The chaotic scenes inside and outside court at the trial of five people accused of conspiring to block traffic on the M25 in 2022 have highlighted restrictions placed on defendants in a number of climate protest trials that people are seeking to challenge, but risk falling foul of the law as they seek to do so. Here the Guardian explains the basis of the restrictions and why they are so contentious.
What restrictions were placed on the defence case in the M25 trial?
The judge, Christopher Hehir, placed limits on evidence the defendants could bring on the impacts of climate breakdown, and why such evidence justified the types of acts of which they were accused. His ruling has similarities to that made by Judge Silas Reid in a series of climate protest cases heard at inner London crown court last year in which Reid said climate change could not be mentioned, although in the M25 case Hehir said the defendants could speak about their political or philosophical beliefs on the issue, to give some context to their actions.
On what basis are such restrictions imposed?
Judges restrict both sides in court to evidence deemed relevant to the case. In many criminal cases, what is relevant is uncontroversial, but in protest cases it has become a source of fierce debate. Judges have some discretion in deciding what is relevant and look to the existing law. In recent years the defences available to protesters in criminal cases have been reduced, leading some judges to not only disallow those defences but also limit mention of the defendants’ motivations.
While no judge will allow anyone giving evidence carte blanche in terms of what they can say and how long they can say it for – which would be a recipe for anarchy – Reid took the most extreme approach. Other judges have adopted more of a compromise, by, for example, restricting the amount of time a defendant can spend talking about their motivation.
Why are some defendants ignoring judges’ rulings and what consequences could they face?
Climate protesters believe that by preventing them explaining their motivations in full – namely, the existential threat to the planet – judges are preventing jurors from being given the full picture and from making an informed decision on whether to convict or acquit. The campaign group Defend Our Juries says: “Judges in UK courtrooms are denying both defendants and jurors their rights by restricting what defendants can say in their trials and by limiting what jurors are allowed to hear.”
Climate protesters have previously been jailed for contempt of court for mentioning the climate crisis as motivation for their actions when expressly forbidden to do so by the judge. At least three of the defendants in the M25 case have been arrested on suspicion of contempt of court.
How can it be contempt of court to talk about climate change?
Contempt of court, which has existed since at least the 13th century in England, is intended to protect the right to a fair trial and prevent a case being unfairly influenced. While climate protesters explaining their motivations may feel they are tipping the scales in favour of a fair trial, how a fair trial is achieved and what defences and evidence are relevant and admissible is ultimately for the judge to decide. Disobeying their ruling risks contempt, even if it is inarguable scientific evidence on the climate crisis.
Why have people outside the courtroom been arrested for contempt of court?
Eleven people were arrested for holding placards with messages including “Jurors deserve to hear the whole truth” – an apparent reference to the restrictions placed on defendants – and “Jurors have an absolute right to acquit a defendant according to their conscience”. The Met police said the judge determined that their placards “could be interpreted as influencing a jury”. The protesters were bailed on condition they did not come within the vicinity of Southwark crown court until a contempt proceedings hearing on 27 September.
Can it be contempt of court to hold a banner telling jurors of their absolute right to acquit?
The law on contempt of court seeks to ensure that jurors decide cases solely on the evidence presented at trial, as controlled by the judge, and to that end nothing on the merits of either side’s case beyond what is heard in court must be published or communicated to them. Members of the jury must be free to carry out their duties without interference or outside influence.
The arrest of the 11 people outside the M25 trial follows that of Trudi Warner, who, in March last year, on the first day of a trial of members of Insulate Britain, stood outside inner London crown court holding a placard that read: “Jurors, you have an absolute right to acquit a defendant according to your conscience.” This is a principle enshrined on a plaque in the Old Bailey, but which counsel cannot invite a jury to apply nor inform them of.
The solicitor general attempted to bring contempt proceedings against Warner, but Mr Justice Saini refused, sitting at the high court, and dismissed the claim, accusing government lawyers of “mischaracterising” the evidence when they said Warner had acted in an intimidating and abusive manner. Saini also said Warner “accurately informed potential prospective jurors about one of their legal powers. She did not comment on the merits of the case or make an imputation of the defendants’ innocence.”
However, the solicitor general is appealing against the decision and, regardless of the outcome of that appeal, it is possible that with different messages on the placards – for example, ones linked to a particular trial and not limited to the right to acquit – and at a different stage of a trial, a judge could take a different view.
