On Monday this week, the Court of Appeal handed down its judgment in Attorney General’s Reference Number One of 2024. The Lady Chief Justice found that the defence of belief that the owner would consent to property damage under section 5(2)(a) of the Criminal Damage Act 1971 would not apply in protest cases where the connection between the damage and the circumstances relied on was too remote. Additionally, according to the court, “the merits, urgency or importance of any matter about which the defendant may be protesting do not constitute the circumstances of the damage”. It should be noted that, pursuant to section 36(7) of the Criminal Justice Act 1972, the effect of the judgment is not to upset the verdict of the jury, but to clarify the law.

Last year, I wrote an article on the issue of the consent defence for climate protesters, arguing that the government would be wise to amend section 5 of the Criminal Damage Act. In the case that I discussed, the defendants had smashed the windows of HSBC headquarters in Canary Wharf, the cost of which was estimated at £50,000. The defendants were acquitted on 17 November 2023, after the consent defence had been left to the jury.

The facts in relation to this week’s Court of Appeal judgment are similar. The defendants were members of a climate protest group called Beyond Politics, now known as Burning Pink, that had splintered from Extinction Rebellion. Beyond Politics sought to introduce Citizens’ Assemblies as an alternative to parliamentary democracy. In order to attract attention to their cause, they threw pink paint and attached letters to the offices of Greenpeace, Amnesty International, Christian Aid and Friends of the Earth in July 2020. In the following month, they targeted the party headquarters of the Conservative Party, the Labour Party, the Liberal Democrats and the Green Party. A later plan to target trade union offices was abandoned. The total cost of the damage caused was approximately £36,577.73. The judge at trial did not allow the defendants to rely on convention rights under the European Convention on Human Rights (ECHR), or rely on the defences of necessity, duress of circumstances or defence of another. The protection of property defence could not apply either. The judge did, however, allow the defence of belief in consent of the owner to be left to the jury.

The consent defence has been cited as one of the few remaining defences available to protesters. In several judgments in the last few years, defendants have been limited in the defences they could leave to the jury. In Attorney General’s Reference Number One of 2022, for instance, the defendants had been acquitted after they damaged the statue of Edward Colston in Bristol. The Court of Appeal determined that a free-standing proportionality exercise (requiring that the prosecution should prove that a conviction would not be a disproportionate interference with the defendants’ right to freedom of expression under article 10 of the ECHR) should not have been left to the jury. Violent damage or significant damage would not attract the protection of the ECHR.

Before that, in DPP v Ditchfield, the High Court found that defence of property under section 5(2)(b) of the Criminal Damage Act was not available to a protester who had spray painted a council building. Ditchfield had aimed to attract attention to climate change and therefore protect “crops and the world”. Yet spray painting was not an act capable of protecting property, said the High Court, and the property being apparently protected was too remote to the conduct.

In 2018, in Sheffield City Council v Brooke, the defendant had received an injunction so that he would not disrupt the council’s controversial tree felling programme. The council alleged that he had breached his undertaking not to enter a safety zone. Brooke argued that he did so to protect another protester being forcibly removed from the area. After reviewing the relevant authorities, the High Court determined that for a defence of prevention of crime there must be an “imminent or immediate crime” or an “actual or inevitable danger”. If there is recourse to law enforcement agencies, there is no necessity to use force. Although in this case Brooke’s defence succeeded, the later case of Thacker applied the same principles to dismiss one ground of appeal. The appellants in Thacker were convicted of the offence of intentional disruption of services at an aerodrome after they prevented the removal or deportation of 60 individuals to West Africa. The Court of Appeal found that the judge at trial had correctly withdrawn three defences from the jury: namely, prevention of crime, duress of circumstances and necessity. In engaging in direct action, the appellants were seeking to take the law into their own hands, and could not rely on the three related defences. (The appeal did succeed, however, on the ground that the offence had not properly been made out by the appellants’ conduct).

Belief in consent, therefore, was a defence more easily available. Under section 5(2)(a) of the Criminal Damage Act:

… 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.

Under section 5(3) it is immaterial whether a belief is justified or not if it is honestly held. Accordingly, the judge at trial in the case behind this week’s Attorney General’s Reference concluded that, while the other defences raised could not be put before jury, the consent defence could be put because of its subjectivity. The defendant, whose name was anonymised to “C” for the purpose of the Reference, went on to give evidence that she genuinely believed that the occupiers of the premises where the damage took place would have consented had they known of the threat of climate change.

The reference first posed the question as to whether the “circumstances” in section 5(2)(a) may include the merits, urgency or importance of what is being protested; and second whether “circumstances” in the section can be interpreted to include a situation where there is no direct link between the damage and the “circumstances”.

The Lady Chief Justice went on to analyse the language of section 5. From a reading of the section, it was concluded that there must be a belief that the owner would have consented to the damage, and not merely that he might have consented to it; “its circumstances” in the section refers to the particular circumstances of the damage and not to the political or philosophical beliefs of the defendant; and there must be a connection between the damage and the circumstances.

In respect of the defendant in the case, the Lady Chief Justice found that her views about climate change lacked sufficient proximity to the damage. Since what was in issue was the consent of the owner, the subjective philosophical beliefs of the defendant could not amount to the circumstances of the damage. That evidence would be inadmissible. The Lady Chief Justice went on to observe that:

… it was not Parliament’s intention in enacting section 5(2)(a) to give protesters free rein to publicise their cause through the criminal courts. Section 5(2)(a) was not intended to afford a defence to protestors based on the merits, urgency or importance of their cause (nor the perceived need to draw attention to a cause or situation).

Since the Court of Appeal declined to say whether the defence should have been withdrawn, the tax barrister and social media personality Jolyon Maugham suggested that the defendants did not “lose badly”. However, the court merely recited the normal approach to withdrawing a defence. If no jury, properly directed, could find that the defence was made out, the defence should be withdrawn. Maugham’s suggestion that the “circumstances” element will still apply to several protest cases notwithstanding the judgment appears to be too optimistic, since a number of these prosecutions seem to have similar facts to C’s case. An owner’s general support for freedom of speech and climate justice does not mean that a defendant will be sure that the owner would consent to damage, especially costly damage. The effect of the judgment may not be to remove the defence from the consideration of juries in all protest cases, but it is difficult to imagine defendants often managing to build a sufficient evidential foundation for the defence, and even if it is put to the jury the directions will be more closely controlled.

Sandra Laville, the climate correspondent for the Guardian, said that this judgment “arguably marks another significant success for political interference with the operation of the law”, ignoring that the Attorney General referred the question on the basis that the law was being interpreted differently from court to court and that clarity as to the correct understanding of section 5 was needed for consistency, as well as for accuracy. Independent judges in the Court of Appeal itself engaged in legal reasoning to come to a reasonable conclusion as to the meaning of the consent defence and its limits.

Laville also cited the UN Special Rapporteur on Environmental Defenders’ report on the UK’s approach to protest, which strongly criticised recent legal developments. That letter did not provide any serious legal analysis. He argued that:

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 answer may be gleaned from an understanding of the role of the judge: to prevent irrelevant evidence reaching the jury so that deliberations can be focused on relevant facts applied to the law. This week’s judgment confirms this approach, since general views of defendants regarding philosophical or political beliefs are inadmissible.

If climate protesters … want to be civil disobedients … they may have to accept that convictions could easily follow

This pattern of controlling defences available to defendants should not be characterised as some insidious “systematic” and “anti-democratic” attack. This first misunderstands the role of trials. Defendants do not have a democratic right to present any argument they wish to juries. Trials are not venues for political stump speeches or pulpits for preachers. The law and the rules of evidence should be followed; and the role of the jury is to apply the law to the facts. Second, appeal courts are only responding to contested legal interpretations. For instance, using the consent defence in this protest context appears to be fairly new; and the use of article 10 in the Colston trial arose from a misapplication of Ziegler, which had only been decided in the previous year. Since protest has aggressively spread in recent years, defence barristers have attempted to use creative legal arguments in order to secure acquittals. This has resulted in inconsistent approaches between courts and, on occasion, unusual and incredible arguments have been left to juries. It is not improper that appeal courts have sought to give well-reasoned guidance following case law and the standard approach towards statutory interpretation so that juries are properly directed in the future.

It remains to be seen whether this week’s judgment will stop the flow of acquittals. Juries may decide to give perverse verdicts in any event. Alternatively, the removal of a route to acquittal may mean that juries will be less confident in acquitting. Even where the case in the defendants’ favour was singularly unconvincing, a jury might have felt that it was entitled to acquit given the availability of the defence and the broader directions. The judgment is therefore a welcome development. If climate protesters, hoping to attract attention to their cause, want to be civil disobedients by deliberately engaging in criminal conduct, they may have to accept that convictions could easily follow, instead of pretending that a lack of defences is an affront to justice.