Court of Appeal: More Bad News for Protestors: Criminal Damage

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22 March, 2024

Craig MacKenzie

In the case of Attorney General's Reference on a Point of Law No 1 of 2023 [2024] EWCA Crim 243, the Court of Appeal considered the defence of "lawful excuse" in the context of criminal damage committed by protestors.

In 2020, a group targeted the premises of a number of organisations. At each premises, the group asked to hand in a letter and then proceeded to cause damage and to attach copies of the letters to the premises. The letters drew attention to the climate emergency and what they saw as the culpable inaction of the organisations targeted.

A defendant, known now only as C, gave evidence at trial. Her case was that she believed that the occupiers of the premises (which she and others agreed to damage) would have consented to the damage had they been aware that it was carried out to alert those responsible for the premises to the nature and extent of man-made climate change. Her evidence was that some members of staff in the various organisations whose premises were damaged "know that they are failing" and were critical of their response to climate change. C said that this justified her belief that they would have agreed with the defendants' action. She said that "the people who we believe have the right to consent… would have consented had they been aware of the full circumstances at the time". If they were "emotionally engaged, they would have consented to a bit of pink paint being thrown". It would help mobilise their members when they saw the action in the press. C had said "it has got to be a shock impact, so they wake up".

C was acquitted and as a result the Attorney General asked the Court of Appeal to clarify the law in this area.

The question for the Court of Appeal was whether it is proper to leave such defences to a jury and, more specifically, whether a the jury could consider factors:

...' including the merits, urgency or importance of any matter about which the defendant may be protesting by causing the destruction or damage, or the perceived need to draw attention to a cause or situation?'

In its ruling, the Court of Appeal has now shut down this line of defence, ruling that:

"Circumstances" in the phrase "the destruction or damage and its circumstances" do not include the merits, urgency or importance of the matter about which the defendant is protesting, nor the perceived need to draw attention to a cause or situation.

Protest group, Plan B, reacted to the ruling by saying:

"Following a pattern of jury acquittals of environmental defenders and anti-genocide activists, which exposes the media fiction that the British government's 'crackdown on protest' is in any way democratic, the Court of Appeal has today backed the Attorney General's call to remove what was for many their last remaining line of legal defence. It has ruled that mass loss of life from climate breakdown and the government's failure to act on the science are irrelevant to the circumstances of an action, for the purposes of the defence of consent to damage to property.

When will the legal profession and the judiciary wake up to what's happening? It must be obvious to every serious observer that British law is being instrumentalised, on behalf of the fossil fuel industry, to silence and repress those taking action to confront the extreme danger from climate breakdown," he said.

If the urgent interventions from the UN and civil society organisations are not setting warning lights flashing, what will it take? With the established courts failing to discharge their basic function of protecting the British public from the abuse of power, it's inevitable that others will step up."

It is unlikely that we have heard the last word on this vexed topic, and the issue of jury nullification (inviting a jury to return a verdict according to its conscience) remains to be litigated appropriately.

We will consider the implications of this recent ruling and how defence strategies might have to adapt and evolve as a result of it.

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