Crime and consent
Acquittals should be based on objective evidence, not subjective sympathies
On 22 April 2021, nine Extinction Rebellion protesters, using hammers and chisels, smashed windows at the headquarters of HSBC at Canary Wharf in London. They did so because they had objected to the bank’s investment in fossil fuels following the Paris Climate Agreement. The damage caused was estimated to cost £500,000. The defendants did not dispute that they were responsible for smashing the windows. Instead, they argued that they had a lawful excuse for the damage. During the trial, the jurors asked a series of unusual questions. According to Extinction Rebellion, the jurors asked for an explanation of the Paris Climate Agreement and also wanted to hear how HSBC had calculated the cost of the damaged glass so apparently quickly. Earlier this month, on 17 November, the protesters were acquitted of criminal damage at Southwark Crown Court. The verdict might have been reached through the jury considering that the defendants could rely on a lawful excuse defence, although there is a chance that this was a perverse verdict. In either case, the acquittal is troubling.
In either case, the acquittal is troubling
To explain the context behind the verdict, it should be noted that the defences available to defendants in protest cases have narrowed in the last few years. In the Colston case (which I discussed here), the defendants had been charged with the criminal damage of Edward Colston’s statue in Bristol during a Black Lives Matter protest. The judge, HHJ Blair KC, had required the prosecution to prove to the criminal standard that a conviction of the defendants would not be a disproportionate interference with Articles 9 (freedom of conscience), 10 (freedom of expression) and 11 ( freedom of assembly) of the European Convention on Human Rights (ECHR). A fact sensitive proportionality assessment was left to the jury. The then Attorney General, Suella Braverman, referred this issue to the Court of Appeal, concerned that the law needed clarification. Lord Burnett found that the judge at trial had indeed erred in law. Violent conduct did not attract the protection of the Convention. Lord Burnett explicitly mentioned that “smashing with a hammer” would be violent conduct, for instance. Additionally, the Convention would not protect damage to private property, violently undertaken or otherwise, since Article 1 of Protocol 1 of the ECHR protects the right of enjoyment of property. As a consequence of the Colston judgment, Gail Bradbrook, whose trial was delayed in part because of the Colston Attorney General’s Reference, was found guilty of criminal damage after she had smashed glass during a protest at the Department for Transport.
Further, in relation to another defence, in DPP v Ditchfield, the defendant, an Extinction Rebellion protester, had been charged with criminal damage after spray painting doors at the Cambridge County Council offices. She was acquitted at Cambridgeshire Magistrates’ Court after arguing that she had the lawful excuse of protection of property under section 5(2)(b) of the Criminal Damage Act 1971, saying that she was acting to protect the environment. On appeal by way of case stated, the High Court found that the acquittal was not open to the magistrates and substituted a guilty verdict. This was because the act, spraying paint, was not capable of protecting property and the protection was too remote. The property needed to be in immediate need of protection. If Ditchfield’s interpretation of the defence did apply, then, “this would give carte blanche to the pursuit of politics by means of damage to public or private property, which Parliament cannot, in our view, have intended”.
Without the availability of the human rights proportionality assessment or the protection of property defence, defendants in these cases have had to rely on other arguments. One such defence is under section 5(2)(a) of the Criminal Damage Act 1971. The defendant has a lawful excuse where:
… if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances.
Indeed, the defendants in the Colston trial themselves argued as an additional defence that they believed that “the people of Bristol” had consented to the damage of Colston’s statute. Similarly, earlier in November of this year, Extinction Rebellion protesters who had sprayed fake blood at the Treasury claimed that they too believed in the consent of the owners. The defendants were acquitted.
In the HSBC case, the defendants presented an argument along the same lines — in a way that lacked credibility. Eleanor Bujak argued that she honestly believed that the owners of HSBC would have consented, given that they “need a liveable planet”. Clare Farrell said that she believed that the “staff, shareholders and customers of this corporation want the economy to continue, they’re not in business to intentionally destroy capitalism”. The availability of the defence allowed the defendants to engage in political speechmaking. Ultimately, this was the only defence left to the jury by the judge. The defences of necessity and protection of property were both withdrawn from the jury.
The consent defence would arguably benefit from legislative intervention
The consent defence would arguably benefit from legislative intervention. Under the law as it currently stands, section 5(3) of the Criminal Damage Act states that belief in the consent of the owner need not be justified. In Jaggard v Dickinson, Mustill J quashed the conviction of a defendant who, in a state of drunkenness, had smashed the windows of a house. The defendant had mistakenly believed that the house belonged to a man with whom she was in a relationship, who would have consented to her treating the property as her own.
Thankfully, the defence does have one important restriction. In Blake v DPP, the appellant, a vicar, had written with marker pen on a pillar near the Houses of Parliament whilst protesting against the use of military force in Iraq and Kuwait. Mr Blake’s argument that he should have been entitled to rely on the lawful excuse defence since he honestly believed that God had consented to the criminal damage of his property was not successful.
Even so, section 5 still allows defendants to raise absurd defences, where there is no clear justification for their apparent belief, giving defendants the opportunity to make political speeches and discuss evidence that might otherwise be considered irrelevant. The defence appears to be almost always left to the jury. The HSBC case raises the questions of 1) whether the owners of HSBC would ever really cheer on damage to their property and 2) whether the defendants truly believed that to be the case in any event, even when taking into account their apparent subjective belief.
Since we are not given detailed reasons from juries for the verdicts they reach, and since deliberations are secret, it is necessary to tightly control the evidence and the law which they consider. In order to deal with the issues with the consent defence, Parliament should consider reforming the subjective element. In the offence of rape, for instance, the defendant must reasonably believe in consent; and whether that belief is reasonable is determined having regard to all the circumstances, including steps taken to ascertain consent by the defendant. Section 5 of the Criminal Damage Act could be amended along those lines in all cases, although it should be observed that this might result in harshness in some non-protest cases. Alternatively, the “circumstances” mentioned in section 5(2)(a) could be clarified as those which do not relate to the political motivations of the defendant. An amendment could also enable the judge to withdraw the defence of consent where the defendant did not take reasonable steps to obtain consent.
While it is necessary to deal with section 5 legislatively, acquittals in these cases may continue regardless. That is because juries can ignore the law and evidence and give perverse verdicts. Juries have been known to acquit defendants even when the evidence clearly points towards guilt. Famous examples include R v Randle and Pottle and R v Ponting. I have previously argued, contrary to popular assertions, that juries do not have a “right” to ignore the law. In fact, perverse verdicts have developed out of the secrecy of jury rooms, lack of coercion from judges and non-interference (on the most part) with their acquittals.
It is necessary to point out that such verdicts are made in defiance of the jurors’ oaths. Jurors are required to “faithfully try the defendant and give a true verdict according to the evidence”. As Lord Justice Auld said in his Review of the Criminal Courts of England and Wales:
I regard the ability of jurors to acquit, and it also follows, convict, in defiance of the law and in disregard of their oaths, as more than illogicality. It is a blatant affront to the legal process and the main purpose of the criminal justice system — the control of crime — of which they are so important a part.
Glanville Williams likewise said that, “A lawyer, if he is true to his calling, must have some reservations about any instance whereby jurymen gain applause by disregarding their oath to give a true verdict according to the evidence”.
If it becomes more of a widespread phenomenon that juries acquit in cases where the law and evidence points strongly towards guilt, it may be necessary to consider reform to the jury system. In the HSBC case, the defendants had caused significant damage to private property – private property which, as noted by Lord Burnett in the Colston judgment, is protected by the ECHR. The damage was caused violently, by the smashing of glass. The notion that justifiably criminalised conduct can be simply ignored by juries because of political sympathy is objectionable. Arbitrary acquittals should not be accepted as a fundamental part of our criminal justice system – the purpose of which is, after all, to control crime. The Blackstone line, that it is better for ten guilty persons to escape than that one innocent suffer, is not applicable in respect of cases where acquittals do not follow from evidential weakness.
Enjoying The Critic online? It's even better in print
Try five issues of Britain’s newest magazine for £10Subscribe