The woman at the centre of an attempt by the government’s senior law officer to remove one of the last remaining legal defences available to climate protesters says the move is an assault on the rights of juries to acquit defendants.
The young woman, who cannot be named for legal reasons, was found not guilty by a jury of criminal damage in a climate trial last year.
But the attorney general, Victoria Prentis KC, is taking her case to the court of appeal on Wednesday to argue the defence used at the trial should no longer be available to climate activists. The action follows a series of high-profile jury acquittals of climate protesters who spray-painted buildings of organisations and companies including HSBC.
The attorney general cannot challenge a not guilty verdict made by a jury, but can go to the court of appeal on a point of law. Prentis will argue that the defence of lawful excuse used by the woman, who is known as C, should not be available for acts of protest.
Under the “consent” defence, the defendant argues that they have a lawful excuse for their action because they honestly believe the organisation affected by the action would consent to the damage if it knew of the “destruction and damage and its circumstances”. C and other protesters have successfully argued to juries that the objects of their direct action would have consented if they had known more about the climate emergency.
Speaking to the Guardian, C said: “I was found not guilty by a jury after a long trial. I feel like the attorney general is trying to retrospectively challenge the jury’s decision. It feels like an assault on the rights of juries to acquit someone having listened to the evidence.”
Among the climate protesters who have successfully used the defence during the last year, nine were found not guilty of criminal damage at the London headquarters of HSBC bank, and several individuals were acquitted of conspiracy to commit criminal damage arising from their actions at the party headquarters of the Conservatives, Labour, Liberal Democrats and Greens.
Individuals protesting for Palestine Action were also found not guilty by juries after using the consent defence last year.
Prentis has said she wants “clarity on the law as guidance for future cases” involving climate and environmental protesters. According to documents submitted to the court of appeal she is arguing specifically that the defence should not be available to protesters, rather than all defendants in criminal damage cases.
Tim Crosland, a former barrister and the director of environmental campaign group Plan B, said this was blatantly discriminatory.
C said the Crown Prosecution Service had tried to have the consent defence removed from her in legal argument before the trial. But the trial judge rejected the CPS motion.
“They spent some time arguing this, but this was thrown out by the judge and I was allowed to use the defence,” C said. “They lost then, and it looks like they are trying to have another go. It feels like another attack on the democratic right of a defendant to have a jury decide its verdict.
“It is a way to undermine my not guilty verdict, but it is worse because if they win the defence will be taken away for every climate defendant after me.
“They are spending taxpayers’ money trying to undermine the jury and they are using this as a way to deny any last remaining defence to climate protesters.”
Last year, restrictions were imposed on environmental protesters during trials that forbade them from mentioning climate change, fuel poverty or the civil rights movement to explain their motivation for their actions to a jury. Several defendants who defied the rules were jailed for contempt of court as a result.
Last month, the UN rapporteur on environmental defenders condemned the the use of “draconian” new laws, excessive restrictions on courtroom evidence and the use of civil injunctions to crack down on climate protesters in Britain. Michel Forst said as the world faced a triple planetary crisis of the climate emergency, biodiversity loss and pollution, environmental protesters were acting for the “benefit of us all” and must be protected.
C said she was upset that her case was being taken to the appeal court in this way, adding: “I don’t have a voice in this at all.”
She said it came after “regressive” new laws under the Police, Crime, Sentencing and Courts Act 2022, and the Public Order Act 2023 curbed the right to protest. Both pieces of legislation were also condemned by the UN rapporteur.
Prentis said she decided to go to the court of appeal after seeing a number of climate activists acquitted of criminal damage last year.
“I have made this reference as it is important that the law is clear and fairly applied. I look forward to the court of appeal considering this issue, and would like to emphasise that regardless of the outcome of this reference, it cannot affect those who have been acquitted through the usual trial process,” she said.
In her skeleton argument submitted to the court, Prentis said: “C’s evidence … was evidence which need not have been given at all.” The attorney general said the trial judged had erred in law by allowing the issue of belief in consent as an issue to be left to the jury.
It is not the first time the Conservative government’s senior law officer has turned to the court of appeal to express unhappiness at a jury acquittal for criminal damage. Suella Braverman, when attorney general referred a point of law after four people were cleared over the toppling of a statue of slave trader Edward Colston in Bristol. The court of appeal ruled in her favour, removing the defence of proportionality for “significant” criminal damage under the Human Rights Act 1998.
The decision has since been used to stop climate activists from using the same defence – that a conviction would be a disproportionate interference the right to protest under the European convention of human rights – for other lesser offences including public nuisance.
