This article was updated on 9th August with a new video interview explaining ‘Hoffmann’s Bargain’ – see below:
A recent report published by Queen Mary University’s Centre for Climate Crime and Climate Justice (CCCCJ) takes an evidential approach to UK political and legal changes that have resulted in hundreds of peaceful protesters being jailed. Real Media interviewed two of the research co-authors, David Whyte, a professor of socio-legal studies and co-director of the CCCCJ, and Paddy Friend, spokesperson from Defend Our Juries.
When first published in May, the research documented climate and Palestine solidarity protesters who had been imprisoned by the state since 2019. The work took nearly a year because there were no central records of the information required, so innovative investigative methods had to be developed.
He study revealed nearly 300 people had been jailed either on remand or after sentencing, and reliable figure for around 250 of those showed that one in three had been imprisoned for more than six months, and one in five for more than a year. Alarmingly, nearly half were incarcerated for ‘contempt of court’, reflecting a huge increase in the use of private injunctions both by corporations and on behalf of the state, with no right to a jury and a lower threshold of proof. Conspiracy cases too were on the increase – protesters jailed pre-emptively for offences that in some cases hadn’t yet happened.
The almost arbitrary use of remand has also risen dramatically. Bail is increasingly refused on the basis of risk of re-offending citing an activist’s unshakeable motivation. While changes in law (and new legal rulings redefining existing laws) deny the right for defendants to explain their motives to a jury (as deemed irrelevant), those same motives CAN be used by a judge to deny the same defendant’s freedom. In more than half the documented cases, the time served on remand ended up being greater than the final sentence imposed.
The report provides important background to the way law has been influenced by opaquely-funded right-wing think tanks such as those based at Tufton Street, and of course by the alleged sex pest, ex-MP John Woodcock (Lord Walney), whose financial connections to the arms and fossil fuel industries were exposed when he was working as ‘Independent’ Government Advisor on Political Violence and Extremism.
At the same time, the billionaire-owned press represents the same fossil-fuel and arms company interests, backing rising right-wing parties such as Reform, and demonising Net Zero policies and so-called ‘woke’ politics. David Whyte pointed out that it’s actually poorer and working-class people already suffering most from climate changes, air pollution and the economic effects of war, while the Farage’s of this world have the financial backing to protect themselves from the consequences of their own policies.
Although authoritarian repression is increasing in many supposedly democratic states across the world, the changes here are particularly harsh. A University of Bristol study has shown that UK police are using arrests to control environmental protests at a rate almost three times that of the international average. Independent international human rights monitor Civicus has recently downgraded the UK to the same level (Obstructed) as Orbán’s Hungary.
All of this clampdown flies in the face of multiple surveys that show deep public concern over the climate crisis and over Israel’s actions in the Middle East. Both Paddy and David characterise the British government and criminal justice system’s response as a punitive reaction to that public opinion and associated effective protest action – even a sign of weakness.
A real difference between climate and anti-war protest movements as opposed to emerging far-right street protests, is that the former is seeking systemic change, a move away from a war and energy-driven economy, and more democratic control, while the latter is effectively trying to strengthen existing power structures and authoritarianism. Although this report focussed on the former group, an Institute of Race Relations (IRR) report published in January took a look at the myth of ‘two-tier’ justice and did make the point that motivational context was removed in the courtroom in much the same way as climate trials, characterising actions purely as thuggery. This left vulnerable people facing summary justice, while those egging them on with far-right rhetoric did so with impunity.
It’s interesting to note that few if any of the organisers and cheerleaders of far-right thuggery have ever faced prison, whereas the most vocal climate and anti-war protesters have been relentlessly pursued with tools of repression including conspiracy charges, injunctions and even terrorist proscription.
Responding to the IRR report, Zrinka Bralo, CEO of Migrants Organise, said: “The political rhetoric of ‘control and order’ restoration will deepen injustice, normalise fear and further erode the democratic values it claims to defend and hand over the power to the far right”.
HOFFMANN’S BARGAIN
Hoffmann’s Bargain is the legal shorthand for an important principle set out by Lord Lennie Hoffmann in the 2006 case of Margaret Jones and others who vandalised U.S. B-52 bombers at RAF Fairford to highlight the illegality of the impending Iraq war. He referred to the ‘long and honourable history’ of direct action and civil disobedience, and history’s vindication of the Suffragettes and other civil rights protest movements.
He ruled against the defence of ‘necessity’ on the basis that we must treat criminal acts from the perspective that we live in a ‘functioning democracy’. People can effect change through legal protest and the ballot box, he claimed, and so ‘taking the law into their own hands’ where they perceive, for instance, international law is being flouted, cannot be a reason for a jury to acquit.
While effectively clamping down on crimes of conscience, the ‘bargain’ was that he ruled that where disobedience was proportionate and restrained, the judiciary must acknowledge that and be very lenient in their sentencing.
Over recent years we have seen that ‘bargain’ breakdown, as the most extreme sentences have been handed down to climate and anti-war protesters, and in this interview, co-author of the ‘Britain’s Policial Prisoners’ report, Paddy Friend, argues that it’s time for lawyers to re-examine the basis of Hoffmann’s bargain, in the face of an authoritarian and increasingly undemocratic system.
