There is no doubt that protesting is on the increase. Protesters are now constantly looking for novel ways of bringing attention to their cause.

Protesting is headlines news

There’s been several cases that have hit the headlines where protesters have caused criminal damage as a means of protest. Black Lives Matter activists toppled the statue of Edward Colston, the slave owner, during a protest in Bristol June 2020. They dramatically dragged the statue to the harbour and pushed it into the water. Just Stop Oil (JSO) activists entered the National Gallery and threw soup on Van Gogh’s flowers painting in October 2022. The same group also threw orange paint over a garden at the Chelsea flower show.

There have been various cases of damage to the factories of Elbit Systems, in the UK, an Israeli weapons company, by Palestine Action. They believe the company is making weapons that are being used against Palestinian civilians. And then there’s numerous incidents of activists damaging ULEZ cameras, in protest to the expansion of the London scheme.

Public opinion divided

There is no doubt that public opinion is divided in its support for direct and disruptive protest campaigns. Widely shared images of climate crisis protesters blocking traffic, getting pushed around and even assaulted by angry drivers, have not been uncommon. Others, however consider that a bit of disruption is entirely reasonable when you take into account the climate emergency faced.

The question as to what can constitute a legitimate act of protest is not only a legal one but undoubtedly a political one too. But it is the criminal courts that are tasked with grappling with the question of where the line is. What is a legitimate acts of protest? When does it become criminal behaviour for which protesters can be convicted and imprisoned.

Whenever a protester faces criminal charges they will argue it’s their rights under the European Court of Human Rights. should be taken into account, specifically freedom of expression (Article 10), and freedom of assembly and association (Article 11). Many protesters have secured acquittals applying these arguments.

What has happened to protestors in Court?

In July 2020, eco-protesters, Beyond Politics, threw pink paint over the headquarters of Amnesty International, Friends of the Earth, Greenpeace and other political buildings, in frustration that they weren’t doing more to halt the climate crisis (the subject of the article above). The protesters successfully argued that the owners of the buildings would have consented. This was on the basis of them understanding the circumstances in which it was caused.

In December 2021, three activists from Palestine Action were acquitted of criminal damage, at Newcastle-under-Lyme Magistrates’ Court. The case involved the activists throwing paint on the walls of the Elbit factory headquarters in Staffordshire. The protesters argued that they had a lawful excuse for committing the damage. This was on the basis that the factories make drones used by Israel to bombard Palestinian civilians in Gaza. The judge stated that the protest was short in duration, with limited disruption caused and no threat to public order. Therefore the crown prosecution had failed to prove that their conviction would be proportionate to their right to protest.

All four defendants who were charged with damaging the statue of Edward Colston were acquitted. At their trial in Bristol Crown Court they argued they had a lawful excuse for causing the damage. This was because they were preventing a crime, namely the public display of indecent matter and/or the display of a visible representation which is abusive, within the sight of a person likely to be caused distress by it. Therefore the owner of the statue (the people of Bristol) would have consented to the damage if they knew of the circumstances of the damage.

A turning point

It seems like the protesters have been too successful for the Attorney General (AG). After a spate of acquittals of protesters facing criminal charges due for their protest actions, moves by the AG have successfully restricted the defences available to them.

The latest case to hit the headlines is a Court of Appeal judgment in March 2024. This involved the Beyond Politics protesters and resulted in narrowing the circumstances in which a protester can rely on the defence that the owner would have consented to the criminal damage caused.

In this case the AG might have achieved a small victory over protesters. But with the current state of global politics, with climate catastrophe ever closer and the Genocide in Gaza, protests of this kind are only likely to increase. Protesters actions have also been seen to be successful. The shutting down of the Elbit factory in Oldham for good is a good example of this. Added to that protesters are acting from a place of deep held conviction and commitment to a cause. So the slightly enhanced risk of conviction for their actions is unlikely to be the deterrence the AG is hoping for.

Written by Sarah Wilson