Environmental Protesters: Are courts afraid of climate change?

It’s no secret that environmental protesters are increasingly coming into conflict with the criminal justice system. Through direct action (civil disobedience), their actions challenge how far we should permit the right to protest, enshrined in articles 10 and 11 of the ECHR and the Human Rights Act, to justify otherwise unlawful activity. They are increasingly standing before the courts, and in particular juries, which appears to be posing a concern for judges.

What’s happening in the courts with environmental protesters is quite concerning and muddled. 6 XR protesters were put on trial for criminal damage that occurred in 2021.[1] It was heard by a jury, and during the trial they were able to say what their motivations for committing the damage were. This permitted them to submit (limited) evidence regarding their subjective views on climate change. They were acquitted, despite the judge apparently stating that they did not appear to have any defence in law.

In another more recent trial, 3 Insulate Britain protesters were on trial for public nuisance committed in 2021, but this time they were barred from mentioning climate change at all as a reason for their actions.[2] One defendant in a previous trial attempted to, was found in contempt of court, and sentenced to 8 weeks in jail. [3] All 3 in this case were found guilty.

The two approaches above seem at odds with each other. Unless the court is becoming concerned that juries are more likely to acquit if they hear justifications related to climate change. It is further unclear what the legal justification for this is.

It could be due to the fact that in 2021, when the offences were committed, public nuisance was still a common law offence, and therefore did not have a defence of ‘reasonable excuse’. A defendant would therefore not be able to rely on their right to freedom of expression and assembly as a ‘reasonable excuse’. Some offences have this defence, and others don’t; with the distinction being mostly arbitrary – See Northern Ireland Abortion Services for a recent overview of this issue in the UKSC.[4] They may have been barred from any mention of climate change on those grounds, though the reporting isn’t clear. Public nuisance is now codified in legislation with a reasonable excuse provided;[5] therefore, it will be interesting to see whether future trials permit defendants to submit their justifications for committing the offence.

Then, just recently, a quite remarkable judgment was handed down by Judge Wilkinson, in a case where 7 from Just Stop Oil were found guilty of offences related to blocking the distribution of oil from an Esso fuel terminal.[6] The words of Judge Wilkinson are worth being included here. He said the following in passing his judgment:

“No-one can criticise your motivations. You all gave evidence that was deeply moving. I certainly was moved. The tragedy is that good people have felt so much, without hope, that you feel you have to come into conflict with the criminal justice system.”

“Thank you for opening my eyes to certain things. Most, I was acutely and depressingly aware of, but there were certain things.”

“I say this and I mean this sadly, I have to convict you. You are good people and I will not issue a punitive sentence. Your arrests and loss of good character are sufficient. Good people doing the wrong thing cannot make the wrong thing right. I don’t say this, ever, but it has been a pleasure dealing with you.”

“You should feel guilty for nothing. You should feel proud that you care, have concern for the future. I urge you not to break the law again. Good luck to all of you.”[7]

The BBC have however given a slightly different account of his wording which is shown below:

Despite the differences, they are powerful words, and more importantly provide another example where protesters voices were heard in court. When taken alongside the other cases above, they show that the judiciary appear to be completely at a loss in determining how to deal consistently with these cases.

On the horizon is the Public Order Bill. It creates new specific offences of ‘interfering with key infrastructure’, mostly defined as infrastructure related to oil, gas and energy – along with the transport networks that facilitate movement of goods.[8] On its face it directly targets environmental protestors and their tactics. Do the wealthiest companies in the world really need further legal protection from a relative handful of protesters? If the Bill is passed, there will be many more of the cases such as above in the courts, and who knows what approach will be taken. Will they be permitted to speak about their motivations? And if not, what are the courts so afraid of?

[1] David Lambert, ‘Juries Keep Letting Extinction Rebellion Off the Hook – Here’s Why’ Evening Standard (London, 08 April 2022) Available at:  https://www.standard.co.uk/comment/juries-judges-extinction-rebellion-innocent-just-stop-oil-protests-climate-activists-b992610.html [Accessed on 20 March 2023].

[2] Sandra Laville, ‘Insulate Britain Activists Found Guilty Over London Roadblock’ The Guardian (London, 13 February 2023) Available at: <https://www.theguardian.com/environment/2023/feb/13/insulate-britain-activists-found-guilty-blockade#:~:text=Three%20Insulate%20Britain%20activists%20have,sit%2Ddown%20blockade%20of%20traffic.> [Accessed on 20 February 2023].

[3] Damien Gayle, ‘Insulate Britain Activist Jailed for Eight Weeks for Contempt of Court’ The Guardian (London, 07 February 2023) Available at: <https://www.theguardian.com/environment/2023/feb/07/insulate-britain-activist-david-nixon-jailed-for-eight-weeks-for-contempt-of-court> [Accessed on 20 February 2023].

[4] Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32.

[5] Police, Crime, Sentencing and Courts Act 2022, art 78.

[6] Just Stop Oil, ‘’”You Should Feel Guilty for Nothing” Says Judge, as he Finds Seven Guilty and Acquits Two, for Disrupting Esso Terminal in Birmingham’ Just Stop Oil (16 February 2023) Available at: <https://juststopoil.org/2023/02/16/you-should-feel-guilty-for-nothing-says-judge-as-he-finds-seven-guilty-and-aquits-two-for-disrupting-oil-supplies-at-esso-terminal-in-birmingham/> [Accessed on 20 February 2023].

[7] Just Stop Oil (n 4).

[8] Public Order HC Bill (2022-23) [82], cls 8 + 9.