Protesters’ views on climate change provide no defence to criminal damage charges, lawyers for the attorney general Victoria Prentis KC MP will tell the Court of Appeal in an important test case scheduled for next month. Several protesters who have sprayed offices with paint or smashed plate-glass windows have been cleared in recent years after telling juries they believed that if property owners had known about the impact of climate change they would have consented to the damage. Appeal judges are being asked whether that should be a question for the jury.

Joshua rozenberg

Joshua Rozenberg

When a defendant is found not guilty in the Crown court, a point of law arising from the case may be referred to the Court of Appeal by government law officers. The acquittal remains unaffected. Criminal Procedure Rules say that ‘the court must not allow anyone to identify the defendant during the proceedings unless the defendant gives permission’.

In the case that Prentis has now referred to the Court of Appeal, the acquitted person – referred to as ‘C’ – has not agreed to be identified. For that reason, I cannot say very much about the case. What we do know is that protesters including C were alleged to have conspired to damage premises used by various organisations. The main defence was that these organisations would have consented to the damage if they had fully understood and engaged with C’s views on the urgency of the climate change emergency and steps needed to address it.

The Criminal Damage Act 1971 says that ‘a person who without lawful excuse destroys or damages any property belonging to another… shall be guilty of an offence’. You have a lawful excuse if you believe that the people you believe could consent to the damage – presumably, the property’s owners – would have agreed if ‘they had known of the destruction or damage and its circumstances’.

That last phrase is crucial. In written submissions prepared by Tom Little KC, Prentis argues that ‘the merits, urgency or importance of any matter about which a defendant may be protesting or the perceived need to draw attention to a cause or situation are not, in law, capable of being “circumstances” of the destruction or damage within the meaning of the statute’.

She also says there must be a direct nexus, or link, between the damage and the circumstances relied on. That’s because the statute refers to the damage and ‘its circumstances’.

It follows, the attorney argues, that the unnamed judge at C’s trial was wrong to have left the question of lawful excuse to the jury. Instead, the judge should have ruled in advance that ‘C’s views about the urgency of the climate change emergency, the need to draw attention to it and the steps that need to be taken to address it are all matters of opinion rather than fact, which are not capable of being “circumstances” – and this would be true irrespective of the facts on which those opinions are based’.

While defendants will always be able to contend that there are factual justifications for the opinions they may hold, the attorney adds, this does not turn the opinions themselves – in this case, what should be done in response to the climate change emergency – into ‘circumstances’.

Why was this defence included in the legislation at all? I had thought it was so that fire-fighters could lawfully break into a burning building or passers-by could rescue a dog locked in an overheated car. In fact, those circumstances are better covered by another exception in the legislation. This passage seems designed to protect those who might put down a badly injured animal or demolish a building with the owner’s consent.

But parliament surely cannot have intended the defence to operate in this way. As the attorney general says in her written submissions, ‘the more strongly a protester believes in the justice and importance of their cause, the more easily they may be able to assert a belief that others, if only they were properly aware of the cause, would agree to any actions they choose to commit in protest’.

That, she argues, would apply to ‘delusional and potentially objectionable fringe opinions’ just as it would to mainstream views, as long as the belief that others would consent was honestly held. ‘In effect, this inherently introduces an element of persuasion, as it allows a protester to act based on their presupposition that others would inevitably be persuaded to their cause if they were to fully engage with it.’

Under the legislation, C can instruct counsel at public expense. An advocate to the court has been appointed to assist the judges on the law.

Meanwhile, trials that should last a few days – since the facts are not in dispute – are taking weeks while these issues are laboriously re-argued. The appeal court’s ruling is anxiously awaited.