Climate protests and juries – defending criminal damage after the AG’s Reference on consent

27 Mar 2024

In this article pupil barrister Dharsha Jegatheeswaran analyses the recent Attorney General’s Reference (No.1 of 2023) on consent in criminal damage cases and what it means for protestors. 

Dharsha will be available for instruction beginning April 2024 in crime, housing and inquests.  

On 18 March 2024, the Criminal Court of Appeal handed down its judgment in the Attorney General’s Reference (No.1 of 2023) [2024] EWCA Crim 243 (“The AG’s Reference”) – a case which looked at the use of the defence of consent in criminal damage cases arising out of protests. The judgment curtails the availability of the defence to protestors but does not remove it entirely.

This article will explain the judgment in context and then consider possible strategies for those who defend protestors in criminal damage cases to continue to use the defence of consent.

I. What is consent and why was this reference brought?

The last few years have seen a crackdown on the rights to freedom of assembly and freedom of expression by the British government in response to climate protests. In April 2022, the government passed the Police Crime and Sentencing Act 2022. That Act gave the police and ministers broader powers to limit protests including by enabling broad definitions of public nuisance and serious disruption and increasing penalties for certain protest-related offences. In April 2023, the government passed into force the Public Order Act 2023, which among other things created new offences related to protesting, gave the police increased powers of stop and search, and enabled orders to pre-emptively ban individuals from participating in protests. Reflecting this concerning crackdown, in January 2024, following a visit to the UK, the UN Special Rapporteur on Environmental Defenders under the Aarhus Convention, Michel Forst, issued a special statement noting his “alarm” at the “severe crackdowns on environmental defenders.”

Alongside these legislative and policy attempts to restrict these fundamental freedoms and less widely covered by the media, the courts have also passed several judgments restricting defences available to protestors (for example: DPP v Cuciurean [2022] EWHC 736 Admin; Attorney General’s Reference (No.1 of 2022) [2022] EWCA Crim 1259; R v Thacker and ors [2021] EWCA Crim 97.).

As a result, protestors and their legal representatives have had to be quite creative legally to push back against this and defend the right to protest. As other defences were stripped back, greater attention was placed on the defence of consent contained within the Criminal Damage Act 1971 (“the 1971 Act”). Section 1(1) of the 1971 Act establishes that it is an offence to destroy or damage property or be reckless as to whether such property would be destroyed or damaged, where a person does not have a lawful excuse. Section 5(2)(a) sets out circumstances in which a person can be treated as having the lawful excuse of consent:

“if that the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances.”

In a number of trials of protestors in the last year, the defence of consent was left open. In some of those, the jury returned an acquittal. The Defendant (referred to as C) in the AG’s Reference was one such protestor.

C was a member of ‘Beyond Politics’ (now ‘Burning Pink’), a group whose aim is to replace existing governmental structures with citizens’ assemblies to address the climate emergency. In connection with direct action protests in the summer of 2020, C and her co-defendants were charged with conspiracy to damage property.

At trial C and her co-defendants advanced multiple defences, but at the conclusion of evidence, the Judge left only the defence of consent under section 5(2)(a) of the 1971 Act to the jury.

C was acquitted by the jury of conspiracy to damage property.

Juries do not give reasons for a verdict. We cannot know if they acquitted on the basis of consent or some other reason. However, in reaction to this acquittal and several other acquittals by juries of protestors charged with criminal damage where the defence of consent has been left open, the Attorney General, Victoria Prentiss, referred two questions of law to the Court of Appeal under section 36 of the Criminal Justice Act 1972:

1. What matters are capable, in law, of being the “circumstances” of destruction or damage under section 5(2)(a) of the Criminal Damage Act 1971? In particular,
   1. if the destruction or damage is an act of protest, are “circumstances” in the phrase “the destruction or damage and its circumstances” capable as a matter of law of 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?
   2. if there is no direct nexus between the destruction or damage and the matters on which the defence rely as “circumstances”, can those matters still be “circumstances” within the meaning of the phrase “the destruction or damage and its circumstances”?
2. Was the Judge right to rule:
   1. before the case was opened to the jury; and
   2. at the conclusion of the evidence that the defence should not be withdrawn from the jury?

II. What has the Court of Appeal decided?

a) Question 1 – ‘circumstances’

In answering the first question, the Court performed an exercise of statutory interpretation of section 5(2)(a). Before turning to ‘circumstances’ the Court established the following elements of the defence [¶40-42]:

1. “At the time of the act or acts alleged to constitute the offence” must be at the time of the offence and the “damage cannot be an instrument of persuasion.”
2. The Defendant’s belief must be genuine and that is a subjective test.
3. “Person or persons whom he believed to be entitled to consent…would have so consented” must be an honest certain belief on the part of the defendant that is made out on the evidence.

With the last element it appears the Court is solidifying a threshold which many lower courts have been implementing – that there must be some form of evidence to substantiate the Defendant’s belief that an owner would have consented to damage aside from the Defendant’s belief.

Turning to circumstances, the Court drew parallels with Hill and Hall (1989) 89 Cr App R 74, a case interpreting section 5(2)(b) [¶36-37, 46]. In that case, the appellants were convicted in two separate trials of attempting to damage the perimeter fence of a US Naval Facility in Pembrokeshire where they lived. They ran the defence of lawful excuse on the basis their actions were intended to protect their property by forcing the base to close which would mean that Russia would no longer have a reason to attack Pembrokeshire. The judge in both cases held the intended damage was “far too remote” from the end goal the appellants sought.

The Court agreed with the submissions of the Attorney General and the Advocate to the Court that in C’s case, the reason for the damage, a protest on climate change, did amount to a circumstance of the damage, but that any further explanation of this lacked sufficient proximity to the damage. However, the Court’s determination that evidence from C on the facts or effects of climate change would be inadmissible, turned on the facts of her case[¶47-48].

The Court provided the following conclusions to the first question posed [¶65]:

“i) “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.

ii) “Damage and its circumstances” means the damage and the circumstances of the damage, which, in protest cases, means the fact that the damage was caused as part of a protest (against a particular cause).”

b) Question 2 – Availability of the consent defence to the jury

The Court declined to answer the second question referred as it may have re-opened C’s acquittal which is prohibited under the Criminal Justice Act 1972. Instead, the Court considered the question of when it is legally appropriate to remove a defence from the jury [¶54].

The Court rejected the submission from C’s counsel relying on R v Asmeron [2013] EWCA Crim 435, that if the defence is based wholly on the Defendant’s state of mind, the defence cannot be withdrawn from the jury, irrespective of its plausibility [¶56-63]. The Court distinguished Asmeron and held that the principles to be applied were still those from Attorney General’s Reference (No 1 of 2022) [¶64]:

“A judge may withdraw a defence from a jury if no reasonable jury properly directed could reach a particular conclusion.”

However, the Court provided [¶64]:

“We emphasise that a judge must exercise considerable caution before taking that step. It is not for the judge to substitute his or her decision for that of the jury when deciding to withdraw the defence. The judge is only entitled to withdraw the defence from the jury where no reasonable jury, properly directed, could find the defence to be made out.”

 

III. What does this mean for criminal damage protest cases going forward and what strategies exist for defence counsel to continue to argue consent?

The judgment may not be helpful for protestors, but it also does not remove the availability of the defence of consent entirely.

On its face, the judgment appears to severely limit the type of evidence that could be given about the circumstances of the damage when running the defence of consent in protest cases. Nonetheless each case will turn on its facts. Where the underlying reasons for a protest are more closely connected to the nature of the damage, it may be that evidence about the facts underlying the protest will still be admissible as part of the circumstances of the damage. For example, where the damage is related to items directly responsible for the issue being protested about, there may be more of a nexus.

The other element the judgment reinforces is the need for evidence to substantiate the Defendant’s belief that the owners would have consented. This appears to contradict the clear statutory language in section 5(3) of the 1971 Act which states, “[f]or the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.” However, defence lawyers have already been contending with this in many courts. Some ideas for evidence to consider including for this purpose is if the Defendant had knowledge of any of the following:

• • Indications from part-owners. In some cases, looking behind the immediate tenant or property management firm of a property, part owners have been willing to give evidence they would have consented, and the Defendant has had some knowledge of that part-owner’s inclination prior to their actions.
  • If a business/corporation: company policies on human rights; social media posts of the company/owners/employees, etc.
  • Responses to previous protests/direct actions either by that same entity or similar entities from the same industry.

Finally, the judgment is at worst neutral and at best helpful in arguing against the ruling out of defences. The Court re-emphasises the caution judges must exercise when withdrawing defences from the jury.

Regardless of the room the judgment may leave for advancing the defence of consent, there is no denying it still forms part of a landscape of increasingly restricted rights to freedom of expression and freedom of assembly, and perhaps less obviously, the right to a fair trial. The AG’s Reference is yet another example where the government, unhappy with jury decisions, is seeking to curtail jury powers. This combined with the courts’ continuing restriction of what and how Defendants exercising their Article 10/11 rights can argue their cases, raises questions of a potential violation of Article 6 of the European Convention on Human Rights.

It may be that it is time for Strasbourg to weigh in, but in the meantime, this article aims to assist in ways that protestors can continue to try and put the defence of consent before juries as they exercise their fundamental freedoms.

Dharsha is grateful to Margo Munro Kerr and Hannah Webb for their input when writing this article.

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