Do Just Stop Oil deserve to be in prison? There must be limits to protest

“Can you hear the future weeping? Our love must save the world.” So ended Morgan Trowland’s closing address to the jury, in the trial for Public Nuisance that followed his and Marcus Decker’s “Just Stop Oil” protest last year on the Dartford Bridge. The Ben Okri quote was a nice finish to a well-delivered speech. Even as the prosecutor, I felt the force of the sentiment.

It had been an unusual trial. In protest cases, it is not uncommon to find defendants who choose to go without an advocate, since those defending themselves are, quite rightly, given a little more latitude than lawyers. Usually, protesters’ evidence about their beliefs is kept short, for the sake of time and simplicity, or even proscribed altogether, when the limits of any “reasonable excuse” defence can easily be determined in advance. But the defendants here, with the agreement of all parties, were allowed to explain their motivations at considerable length. The jury heard nearly four hours of evidence about the science of climate change, its consequences, and government policy.

All of which turned out to be, strictly speaking, irrelevant. Because once the evidence had been heard, the court decided that, on all the facts of the case, the “reasonable excuse” defence did not allow for a protest at the top of this bridge.

The right to protest is an important one, protected first by our Common Law and then by the European Convention. But there must be limits, even where no violence is used and no damage caused. Those limits in the British courts, though, are surprisingly hard to discern.

At least part of the reason for the judge’s ruling was that the public has no general right to access the Dartford Bridge, much less to climb it. Indeed, it is a criminal offence even to walk onto it. For protests on other roads, a jury might, depending on circumstances such as how long the disruption lasts, be told that the question of reasonableness is up to them.

Nevertheless, the unrepresented defendant was not prevented from asking the jury to find that their actions were reasonable — and so I was not prevented from arguing that they were not.

Anyone facing conviction and imprisonment ought, surely, to be permitted to give reasons for their actions, even if those reasons do not amount to a legal justification. If you are caught with a knife, no court would seek to prevent you from telling the jury that you forgot it was in your pocket — despite the fact that the appeal courts have decided that forgetting is no defence. But should a Crown Court be expected to put aside several hours for evidence about climate change? There are 60,000 cases in the queue after all.

But attempts to shut down environmental discourse in court have not ended well. David Nixon, who in his trial ignored a judge’s direction not to refer to climate change, and then refused to apologise, was recently sentenced to eight weeks’ imprisonment. Unapologetic contempt of court must be punished, sometimes harshly, but the general view at the Bar is that the justice system was not the winner there. The case made the courts look harsher than they are.

Judges are in a difficult position, because the law is a mess. The main problem is how to interpret a “reasonable excuse” defence when a defendant’s rights to Freedom of Expression and Freedom of Assembly are engaged. The uncertainty became a problem, in 2018, in an appeal from a Magistrates Court trial about a protest at an arms fair. The District Judge had decided that the obstruction of a highway was reasonable, and therefore not criminal, because — in essence — the protest was peaceful, orderly, worthy, and short. Nothing hugely problematic about that.

But the Crown felt that the judge’s reasoning had gone awry, so appealed the acquittal. And in the course of agreeing with that complaint, the High Court introduced an idea that has complicated things ever since. When judges have to determine whether a law is compatible with the European Convention, they have to perform a “proportionality assessment”, and the High Court said that, in protest cases, a proportionality assessment could simply replace the question of reasonableness. The trouble is, proportionality assessments are very, very complex.

The case then went to the Supreme Court, which condoned the use of proportionality assessments. They also suggested — somewhat offhand and in passing, it seems to me — that this task could be carried out not only by magistrates but also by a jury. Even the most die-hard of activist lawyers see that move as, well, innovative. And many of the rest find it completely bananas. Juries cannot sensibly be asked to perform legal analyses that High Court judges might take days to decide. The result is that it has become very difficult for those attending a protest to gauge their level of exposure to criminal liability.

There are some, of course, who appear to think that there should be no limits on non-violent, yet disruptive, climate protests. A month ago, a few days before the Dartford bridge trial began, Jolyon Maugham KC and others signed and publicised a declaration entitled “LAWYERS ARE RESPONSIBLE”, in which they asserted, among other things, that they would “withhold their services in respect of action against climate protesters exercising their democratic right of peaceful protest”.

There are a number of problems with this approach. First of all, most of the signatories are solicitors, who unless they apply to join the Crown Prosecution Service are in no danger of being asked to prosecute anything. And none of the handful of barristers who signed, I am fairly sure, is on the CPS advocates list, so they too are quite safe. Moreover, although the declaration does not actually go so far as to say in terms that these cases ought not to be prosecuted by anyone, that is the clear implication of a declaration of “conscience” — that is, of what they believe to be the morally correct attitude.

Maugham, of course, punched it all up in the Guardian. “Sometimes the law is wrong”, he noted sagely. Well, yes. But by what mechanism should the enforcement of the law be changed? By Parliament, and the law being applied the same to everybody? Or by the whims of barristers’ consciences?

A solid causative link between “climate justice”, however you choose to define it, and stopping your fellow citizens from moving about has not yet fully revealed itself to me, even acknowledging the “press attention” argument. But I would have happily and vigorously defended the Dartford protesters, just as I defend people accused of much more unpleasant crimes.

The so-called “Cab Rank” rule, according to which barristers cannot turn down cases, should discourage the public from identifying lawyers with their clients. If you know that a barrister could have refused to act for an unpopular client, you are more likely to believe that he or she approves of their actions. But it seems that the administration of justice could benefit from raising awareness of this traditional, non-partisan approach to barristers’ work: Insulate Britain, for example, has threatened to prosecute me “in the years to come”.

This is an alarming development in activists’ attitude to the Rule of Law. And since climate protest is on the rise, with enormous Extinction Rebellion protests planned for this weekend, the administration of justice — the fair application of the current law to all citizens — must not be undermined.

Trowland and Decker have just been handed sentences much stiffer than climate protesters have been used to receiving. While this may well have some deterrent effect, the actions of Just Stop Oil and similar groups are not going to abate any time soon. Both protesters and the public need to know how the law will balance their respective rights, and in what circumstances. Climate change is an issue of great public concern, but the criminal courts are not the forum for litigating government policy from first principles.

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Adam King is a criminal barrister at QEB Hollis Whiteman.

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