Good news for the rule of law

A couple of years ago a group of anti-Israel activists ram-raided a Bristol factory operated by Elbit Systems, an Israeli-owned defence company. Staff were intimidated, machinery worth £1 million forcibly trashed and a policewoman badly injured when hit with a sledgehammer. The convictions for criminal damage and GBH obtained this week against four of the raiders can only be a cause for rejoicing. In a democracy, violent vandalism as a political weapon against those you disagree with is no more acceptable from the bourgeois hoodie-wearing Gemmas, Charlottes and Benjamins of 2026 that it was ninety years ago from close-cropped working-class youths togged up in black (or brown) shirts.

But there is a deeper issue. Convictions in cases like this are becoming increasingly difficult to secure. The activists’ tactic is well-tried. Opt for jury trial, then seek to put before the jury a justification based upon a supposed laudable motive — prevention of violence or social unrest, the protection of the planet, or whatever — and dare it to acquit. It’s a technique that has worked. Think the Colston statue defendants in 2020, or the climate activists who vandalised Stonehenge last year, both of whom smugly admitted what they had done but still persuaded sympathetic juries to clear them.

That is what the Elbit defendants tried in this case. But this time it did not work, in part because the courts took a tough line. In a previous trial where the jury had failed to agree, and also in this week’s trial, the judge involved firmly ordered their lawyers not to mention their motives or to hint to the jury that it might care to acquit whatever the law and the evidence against them. Indeed, we now also know that at the earlier trial it is alleged that the accused’s counsel ignored this order and now faces proceedings for contempt, the judgment on which is yet to be determined.

The reason we need to hold the line firmly in cases like this, as the courts did, is that a vital but often-misunderstood concept is at stake: the rule of law. Although one Elbit defendant complained that stopping her laying her worthy motives before the jury was itself a breach of that principle, this could not be further from the truth.

Admittedly the tendency today, notably from organisations like the Bingham Centre for the Rule of Law, is to align the concept suspiciously closely to human and social rights. But in its classical form as advanced in Albert Venn Dicey’s Law of the Constitution in 1885, this involved a far simpler idea: that in England we were ruled by the law and the law alone, and that everybody without exception was on principle bound to obey the law of the land.

There is a surprisingly strong argument for simply taking situations like the Elbit case or the Colston debacle out of the hands of juries altogether

Viewed in this way, it is not hard to see who the true critics of the rule of law are. It is the Elbit defendants and those who think like them, such as radical climate activists. The idea that their soi-disant purity of motive should let them ask juries to condone their breach of the rules about respecting other people’s property that the rest of us have to obey is the antithesis of the rule of law. Even more frightening is their idea that an organisation’s right to have its property defended by law should depend on a local jury’s views on how much it deserved protection and whether a defendant had acted justifiably in throwing it into a harbour or smashing it up.

There is a surprisingly strong argument for simply taking situations like the Elbit case or the Colston debacle out of the hands of juries altogether, and instead having any criminal proceedings decided by judges and magistrates: a body that would, one suspects, give pretty short shrift to pleas that one should escape punishment for trashing a factory because of the need to respect the ecosystem, Palestinian rights, or whatever. Unlike cases turning entirely on reasonableness, such as the extent of a woman’s right to use force against a would-be rapist or a householder against a burglar, where popular opinion matters, there is no particular need for lay involvement in decisions concerning whether a person has committed criminal damage or whether there is exceptionally a lawful excuse for it.

Indeed, the law of unintended consequences may come to the rescue here. The government already plans to restrict jury trial for many offences, including criminal damage. These plans are not perfect. But if the result of bringing them in is that state officials give equal protection to all property and treat everybody damaging it in the same way without fear or favour, then to this extent at least the government may find that it has actually struck a blow for the rule of law. Stranger things have happened in these strange times.