In 2020, a group targeted the premises of a number of organisations. At each premises, the group asked to hand in a letter and then proceeded to cause damage and to attach copies of the letters to the premises. The letters drew attention to the climate emergency and what they saw as the culpable inaction of the organisations targeted.

A defendant gave evidence at trial her trial for committing criminal damage. Her case was that she believed that the occupiers of the premises (which she and others agreed to damage) would have consented to the damage had they been aware that it was carried out to alert those responsible for the premises to the nature and extent of man-made climate change. Her evidence was that some members of staff in the various organisations whose premises were damaged “know that they are failing” and were critical of their response to climate change.

The defendant justification

The defendant said that “the people who we believe have the right to consent… would have consented had they been aware of the full circumstances at the time”. If they were “emotionally engaged, they would have consented to a bit of pink paint being thrown”.

After being acquitted the Attorney General asked the Court of Appeal to clarify the law in this area. The question for the Court of Appeal was whether it is proper to leave such defences to a jury and, more specifically, whether a jury could consider factors:

…’ including the merits, urgency or importance of any matter about which the defendant may be protesting by causing the destruction or damage, or the perceived need to draw attention to a cause or situation?’

In its ruling, the Court of Appeal has now shut down this line of defence, ruling that:

“Circumstances” in the phrase “the destruction or damage and its circumstances” do not include the merits, urgency or importance of the matter about which the defendant is protesting, nor the perceived need to draw attention to a cause or situation.

Protest group, Plan B, response

“Following a pattern of jury acquittals of environmental defenders and anti-genocide activists, which exposes the media fiction that the British government’s ‘crackdown on protest’ is in any way democratic, the Court of Appeal has today backed the Attorney General’s call to remove what was for many their last remaining line of legal defence. It has ruled that mass loss of life from climate breakdown and the government’s failure to act on the science are irrelevant to the circumstances of an action, for the purposes of the defence of consent to damage to property.”

It is unlikely that we have heard the last word on this heated topic, and the issue of jury nullification (inviting a jury to return a verdict according to its conscience) remains to be litigated appropriately.

We will consider the implications of this recent ruling and how defence strategies might have to adapt and evolve as a result of it.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. We have a number of solicitors who are passionate about these issues and would be happy to discuss any aspect of your case, please give us a call on 0208 692 2694 or use the contact us form below.