Four Insulate Britain activists recently stood trial at Inner London crown court on a public nuisance charge for blocking a busy London junction in October 2021. Like Just Stop Oil, Insulate Britain is waging a civil disobedience campaign to force the government to implement policies to tackle climate change and fuel poverty – namely, suspending new licenses for fossil fuel drilling and renovating homes to help people use less energy.
But this trial was unusual. One of the defendants, David Nixon, ignored the judge’s instruction not to explain the reasons for his actions to the jury. The trial judge sentenced him to eight weeks in prison for contempt of court.
Courts in England and Wales are taking a more active role in determining the extent of the right to protest, and some recent verdicts appeared to vindicate this right in law.
These included the case of the Colston 4, acquitted by a jury of causing criminal damage to a statue of slave-trader Edward Colston in Bristol and the Stansted 15, whose conviction on terrorism-related charges for blocking a Home Office deportation flight was overturned on appeal.
The overall trend is rather different, however, and much more worrying.
Higher courts are restricting the defences available to protesters on trial and the Crown Prosecution Service (CPS) is deciding which charges to bring in order to exploit this restriction. Judges, meanwhile, are more forcefully managing trials. The outcome is that defendants are increasingly unable to explain to juries not just what they did, but why they did it.
Necessity and lawful excuse
The court of appeal overturned the Stansted 15’s conviction but ruled that “necessity” defences be removed from future protest cases. These allow defendants to argue that they acted to stop a greater crime, or to save someone from harm, enabling them to explain their motives to juries.
In the Stansted case, the trial judge had ruled that the jury should not consider this defence. The court of appeal agreed and confirmed the principle, in what we described as “a hollow victory” for protest rights.
In another case (R v Ziegler), the supreme court upheld a magistrates’ court ruling that convicting defendants for blocking the road outside an arms fair in east London would be an unjustified restriction of their article 10 and 11 rights to freedom of expression and freedom of assembly under the European Convention of Human Rights.
Unlike the Stansted 15, the defendants in this case had been prosecuted under the Highways Act 1980, which lets them make a “lawful excuse” argument. Lawful excuse, much like necessity, allows defendants to claim that they acted reasonably in the circumstances, placing their actions in a wider context.
The supreme court’s decision initially led to a number of other verdicts where protesters were acquitted for obstructing a highway. Defence teams assumed that Ziegler could be applied to other offences with explicit lawful or reasonable excuse defences, such as criminal damage.
In the Colston 4 trial, one of the legal arguments made in court was that even had the jury found the defendants guilty of causing criminal damage to Colston’s statue, it would have been disproportionate to convict them of the offence given the importance of freedom of expression.
Shutting down Ziegler
The higher courts have since acted swiftly to shut down this argument. The court of appeal ruled in 2022 that the trial judge was wrong to accept Ziegler might apply in the Colston case.
The high court ruled similarly for aggravated trespass by HS2 protesters in the March case of R v Cuciurean. And the supreme court followed suit when confirming the legality of no-protest buffer zones around abortion clinics in Northern Ireland in December.
As a result, whether defendants in protest cases can explain their actions to a jury depends upon the offence they are charged with. Wider motives can only be raised where lawful excuse is explicitly provided for in the law and, even then, for only a narrow range of offences due to the limited interpretation of Ziegler.
It’s perhaps no surprise then that the CPS has brought a raft of public nuisance rather than highway obstruction charges against Insulate Britain protesters. Unlike obstructing a highway, public nuisance does not require a court to balance the impact of the protest against the defendant’s article 10 and 11 rights.
But if this explains the limited range of defences available to protesters, it does not explain why Nixon was imprisoned. That requires an understanding of the changing role of judges in England and Wales.
Recent legal reforms mean judges are increasingly concerned with narrowing the range of issues open to legal dispute in order to expedite cases. If a judge rules that no defence exists in law to a given charge, they can also direct that no related evidence can be called by the defence.
The trial judge no longer stands above the case, but manages it. Nixon’s contempt conviction is a flexing of this judicial muscle.
What are trials for?
In Nixon’s case, conviction for contempt of court seems particularly disproportionate – penalties for breaches of case management orders are not regularly enforced.
But beyond the question of what penalty should be applied for ignoring trial directions, there lie more fundamental ones about the operation of the criminal justice process.
Trials determine guilt or innocence, but they also signal to the public about matters of collective importance and moral value.
The legal philosopher Antony Duff suggests that criminal cases are a means of holding fellow citizens to account for their behaviour. A trial fails in this regard if it doesn’t let defendants account for their behaviour in ways that are meaningful to them.
Juries continue to acquit defendants in similar protest cases despite the framing of the law and the attempts of judges to manage trials. There is a long tradition in the UK and US of juries acting as a check on state abuse, allowing an acquittal in the face of the law if a conviction would be morally inappropriate.
But if jurors cannot hear the claims of defendants, we may ask how they are supposed to assess whether a given prosecution is appropriate, or if the actions of the defendants have significant moral or community value. Cases such as Nixon’s should invite us to consider what juries are for, and what upholding freedom of expression means.
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