Eroding the rights of juries and protestors

There are sinisters move in the judicial system to remove basic rights for people in the dock and jury box writes Jessica MacKenzie

In February 2023, a supporter of Insulate Britain was given an 8-week custodial sentence. But the 8 weeks in jail were not for disrupting traffic in protest about global warming. No, David Nixon was jailed because he used the words “climate change” in his closing speech to the jury after he was ordered not to by the judge.

Court decisions that protestors’ motives are irrelevant

David Nixon was on trial with four other defendants for causing a public nuisance by blocking the junction of Bishopsgate and Wormwood St in the City of London in October 2021.  Judge Silas Reid (a wonderfully Dickensian name) directed the defendants not to explain their motivations when discussing their actions or to use certain terms such as “fuel poverty” and “climate change”. Any defendant who ignored these directions would be held in contempt of court (an imprisonable offence). Judge Silas reasoned that the jury’s role was not to decide whether the actions of Insulate Britain were to be applauded or condemned, but whether protestors had caused a public nuisance.

On this framing of the court’s role, motive has no relevance.

The ruling is part of wider and worrying trend of limiting the defences available to protestors. It is intended to discourage people from taking direct action and undermine the efficacy of the direct action that does take place. One of the main functions of radical protest is to shift the window of discussion by drawing attention to a cause. Preventing people from explaining why they felt the need, for example, to glue themselves to a road removes a key opportunity to raise awareness. Sections of the state and the judiciary are concerned that in several recent cases, climate activists have been found not guilty even after admitting their actions.

• In 2021 six Extinction Rebellion activists were found not guilty by a jury even after the judge told the jury that a moral justification for their actions was not a lawful defence.
• In 2023 nine Extinction Rebellion activists were cleared of criminal damage by a jury after they smashed the windows of HSBC bank in London, causing 500,000 of damage.

So, any trend to limit defences will have consequences for the role of juries in criminal cases.

After David Nixon was jailed, two other protestors – Amy Pritchard and Giovanna Lewis were also jailed for mentioning climate change and fuel poverty in their defence. Judge Reid directed the jury to disregard the defendant’s comments and the motivations of the protestors. The jury was not to consider climate change or fuel poverty in its deliberations, he stated.

In response Judge Reid’s actions, Trudi Warner, a 68-year-old court observer, held a placard outside the trial which read “Jurors: You have an absolute right to acquit a defendant according to your conscience”.

Judge Reid’s reaction was to have Warner arrested the next time she attended court to sit in the public gallery. She was held in detention until a hearing before the end of the day, at which Judge Reid initiated contempt of court proceedings against her.  The full weight of the Crown Prosecution Service was brought to bear, and in April 2024 the solicitor general sought permission from the High Court to pursue her for contempt of court. While this permission was denied, it proved to be only a brief reprieve for Warner. Last month, the solicitor general announced the government would be appealing the decision not to allow the contempt of court action. The reason? To “protect jurors from interference”.      

Redefining juries’ role

Judge Reid has quipped that “It is for history to judge and not the jury”. This might sound controversial to Judge Reid, but it is also up to juries to judge someone’s guilt or not. This is a salient point. While the jury in the Insulate Britain trial described above found the defendants guilty, other juries in almost identical cases have acquitted defendants even though on the face of it a public nuisance was caused.

For example, it would be hard for any barrister to argue that tipping the slave trader Edward Colston’s statue into Bristol harbour in 2020 did not cause it any damage. But the jury acquitted four protestors of criminal damage. They did not believe that a conviction on those grounds would be a proportionate interference with the defendants’ rights to freedom of expression, thought and conscience.

And should juries be guided by the bigger picture? Yes, undoubtedly. The nuisance created by climate activists is nothing compared to the nuisance that will be, and already is being, caused by climate change. The damage to Colston’s statue pales in comparison to the colossal human loss of life in the Atlantic slave trade which Colston personally helped to perpetrate.

But isn’t the role of juries only to determine whether a crime has been committed, regardless of motive or context? Judge Reid would certainly have us believe so.

Central to these questions is the English law principle of the independence of juries.

Principles from history

The history of juries in England begins officially in 1215 at Runnymede with the Magna Carta. Clause 39 states that no free man could be imprisoned ‘except by the lawful judgment of his peers [i.e., social equals] or by the law of the land’.

The idea of a trial by jury being central to English justice was arguably cemented by parliament’s challenge to the divine right of kings during the English Civil War, when Charles I was beheaded following a trial by jury in 1649.

In the same year, another man was saved by the intervention of an independent jury: John Lilburne, leader of the Levellers (a radical and progressive political movement during the Civil War) was prosecuted for treason after distributing pamphlets challenging the authoritarian aims of the new Commonwealth Government headed by Oliver Cromwell. The judges in Lilburne’s case attempted to establish that if they decided he was guilty, the jury would have to follow their direction. Lilburne was scornful of this blatant dismissal of jury independence. He accused the judges of being “no more than Norman intruders” and called on his “fellow citizens” on the jury to follow their own conscience rather than the judges’ directions. He was successful; the jury needed only one hour of deliberation to find Lilburn not guilty of all charges.

The case against John Lilburne is an early example of the ways in which jury independence has the potential to support popular and radical forms of protest and revolutionary activity.  But the fundamental principle of jury independence was not really put to the test until 1670 in a trial known as Bushel’s Case.

• In 1664, Parliament passed the very unpopular Conventicle Act, which prohibited religious assemblies of four or more people, unless they were Church of England.
• Two individuals, William Penn and William Mead, were arrested in August 1670 for preaching to a crowd of quakers and charged under the Conventicle Act.
• Despite clearly having breached the act, the jury – led by a man called Edward Bushel – moved to acquit the quakers, finding them “guilty of speaking in Gracechurch Street” but refusing to add “to an unlawful assembly”.
• The judge refused to accept this verdict and told the jury that they would “not be dismissed until we have a verdict the court will accept”.
• The jury deliberated and proposed a somewhat amended verdict, finding Penn and Mead “guilty of speaking to an assembly in Gracechurch Street” but again leaving out the word “unlawful” in relation to the assembly.
• Upon hearing this second unacceptable verdict, the judge had the jury locked up without food, water or heat. After a two-day fast, the jury again submitted a not guilty verdict. The judge fined the jury for contempt of court, but Bushel refused to pay the fine.
• Bushel challenged his imprisonment by petitioning the Court of Common Pleas for a writ of habeus corpus – the principle that a person can only be imprisoned lawfully. The writ was issued, and it was ruled in November 1670 that a jury could not be punished simply on account of the verdict returned, establishing the right of juries “to give their verdict according to their convictions”.

So, juries can judge a case according to their conscience. The principle – known as jury nullification or jury equity – has been handed down and incorporated into English common law. It has been characterised as a safeguard against unjust laws and excessive punishment in Britain. Richard Marshal has written about past jury nullification campaigns – for example, against the application of the death penalty in instances of suspected bank note forgery in the 1800s – where the “sustained pressure of acquittals forced changes to unjust laws”.  

It should be noted that juries are never informed of their ability to judge according to their conscience. Indeed, before a case begins, they must swear to try the case according to the evidence. But as juries have the ultimate right to find defendants guilty or innocent and do not need to give their reasons for doing so, they continue to be able to acquit defendants even where the law demands a guilty verdict (these are known as perverse judgments).

Later judgements

There are recent, well-known cases of juries using their right to find according to their consciences when dealing with issues of political and moral controversy.

• In R v Kronlid (1996), three women caused damage over £1.5 million to a Hawk fighter plane. The defendants admitted to doing so on the grounds that the plane was going to be sold to Indonesia and used in genocidal attacks on the people of East Timor. The jury found all three defendants not guilty.
• In R v Ponting (1985), Ponting, a civil servant, leaked information relating to the sinking of an Argentinian warship in the Falklands war. Ponting argued that he had been acting in the public interest, but the judge directed the jury to dismiss the public interest argument, stating that “the public interest is what the government of the day says it is”. But nonetheless the jury acquitted him. 
• In 2007, two anti-war campaigners, were cleared of conspiracy to cause criminal damage by a jury after breaking into a RAF Fairford Gloucestershire, a military airbase, to sabotage US bombers at the start of the Iraq war. They argued the B52s would be used to commit war crimes in Iraq.

And so, when Trudi Warner stood at the court entrance holding her sign, she was doing no more than citing a well-known principle of English common law. Indeed, had the jury been entering the Old Bailey they would not have needed Trudi Warner to hold up a sign, as there is plaque commemorating Bushel’s case and the right of juries “to give their verdict according to their convictions”.

Warner’s actions sparked a movement across the country, with people standing outside courts informing juries of their independence and right to acquit according to their conscience. The organisation Defend Our Juries was set up to defend this right and ensure that “all defendants have the opportunity to explain their actions when their liberty is at stake”. 

What next for juries?

At Warner’s initial contempt of court case, Mr Justice Cavanagh ordered that it be referred to the Attorney General to decide if the proceedings should continue. Justice Cavanagh remarked that “it is not the case in any trial that jurors can acquit by their conscience if by that it is meant that they can disregard evidence and directions given by the judge and decide on their own beliefs whether a defendant is guilty of a criminal offence. To do so would be a breach of their jury oath and cause injustices.”

It is true that the independence of juries is not always a force for good. Juries can sometimes convict despite strong evidence for the defence, harbour prejudices and make severe errors of judgment. Countless examples of miscarriages of justice by juries are to be found  during the era Jim Crow laws in the USA, when Black men were put on trial for trumped up charges (a practice which continues today, as argued by Michelle Alexander among others).

Similarly, juries are not consistent. Recent public nuisance and criminal damage cases involving protestors have led to both guilty and not guilty convictions, even though the facts are very similar.

That said, it does appear on the whole as though juries are more lenient on protestors than the law would otherwise allow. And their ability to render perverse judgments is undoubtedly a check on the government’s power – even if the government passes a law, a jury can still decide to ignore it, and so undermine executive power.

The power of juries to ignore unpopular laws has not gone unnoticed. In two recent cases of protestors being acquitted by juries, the government has actively used the court system to remove defences that can be considered by juries.

• Following the acquittal of the protestors who toppled the statue of Edward Colston into Bristol harbour, then Home Secretary Suella Braverman directed the Attorney General to ask the Court of Appeal to consider whether future defendants should be able to rely on certain human rights protections when on trial for criminal damage.

The Court of Appeal ruled that protestors will not be able to rely on this defence in future, because, if the damage was as extensive as the damage done to the Colston statue, then the actions would necessarily involve conduct that was “violent or not peaceful”, and so fall outside the right to peaceful protest, or that otherwise the value of the damage would justify prosecution and conviction as proportionate.

Katy Watts, a lawyer for the UK human rights organisation Liberty, said the judgment “takes away vital protections that empower everyone to be able to stand up for what they believe in … By placing weight on the value of an object in deciding if human rights can be taken into account, we feel that the court is shifting the balance too far away from our essential human rights.” 

• Similarly, the Attorney General appealed the jury’s decision to acquit the environmental protestors who smashed windows at HSBC. The Court of Appeal found that in future cases, defendants would no longer be able to rely on the defence of “consent” – where a person honestly believes the owner of a property would have consented to the damage had they known the full circumstances. The defence has been used successfully in previous climate protest cases.

Counsel for the defence had argued that it is a matter for the jury to decide whether the defendant subjectively believed that the owner would have consented, and that to stop a defendant presenting the defence to jurors “would be a slippery slope to the erosion of the constitutional right to trial by jury”.   

However, the Court of Appeal found that “the political or philosophical beliefs” and the “reasoning and wider motivation” of the defendant were “too remote” from the criminal damage and did not constitute lawful excuse. Evidence from defendants about the facts of climate change in future cases will be inadmissible.

It is clear the government is aware of the threat posed by jury independence and is seeking to limit the defences that can be presented to them. The government’s steps to limit the defences that can be presented to juries is very similar to the actions of Judge Reid, who doesn’t  want his jurors to be led astray by mentions of “climate change” or Trudi Warner’s sign informing them of their right to acquit a defendant according to their conscience.

All this means that a jury is now more likely to convict protestors. These changes in the rule of law must also be viewed in the context of recent legislation specifically designed to limit our right to protest (the Public Order Act 2023 and the Police, Crime, Sentencing and Courts Act 2022).

Michel Forst, the UN special rapporteur on environmental defenders, issued a statement in January 2024 condemning these “regressive new laws”. In relation to juries, he particularly stated that he was alarmed to learn that:

[…] presiding judges have forbidden environmental defenders from explaining to the jury their motivation for participating in a given protest or from mentioning climate change at all. 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.

The UK government has not responded to Forst’s statement.

In the meantime, protestors and court observers like Trudi Warner will continue to be tried for contempt of court if they attempt to give juries a full picture of a protest’s circumstances or of the jury’s right to judge according to their conscience. In such circumstance, the courts may well be worthy of our contempt.

A final note

Following the jury’s decision to acquit John Lilburne of High Treason in 1649, the people in the court’s public gallery “gave such a loud and unanimous shout as is believed was never heard in Guildhall which lasted for about half an hour without intermission which made the judges for fear turn pale and hang down their heads.”

It is important to remember the power of collective action in times like these – when every attempt is being made to silence all forms of protest, to imprison those who speak truth to power, and to remove freedoms we have fought for over centuries. When people unite their voices as one, it is a commanding force which makes those in power turn pale and hang down their heads in fear.