Lawful Excuse on Trial
A number of my friends live in the U.S. state of Minnesota and as Christmas approached we got to discussing our plans during the holiday period.
Being British myself, I had to ask about the weather in that part of the world, knowing the likely answer. While Minnesota is generally beautiful and warm throughout the spring and summer, their winters are especially harsh. Snow is often several feet deep and temperatures plunge far below freezing.
This year the answer was quite different. In this deep mid-winter there was no snow. The temperature was above freezing and rain showers were instead washing over the famous twin cities.
I asked why this was the case and got a simple answer in return: climate change.
The climate crisis affects everyone, everywhere. Our own storms across the UK this Christmastime are testament to that fact.
As 2023 turns to 2024, this will not change and, due to the failures of world governments, will instead get worse.
This also means that there will be more climate protests as a greater number of people react to the climate emergency. Those protests will present new and greater challenges to the law as a balance is struck between the right to protest and the need to protect businesses from damage to their property.
Just last month, a group of nine climate protesters were cleared by a jury of causing around half a million pounds worth of damage to a HSBC building. Their defence was lawful excuse which is covered in section 5 of the Criminal Damage Act 1971. In particular section 5(2)(a) tells us that a person will have a lawful excuse:
“if at the time of the act or acts alleged to constitute the offence [the defendant] believed that the person or persons whom [the defendant] 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 [the victim] had known of the destruction or damage and its circumstances.”
In other words, the members of Extinction Rebellion were cleared because they honestly believed that the bank would have consented to the damage if HSBC knew more about the true impact of climate change.
Unsurprisingly the government is not happy about this state of the law and so now the Attorney General has asked the Criminal Division of the Court of Appeal to provide clarification on the law in this area. She said:
“I have made this reference as it is important that the law is clear and fairly applied. I look forward to the Court of Appeal considering this issue, and would like to emphasise that regardless of the outcome of this reference, it cannot affect those who have been acquitted through the usual trial process.”
It is possible that the Court of Appeal will not permit this defence to be successful in future cases involving protests or, at the very least, it could limit the reach of this defence.
If it does so then that could secure more convictions but it is by no means guaranteed. The instructions that judges give juries will change but in high profile cases it will not necessarily stop members of a jury voting with their conscience.
As wild weather continues, there are also more storms brewing in the courts.
I hope you are all having a wonderful Christmas if you celebrate and get time to have a rest. The podcast continues even at this time of year with a short episode on tax law. Remember that if, during this season of giving, you are able to support my work then a subscription to this newsletter is the most effective way to contribute. Plus you get more content from me!
Episode link: https://uklawweekly.com/2023-uksc-44/
Merry Christmas!
Marcus