Yesterday, the Lady Chief Justice, Lady Carr, delivered a judgment on protest law which may close a remarkable loophole which had been exploited by climate change protestors who engage in direct action to promote their cause.

Protestors who have damaged property with paint or smashed windows have been cleared in recent years after telling juries they ‘honestly believed’ that property owners would have consented to the damage if they had known about the impact of climate change.

Now, the Court of Appeal judgment should ensure that this defence is removed from many of those seeking to rely on their philosophical and political beliefs when engaging in destructive direct action.

The judgment resulted from an intervention by the Attorney General, Victoria Prentis. She referred points of law to the court under powers granted to her under the Criminal Justice Act 1972. Importantly, this does not affect previous not guilty verdicts, but enables the court to clarify the law in this area.

The facts of the case are straightforward. In July 2020, a climate change protestor (who cannot be named for legal reasons, but has been referred to by the court as ‘C’), along with a number of others, targeted the offices of a series of charities, political parties and trade unions. The protestors were part of a group called ‘Beyond Politics’, or ‘Burning Pink’, which grew out of Extinction Rebellion. The group seeks the replacement of the current political structure with a system of citizens’ assemblies.

These activists were alleged to have caused thousands of pounds worth of damage by throwing pink paint and, in one case, using a glass hammer to smash a window. The aim was to draw attention to the ‘climate change emergency’ and what they saw as ‘the culpable inaction’ of charities, politicians and NGOs.

At trial, C argued that she believed that the occupiers of the damaged premises 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.’ She argued that there had to be ‘shock impact’ in order that they ‘wake up.’

The trial judge put a series of directions to the jury which included the point that it is a lawful excuse to charges of criminal damage under the Criminal Damage Act 1971 if:

‘(1) at the time of the act (a defendant) believed

(2) that the person whom s/he believed to be entitled to consent to the damage

(3) would have consented to it if s/he had known of the damage and its circumstances.’

Before the Court of Appeal, lawyers for the government argued that the original legislation was designed to protect property and that some judges had interpreted the defence of lawful excuse too broadly.

The Court of Appeal noted that an obvious example of where the defence might properly be used is if a stranger discovered a child locked in a car on a hot day. They could break the window to rescue the child and later use the defence of lawful excuse.

Perhaps unsurprisingly, the Court of Appeal concluded that, when it enacted the 1971 Act, Parliament had required a direct link between the damage and the circumstances of the incident and that ‘it had not been its aim to give protesters free rein to publicise their cause through the criminal court’, nor to ‘afford a defence to protestors based on the merits, urgency or importance of their cause (nor the perceived need to draw attention to a cause or situation).’

This judgment is an important one and the Attorney General has welcomed it, arguing that it will ‘ensure consistency’ and give judges much needed clarity.

As the court noted, this type of activity has ‘become increasingly prominent in the context of the activities of climate change protesters.’ And the judgment may also apply to other direct action demonstrations: for example the increasingly intemperate protests about the war in Gaza.

The judgment has been criticised by some activists, who argue it will criminalise non-violent protest. Others might conclude that the actions of attention seeking protestors who decide to cause damage to property, rather than engage with political processes, should not be encouraged by spurious appeals to urgency or other special pleading.

While restrictions on peaceful protest should be as light touch as possible, direct action which leads to thousands of pounds in damage goes well beyond the type of disruption that the public should generally have to tolerate, however well-meaning the protestors.

We must hope that the Court of Appeal’s judgment finally resolves this argument, and that it gives trial judges the guidance they need from now on. The alternative is surely that Parliament will have to legislate to ensure that protestors are not indulged in their belief that they have a right to shock us all into action that they cannot justify through democratic means.