In October 2019, Extinction Rebellion co-founder Dr Gail Bradbrook cracked a window at the Department of Transport as part of ongoing protests at government inaction on the climate crisis – in particular its support for the controversial HS2 line, and plans for further airport expansion. At the time she said she was acting out of conscience, in defence of more than a hundred ancient woodlands threatened by HS2, and cited Emmeline Pankhurst’s famous phrase “the noble art of window smashing”.

Although increasingly repressive legislation introduced since her protest (eg. PCSC, and the Public Order Act) cannot be applied to her case retrospectively, her trial has suffered several delays during which case law has been contested. This included the see-saw interpretations of the Ziegler case, which for a while confirmed that activists could mount a human rights defence if their actions were peaceful and proportionate. But following the acquittal of the Colston Four (who toppled the slave-trader statue in Bristol), the then Attorney General Suella Braverman referred the case to the Court of Appeal, and a new judgment was handed down in September last year. This imposed strict limits on the use of Article 10 and 11 rights as lawful defences in protest cases, and it has affected very many protest cases since.

Many campaigners believe that these latest restrictions on the lawful defences available, which constrain what a defendant may say in front of a jury, are a direct response to instances where protesters have been acquitted after juries have listened to and considered the full context and motivation for their actions.

Among many such examples are Shell 7, Palestine Action, Scientists Rebellion and Burning Pink. An earlier case reported by Real Media, was against another co-founder of Extinction Rebellion, Roger Hallam. His Honour Judge Gledhill KC instructed the jury that the only defence available in law was whether King’s College London (which had suffered the alleged criminal damage) would have consented to it. We will never know the reasoning of the jury, but they went ahead quickly and unanimously to acquit Hallam and another defendant.

Dr Bradbrook’s trial – she is charged with £27,000 of criminal damage – began at Isleworth Crown Court last week, but Judge Martin Edmunds discharged the jury and abandoned the trial on Tuesday. It is now scheduled to take place starting on 20th October, 5 years after the initial protest. He also issued reporting restrictions which prevent us from commenting any further on this particular case or the reasons behind its postponement.

We can tell you that between 8.30 and 9.30 this morning at Isleworth, although no climate or protest trial was listed, more than 20 protesters sat quietly holding placards at both court entrances. Some displayed a message, while others simply held blank boards – a symbol of state repression and silencing. This was a repeat of a similar protest outside the court on Monday at which they delivered a letter to Judge Edmunds which is already in the public record.

The placards with messages reminded passers-by, potentially including jurors, of a legal principle which was established in the 17th century, that a jury has an “absolute right to acquit on their conscience”. A similar message, and the case it refers to, is actually commemorated by a plaque in the Old Bailey court building, applauding the “courage and endurance” of jurors who’d acquitted two defendants in defiance of the judge’s directions, despite their being imprisoned by him for two days without food or water.  

Real Media reported at the end of March on the arrest of retired social worker Trudi Warner, who held a similar placard outside Inner London Crown Court. Her action was in response to several cases in which defendants had been warned by Judge Silas Reid not to mention climate change or fuel poverty to the jury. Three climate activists were even sent to prison for contempt of court after defying this order, and trying to explain to jurors the motivation for their actions – in at least one case the jury was then discharged.

Judge Reid ordered the arrest of Trudi Warner and she was sent to the Old Bailey for “contempt in the face of the court attempting to influence the jury”. There, the Honourable Mr Justice Cavanagh decided to refer the matter to the Attorney General, The Rt Honourable Victoria Prentis KC MP, to decide whether to pursue a contempt proceeding against Trudi, or to refer the matter to the CPS to pursue a criminal charge of attempting to pervert the course of justice. That decision is still pending and Trudi has been invited to make representations before a forthcoming final ruling.

A recent article in The Guardian suggests the Attorney General may have failed to properly disclose shares held by her or by close family in several FTSE100 companies (including BP and HSBC – the bank that likes to say yes to fossil fuels). As Attorney General it is of utmost importance that any potential conflicts of interest are flagged up, and the Guardian’s investigation casts some doubt whether that has happened, raising questions about undeclared shareholdings.

Three other people have been arrested in connection with the jury awareness-raising campaign, and are under investigation for allegedly attempting to pervert the course of justice. Another 24 are ‘under investigation’.

In the context of all this, a broad cross-section of people including several legal professionals have decided to continue the campaign of messaging jurors, or have chosen to hold the symbolic blank banners. They want to highlight the ways in which our justice system is becoming another path by which the current government is repressing criticism of, and meaningful protest against, climate inaction.

At a time when corporate and state media have an agenda set by a very few right-wing billionaire newspaper moguls, when more and more repressive laws make all but the most ineffectual of protests unlawful, when voter ID discriminates against more vulnerable sectors of society even having a democratic voice, and when the majority of scientists and many reputable world bodies are clearly telling our government their policies are taking us on a suicidal path, a randomly selected jury of twelve citizens may be the last check on unfettered power, which is why their right to ultimately make a moral or conscientious judgment must remain enshrined in law.