March 21, 2024 - 7:00am
You don’t have to smash things up to draw attention to your political cause. Hundreds of thousands marching against the war in Gaza in recent months, or against the ban on fox-hunting 20 years ago, have managed to raise much awareness without resorting to paint and hammers. But some protestors — perhaps those whose causes lack the numbers for media attention otherwise — find that criminal damage helps.
It helps draw attention to the protest, but it helps even more if the protesters are later acquitted by a jury. “Look,” they can say. “Even these randomly selected members of the public agree with us!”
The Court of Appeal’s clarification this week that protesters’ beliefs about climate change cannot be used to justify criminal damage was met with dismay from the activist community. Just Stop Oil responded by threatening revolution, while barrister-cum-protestor Paul Powlesland criticised the judiciary for “clinging to outdated concepts of causation”. But the change will likely have little impact on the activities of protestors, or even on their conviction rates.
Section 5(2)(a) of the Criminal Damage Act 1971 provides a defence JSO protesters sometimes use. It allows for defendants who believe that the person they thought was entitled to give consent would have consented, had they known of “the damage and its circumstances”. The provision is there to protect people such as Beverley Jaggard, who in 1978, after a good few drinks, returned to the house in which her friend had let her stay and, finding that the lock wouldn’t open, smashed a window to gain entry. She had got the wrong house of course, but she wasn’t held criminally liable — because she genuinely believed her friend would have condoned her actions.
Climate protestors have used this provision, with occasional success, by arguing that they genuinely believed that the owner of the bank, or whatever it might be, would have allowed the damage if only they understood the severity of the climate crisis and the purpose of the protest — these last things being, the protestors contend, part of “the circumstances” mentioned in section 5(2)(a).
This is obviously silly. A protestor cannot genuinely believe that the relevant CEO, even having received a days-long lecture from the most persuasive of the orange-vested pensioners, would have permitted them to take a hammer to their nice glass-fronted HQ.
But if it’s obviously silly, why have some judges left it up to the jury, rather than telling them to ignore it? Well, the Crown has to prove that the defence does not apply; so if there’s even a small chance that the jury will think a defendant’s claimed belief might have been genuine, it’s not crazy for a judge to leave that factual issue for them to decide. “Circumstances” is vague, and previous rulings about when a paper-thin defence can be withdrawn from a jury were inconsistent. The Court of Appeal has now clarified two things: “circumstances” includes the fact the protest was about climate change but no more detail than that, and a judge may withdraw a defence if no reasonable and properly directed jury could acquit on the basis of it.
So there will be less of this, but not none. For one thing, judges can still choose to leave the decision to the jury, when a defendant claims the relevant belief. But, more significantly, juries can still acquit in the face of the evidence. It’s a grey area — particularly on what a defendant is permitted to say to a jury about the supposed “right” to acquit — but a judge cannot order a conviction, and a defendant or his barrister will always be allowed to invite a jury to acquit.
That is, I believe, as it should be. The jury, and its power to acquit without giving reasons, is too important a bulwark against (future) state oppression to be tampered with — particularly for the sake of a handful of climate activists who are seldom punished harshly and for whom a conviction is, in many cases, a badge of honour.
Climate protestors derive what support they have by tapping into the widespread fear of climate change, popular feelings of doom more generally, and of course economic dissatisfaction. But they also benefit hugely from the extreme low status of anti-JSO sentiment. Do people really think that chucking paint around at the Chelsea Flower Show will benefit the climate in some roundabout way? Or do they just not want others to associate them with Nigel Farage?
“I think they have a point,” some say, without knowing of JSO’s opposition to carbon capture investment or the downsides of Net Zero. Ultimately, the best place to challenge climate protesters’ disruptive activities will be in the court of public opinion — and that campaign has a long way to go.
Join the discussion
Join like minded readers that support our journalism by becoming a paid subscriber
To join the discussion in the comments, become a paid subscriber.
Join like minded readers that support our journalism, read unlimited articles and enjoy other subscriber-only benefits.
SubscribeI read a post about JSO on another site (it might have been the Guardian) in which the poster said that they had always assumed that JSO was funded by the Tory Party or “Big Oil”, because the only thing that they had ever achieved was to get large numbers of the general population to hate the Green Left.
They’re just a bunch of self-righteous kids looking for a sense of meaning and belonging in their lives. Maybe they should look elsewhere, because their actions are just ruining their souls more than they already are.
“Well, the Crown has to prove that the defence does not apply; so if there’s even a small chance that the jury will think a defendant’s claimed belief might have been genuine, it’s not crazy for a judge to leave that factual issue for them to decide.”
But even this principle isn’t consistently applied in law generally: it has for years been impossible to argue, for instance, that the directors of a company can permit it to trade while insolvent just because they believed the company might trade out of debt. The relevent language in this part of the law is that the directors are liable in this case if they “knew, or ought to have concluded” that the company had no realistic prospect of success.
See the difference? You can’t get away with this sort of thing just because you can claim a personal conviction supported your actions: that conviction has to be something you can persuade others is reasonable. Similarly, in the case of climate protest vandalism, it is pretty clear that Section 5(2)(a) of the Criminal Damage Act 1971 could only be harnessed to a defence such as this with the collusion of the judiciary, otherwise car thieves and muggers would have been getting away with their crimes for years based upon a conviction that if only their victims had known the criminal’s kids were going hungry, they’d assent to the loss of their property. The defence is bullshit, and no competent judge should be taking it seriously.
I yearn for the days when fear of some possible future doom does not excuse criminal action in the here-and-now (although the Court of Appeal ruling about future fears being “too remote” to be classed as a “lawful excuse” is a good start).
I yearn for the days when there is no ‘hate crime’, only crime.
I yearn for the days when speech is not limited by the confected offence of activists.
Has the tide turned or am I being suckered by deft misdirection?
Too early to tell on the deft misdirection point. I am hopeful that a bit of reason may be coming in but skeptical!
The moral hazard of allowing some people to get away with smashing windows and throwing statues into canals because their cause is righteous is that everyone else who believes their own cause is righteous will be emboldened to commit criminal damage.
And of course, everyone believes their own cause is righteous.
“Section 5(2)(a) of the Criminal Damage Act 1971 provides a defence JSO protesters sometimes use.”
I’m reading the section about Beverly Jaggard in 1972 needing to be “protected”. She smashed in someone’s front window and got away with it. I’d never realised that being drunk could be a get out of jail free card.
This law needs to be repealed. Criminal damage is criminal damage regardless of what the perpetrator believes. Rule of law ultimately depends on the protection of private property and the objective application of the rules.
This is so blatantly wrong. It provides no protection or recourse at all for the actual victim of the crime who had their window smashed by the drunk.
It’s clearly also opened the door to all sorts of ridiculous excuses by the “activist community” (I almost feel that should be “activist industry”).
Serious countries don’t allow this sort of nonsense.
No, sorry – the law was both correctly applied and conceived in the case of Beverley Jaggard. It is not applicable to any situation in which it is used principally to exonerate criminals in circumstances where it is necessary to officially ignore the views of their victims.
Sorry, I’m just not buying that.
The reason she smashed the wrong house window is that she was drunk. She was still responsible for her behaviour whether drunk or not. What she “believed” is irrelevant if the reason for her poor judgement was self-inflicted (I assume she chose to get drunk). If she had some permanent mental condition, it might be arguable. But it seems that was not the case.
We’ve got to stop pretending that personal responsibility doesn’t matter or can be selectively applied. Once this goes, you don’t have a functioning legal system any more.
I haven’t checked the details, but imagine she must have been liable still in a civil case.
But the judgement doesn’t determine that she’s not responsible for her behaviour – exactly as your final line agrees. The law says merely that she was not specifically committing a criminal offence, not that she is wholly blameless and cannot be held liable under a civil claim for damages.
Some protester are getting away with it because of their privileged social class!
JSO don’t want to be judged by the public. If they did they would be preparing to run candidates at the GE.
They won’t do that because they’d be very publicly humiliated, showing that they are a tiny minority of very loud idiots who 99% of the voters loathe.