On 3rd October 2019, Extinction Rebellion activists drove a converted fire engine in front of the UK Treasury building and attempted to deliver 1800 gallons of fake blood.
During the third week of their recent trial, on coincidentally the exact fourth anniversary of the action, one of the defendants showed Real Media’s film of the event to the jury at Southwark Crown Court.
This is not the first time Real Media’s films have received court screenings (often in trials which have then gone on to result in jury acquittals) – Shell 7, King’s College Divestment, Palestine Action, Burning Pink, ScientistRebellion.
The Treasury was targeted for its role in funding climate damage by allowing the UK Export Finance department to spend billions of pounds on fossil fuel projects.
Despite the fact that XR activists purposely used food dye in water to easily wash away, the Crown Prosecution Service claimed £17,000 of damage to the Treasury building, and the defendants faced a maximum sentence of ten years imprisonment for conspiracy.
At the time of the protest the expectation was that during any court trial, the activists would be able to talk freely to the jury about the necessity and proportionality of their actions and would have a decent chance of proving they therefore had a lawful excuse. They made no attempt to leave the area, and as shown in the film were quite happy to justify the need for such steps in the face of a climate and ecological emergency.
Had they faced trial within a reasonable time period of a few months or a year, like many others they would have been able to rely on established human rights principles to explain their actions fully to the jury. But it has taken four years to come to trial, and things have changed.
As reported in depth elsewhere on Real Media, new rulings and laws have recently come into effect, and battles are often fought out of sight of the jury as to what defendants are allowed to say and over what defences lawyers can put forward. This reached a peak last year at Inner London Crown Court when Insulate Britain activists (whose protests were over the climate crisis, home insulation and fuel poverty) were sent to prison for disobeying a legal ruling not to mention the climate crisis, home insulation and fuel poverty.
The Treasury fire engine defendants couldn’t be prosecuted under new public nuisance laws, because it is a fair tenet that one can’t be tried for a past misdemeanour using a law that only became part of the statute later. But they could be held to new restrictions in court, which were not expected or in place at the time they committed their offence. Is this just?
Despite the curtailment of their legal defences, defendants were still able to give the jury the rationale behind their actions, and some of the jury were visibly moved by what they heard – the dire consequences of ignoring the climate crisis and continuing business as usual. And on the 11th October, five of the six defendants were found NOT GUILTY by a majority of the jury. They couldn’t agree on a verdict on the sixth defendant, who then would join three others facing court this week in a separate second trial over the same action.
Because of the second trial, reporting restrictions have been in place and we were not able to report on the acquittal until now.
After these acquittals, neither the judge nor the Crown Prosecution Service relished the idea of a second trial, and so they made an offer of recording a ‘not guilty’ verdict if the four defendants would accept a ‘bindover’ (a not often used procedure dating from 1361). This took the form of an undertaking lasting for a year, ‘not to spray paint on any buildings as part of a protest’ – any breach will be fined £2000.
GP Diana Warner felt unable to accept this bindover, because the phrasing might imply she had been involved in a violent act, and so she was facing a five-day trial for her part in the Treasury action, beginning today. But shortly after 2pm this afternoon, after a delayed start, she was given assurances by the judge and the CPS lawyers that they would put on record that there was no suggestion of any violence to any person, and so another NOT GUILTY verdict has been recorded.
One defendant pleaded guilty earlier in the year and is now awaiting sentencing at the end of November, but given the acquittals of others, a lenient sentence is expected.
So, a randomly selected jury has once again heard evidence of the scale and magnitude of the climate and ecological crisis facing mankind, and then decided that direct action was entirely justified.
The continued regular acquittal of climate activists is causing consternation to prosecutors, the government, and perhaps most importantly their fossil-fuel lobbyists.
Often the only legal defence the jury is allowed to hear is something called ‘belief in consent’. The defendant has to persuade the jury that at the time of the action, they genuinely believed that if the people in charge of a particular building had known all the facts around an action, then they would have given their consent. This might seem a bit far-fetched, but as the ONLY permitted defence, it has been successful in numerous climate and anti-arms trials to date. It does give judges tremendous individual leeway in restricting how long a defendant can speak, and the scope of what they can refer to, and this has varied wildly from court to court dependant on the whims of individual judges.
Worryingly, no doubt in response to continued acquittals, it looks like even this last defence is under fire.
We are aware that CPS lawyers are waiting for the right case to appeal to higher courts and establish a new ruling which might severely restrict or even do away with this defence. We are also aware that in another protest-related case being heard this year, a judge has already ruled out the ‘belief in consent’ defence, leaving defendants with no ‘lawful excuse’.
With no defences available for a jury to hear, it will surely not be long before protesters could face juryless trials (hitherto reserved for terrorism or serious organised crime trials where jury-tampering was a strong possibility). This would be an extraordinary step for UK open justice, which has always held criminal proceedings in open court with free reporting, and would undermine the Article 6(1) ECHR right to a public hearing.
As long as protest defendants are judged by their peers (a randomly selected 12 person jury), there is a check and a balance against any unjust restrictions on fairness. Real Media has reported previously on the campaign joined by hundreds, to raise awareness at courts around the UK, that juries have an ‘inalienable right’ as established in law, to acquit on their conscience. It is important that this right is maintained – it is a last protection against undemocratic and even fascist power and authority.
Article edited on 31st Oct to add nuanced detail to ‘belief in consent’ explanation.