumstances in each case.
He said there was no intent to damage, as the chalk was designed to wash off, and that similar actions in other cases previously had led to acquittal – again the judge stopped him from referring to these.
Hallam said the action wasn’t one to promote a political agenda – there is massive consensus on climate change and the university just needed a small push to do the right thing – it had been extremely proportionate and measured. The university had called the police on that day over what effectively was a misunderstanding, and had since not only dropped any notion of sanctions but had welcomed the resulting agreements over divestment, research, and carbon neutrality.
Turning to the lawful excuse ‘to protect other property belonging to himself or another’, he began by speaking about the destruction of his business and the loss of jobs, then onto the mass criminality of fossil fuel companies who knew the damage they were doing decades ago. He also quoted some of the work of Professor Jem Bendell, who suggests that Europe may face widescale food starvation within a few years. Mr Hallam painted a picture of what this truly means – food starvation leads to disease, war, slaughter and rape. In Europe within years, ordinary people could be fearing whether they will be killed before they die of hunger. He asked the jury to compare the actions they took (and the successful outcome) with the consequences of not taking action.
It was then up to the judge to sum up. He began with a clear dismissal of the ‘act of necessity’ defence, saying that in 43-years as a barrister and judge it had not arisen, and he described how it might be used in a life or death hostage situation, but that this case was just about “a peaceful protest that went too far”.
He did concede that now in 2019, the theory of climate change was not controversial, but he said that whether problems were imminent or long-term was “still debatable”. He said that the two men accused had a right to express their opinions and that that right had been earnt through peaceful protest in the past, referring to the Tolpuddle martyrs, the Chartists (who he claimed had been peaceful), and the Sufragists (which he differentiated from the Suffragettes, who took more direct action, sometimes straying into violence and law-breaking). He said the human rights of the accused weren’t remotely being stifled, and the only issue was whether they had crossed a line.
The judge instructed the jury that they were there only to decide the facts from the evidence they heard, and that he was there to give directions as to the law – a trial by judge AND jury. He then moved on to clear directions that damage could be something temporary – he gave an example of someone denting a policeman’s helmet, saying that even if the dent could be pushed back, the blow would be criminal damage. His suggestion was that a chalk spray was similar, and directed the jury that in law, there was no defence that the accused ‘believed’ it wasn’t criminal damage – ignorance is no excuse.
Next, he asked the jury to consider whether the men had intended or been reckless to cause the damage – his direction seemed less final on this, but he did refer to the evidence of the security officers who had asked the men to stop spraying ‘because they were causing damage’.
On the third element of lawful excuse, he again directed the jury that ‘act of necessity’ did not apply, and that despite Mr Hallam’s attempts to claim the urgency of climate and ecological collapse was relevant, he ruled as a matter of law that the jury should not accept this. So the only lawful excuse available, he ruled, was whether the University consented or would have consented, had they known all the circumstances. Going through Mr Mottershead’s letter again, he directed that there was nothing in it that amounted to post- consent, and also warned the jury that they had not had a chance to hear evidence from Mr Mottershead himself and so had no knowledge of the circumstances surrounding the writing of the letter, and must treat its contents with caution.
For much of the second afternoon in court, Judge Gledhill read out his notes of what had taken place in the trial so far. His gentle voice lulled at least two of the jury members to sleep at times, and many of the others seemed less than riveted.
A LEGAL CHALLENGE – not in front of the jury
Overnight, Mr Hallam and Mr Durant had spoken to a couple of friendly barristers and received further advice which they asked the Judge to listen to. This was before the jury was admitted to court on the third morning of trial. Mr Durant asked whether their lawyer friend could address the judge directly. Judge Gledhill asked the lawyer to make himself known, took a look at the smart-casually dressed man, and then said: “I won’t hear from you dressed like that in court”.
Mr Hallam then read from notes suggesting that there were grounds that the judge had misdirected the jury. Gledhill shut him down, saying that he would not change anything, and it was up to them if they wanted to launch an appeal after the trial.
Hallam continued that the judge had misrepresented the science in saying there was consensus on climate change but not on the urgency. The judge interrupted again, saying that he had been very favourable about the issue, given it was not part of lawful evidence. Hallam quoted a declaration signed by fifteen thousand scientists showing there was no dispute or reasonable argument against the fact that the situation is very urgent. The judge said he was not prepared to listen and that the jury would not be allowed to hear this.
Mr Durrant then took over, quoting a House of Lords case from 1990 concerning the sterilisation of a woman who was unable to give consent – the Lords ruled that the principle of necessity COULD extend to assisting another person without their consent, and Mr Durant’s legal advice suggested this could relate to the climate emergency and should be considered in directions to the jury. In a second case, a man had driven while disqualified because his wife had threatened suicide – a Court of Appeal ruled that that the accused had reasonably been impelled to act because he had good cause to believe that otherwise death or serious injury would result. Mr Durant suggested a comparison to the facts of the climate emergency could be drawn. Finally, he referred to a 2001 case about conjoined twins where one of them would lose their life in a separation procedure. In that case, Sir James Stephen ruled three requirements for the doctrine of necessity:
- the act is needed to avoid inevitable and irreparable evil
- no more should be done than is reasonably necessary for the purpose to be achieved
- the evil inflicted must not be disproportionate to the evil avoided
Mr Durant proposed that using a chalk spray to help prevent irreparable harm to the planet and its billions of inhabitants would easily fill all three of these requirements.
The judge tried to stop him again, but Mr Durant finished with a Thomas Hobbes quote which had been used in that case:
“If a man by the terror of present death, be compelled to doe a fact against the Law, he is totally Excused, because no Law can oblige a man to abandon his own preservation. And supposing such a Law were obligatory; yet a man would reason thus, if I doe it not, I die presently; if I doe it, I die afterwards; therefore by doing it, there is time of life gained; Nature then compels him to the fact.”
Ploughing on in the face of further protest by the judge, Mr Durrant finished by quoting recent CPS guidance (28 Jan 2019) on prosecuting protest offences, that “It is a defence to prove the conduct was reasonable and in accordance with the freedom of expression and other freedoms.”
Judge Gledhill said he would not change a single word of his direction and called in the jury, who had been unable to hear any of these legal arguments.
JUDGE SUMMARY CONTINUES
Continuing his summary of the trial for the jury, Judge Gledhill mentioned that in cross-examination, Mr Durant had admitted the chalk would ‘change the nature of the wall’ albeit temporarily and that there was nothing in Mr Mottershead’s letter that suggested consent. He said that Mr Durant had not sought consent at all.
In his summary of Hallam’s evidence, he suggested that the failure of Hallam’s business had been a major factor in his concern over climate change and that his research had made him something of an expert on campaigning. The judge didn’t repeat any of Hallam’s attempts to bring in previous case law, sticking to what he regarded purely as evidence, and reminded the jury that in cross-examination Hallam had also been unable to prove there had been any consent.
Before the jury retired to consider their verdict over lunch, the judge took them through some key points once more.
Judge Gledhill said that in order to find the accused guilty, the jury would first have to agree that damage had occurred. He said that the prosecution suggest the answer is yes, even if only temporary, while Hallam and Durant say no, despite the latter admitting it changed the nature of the walls.
Next, the jury would have to be sure there was either intention or recklessness. The prosecution said the intention was to cause temporary damage, but at the very least they had gone ahead without care, while the accused had pointed out the steps they’d taken to avoid damage.
And finally, the judge spoke about ‘lawful excuse’, directing the jury that the law as set out by parliament would not acknowledge ‘necessity’ in this case, and so the only matter to consider was whether consent had or would have been given. The prosecution argued that the university would never have consented to graffiti, even if temporary, while Durant and Hallam had spoken of all the positive effects of the campaign and the speed with which the university had agreed demands and even gone further in accepting the urgency of climate change, suggesting that all of this indicated Kings College ‘would have consented’ under the circumstances.
During lunch, the defendants, their lawyer friends, and some of their supporters were discussing how many of the jury would have to hold out for a ‘not guilty’ verdict despite the judge’s directions and summary, for the result to be hung. Few thought there was much chance of what is known as a ‘perverse judgement’, where a jury goes against the letter of the law and provide a moral judgement based on the spirit of the law.
The jury took their seats after deliberating for a couple of hours before and during lunch, and when their foreman said they had reached verdicts that they were ALL AGREED on, hearts sank in the public gallery. But when the first count relating to Mr Hallam’s earlier solo act outside the university was read out, and the foreman replied NOT GUILTY, there was jubilation. The next two counts, against both men, were a formality – both found ‘not guilty’.
It appeared the jury had been swayed by the enormity of the climate crisis against the insignificance of chalk marks, and perhaps by the effect the protest had had on the university. Of course, we can never know what discussions were held in the jury room, and what factors led to those verdicts, but there was a clear sense that they had decided to ignore much of the judge’s summary and direction in arriving at their final and unanimous decisions. Judge Gledhill wrote a few notes, while members of the public exchanged excited whispers, and then after a minute, he uttered five words without looking up once – “You are free to go”.
CELEBRATION AND VINDICATION
Outside the court, the two campaigners were overjoyed. They had faced serious charges, with the possibility of fines, thousands of pounds of compensation and many more thousands in costs for the jury trial. All this, over a period of more than two years, in what seemed to be a vindictive prosecution by the state, given that the university had not pursued any sanctions against them, and had even allowed the event to be included as a practical trial within Hallam’s PhD thesis.
Hallam described the trial as a complete travesty of justice and both men complained about the way the climate evidence had been disallowed by the judge. Mr Durant noted that Judge Gledhill had told the jury that there was still argument over whether the crisis is at all urgent. Mr Hallam said that not only does direct action work, but it wins in a court of law in front of a public who have woken up to the reality of the climate crisis. He promised that he would be out breaking the law again soon.