Today (Wednesday 21 Feb 2024) the British Government will attempt to remove a legal defence used by campaigners facing juries for their actions during protests.
The Attorney General has applied to the Court of Appeal to remove the ‘belief in consent’ defence, which has been successfully used by climate groups, human rights defenders, and others to justify taking non-violent, direct action. It comes as five climate activists face court for their alleged criminal damage of JP Morgan’s London office. There is now every possibility that these campaigners will be the last to use the ‘belief in consent’ defence.
What is the ‘belief in consent’ defence?
‘Belief in consent’ was established in the Criminal Damage Act 1971 and it allows defendants to argue that they have a lawful excuse for normally illegal action. It allows them to argue that the organisation affected by the action would consent to the damage if they knew of the “destruction and damage and its circumstances”. The ‘belief in consent’ defence has proved invaluable to campaigners. In November, a jury acquitted the HSBC 9 when it agreed that HSBC would have consented to their window being broken had they had known more about the climate emergency.
Clare Farrell is a co-founder of XR and was one of the HSBC 9 acquitted by a jury of her peers. Speaking to SMK ahead of the Court of Appeal decision, Clare said:
“The political establishment hates losing in court to nonviolent campaigners, and it happens all the time these days. They are too cowardly to face the existential issues of our time, so they continue to criminalise those who point out their failures. Repression is their only answer, when what we need is more democracy.”
Clare’s is not an isolated example. Juries similarly acquitted those who sprayed the treasury with fake blood to draw attention to the use of fossil fuels; members of the Palestine Action who defaced property of Elbit Systems; and acquitted several individuals who caused damage at the headquarters of the Conservatives, Labour, Liberal Democrats, and the Greens.
Not the only attack on juries’ role
Sadly, political intervention to undermine the role of juries is also not an isolated example. Following the acquittal of the Colston 4, who toppled the statue of Edward Colston in Bristol, then Attorney General Suella Braverman made an intervention to prevent future juries reaching similar verdicts – in this instance the Court of Appeal ruled in favour of the government.
Another recent example is preventing arguments on ‘necessity’ – another key defence for campaigners taking non-violent direct action. This allowed defendants to argue actions which might otherwise be seen as a crime are justifiable, as they are preventing a greater harm. Essentially, it compelled juries to make their judgement on the proportionality of an action against the cost of inaction.
For example:
Breaking the window of a car to steal the car. A crime.
Breaking the window of a car to save a dog. Not a crime.
In both of these examples the action is the same but the motivation of saving a dog outweighs the criminal damage of breaking a car window.
Impact on protest rights & democratic space
The direct result of these changes is that, more and more, people taking non-violent direct action will find themselves without legal defence and without the right to explain their motivations to a jury. This comes just one month after a UN special report which stated:
“It is very difficult to understand what could justify denying the jury the opportunity to hear the reason for the defendant’s action, and how a jury could reach a properly informed decision without hearing it, in particular at the time of environmental defenders’ peaceful but ever more urgent calls for the government to take pressing action for the climate.”
Government of any colour interfering with the courts is a concern, especially twinned with the legislative threats we’ve seen to protest in recent years. The campaigning organisation ‘Defend Our Juries’ argues that these new attacks are aimed at removing the last line of defence for campaigners, adding:
“The reason juries keep acquitting environmental defenders is that when they hear the evidence and reasoning, they understand that the defendants are acting for the greater good.”
Sadly, this is just the latest development of this type. The democratic space we enjoy as citizens has been slowly chipped away, by nearly all measures. This led to Civicus, downgrading UK civic space to ‘obstructed’ in 2023, a move that reflected concerns in SMK’s Annual Campaigner Survey released at the same time.
Speaking at the time, SMK Chief Executive Sue Tibballs said:
“The results of our survey, alongside the news Civicus has downgraded the UK as obstructed, should be a wake-up call. Our civic space is experiencing death by a thousand cuts and, at a time when ‘Global Britain’ is trying to carve out its new space in the world, we find ourselves in the same class as countries we have previously been a democratic example to.”