Can the end justify the means?
Attorney general says protestors’ views are no defence to criminal damage
I reported here a month ago that the Court of Appeal is to rule on whether protestors in England and Wales have a defence to charges of criminal damage if they honestly believe that organisations whose property they deface or destroy would have given their consent.
The appeal court will be able to provide guidance for judges in future trials because the attorney general, Victoria Prentis KC MP, has asked it to consider a point of law arising from a case in which a defendant was acquitted.
I have now seen the attorney’s written submissions, drafted by Tom Little KC. In summary, she argues that that protestors’ views on climate change provide no defence.
A hearing is expected in just over a month’s time. It’s not known whether Baroness Carr, the lady chief justice, will preside over what’s regarded as an important test case.
Although the appeal judges will look in detail at the facts of the case that Prentis has referred to the court, all acquittals will remain unaffected. For that reason, rules of court prevent the acquitted person from being identified unless that individual gives permission.
You might have expected that to happen in a case such as this. But it has not — at least, not yet — and so the public version of the reference has been redacted to remove identifying information.
What are the attorney’s arguments? They have not previously been reported. But you can read a detailed summary in my latest column for the Law Society’s Gazette.
Another excellent column. You inadvertently raise an interesting question of etiquette in it. You refer to Baroness Carr, as I have seen other people do. Obviously that is true, but we didn't refer to Baron Burnett or Baron Thomas. I presume it's because the challenge with 'Lady' is that it also means the spouse of a knight or peer. I stress I do not mean this as a criticism in any way but, as you know, I am intrigued as to why we hold onto the ancient titles. I can't help wonder that if all the judges were just called 'judge' or 'justice', with the LCJ being 'chief justice' that we wouldn't have this problem, because she would just be the "the Chief Justice" or "Chief Justice Carr".
In terms of the substance of your column, I agree with your reasoning. Parliament cannot possibly have intended legal excuse to mean that people would permit damage if they truly understood the profound consequences of a scenario (in this case, that the owners of buildings would agree to the damage if they realised that it was calling attention to a global climate emergency). It was always an unwieldly defence and it would have been better to have had 'reasonable excuse' instead of 'lawful excuse' linked to this concept of implied and express consent. It is highly unlikely that a jury, properly directed, would consider the types of criminal damage that have occurred would have constituted a reasonable excuse. Although, of course, the right of a jury to unreasonably acquit (which is tangentially being discussed in the contempt of case cases) is also somewhat controversial! Or, not have any defence on the face of it, and simply allow people to rely on necessity.