Climate activists in England and Wales lose ‘consent’ defence

Climate activists prosecuted in England and Wales for criminal damage have lost the right to use an important defence that has led to a series of acquittals in such cases, following a landmark ruling on Monday from the Court of Appeal.

In the latest legal setback for campaign groups such as Just Stop Oil, judges led by Baroness Sue Carr, the Lady Chief Justice, said evidence presented by defendants about the effects of climate change would be “inadmissible” in future cases.

Juries in several criminal damage cases have found activists not guilty after they argued that they honestly believed the property owner would have given their consent to the action if only they truly understood what was being protested about, such as the effects of climate change.

A string of acquittals prompted the UK government to apply to the Court of Appeal for a review of the use of the tactic, known as the “consent” defence. Campaigners had described it as “the last remaining line of legal defence” for environmental activists who were charged.

The Court of Appeal heard the case last month, and found on Monday that “the political or philosophical beliefs” or the “wider motivations” of the defendant were “too remote” from the damage for the defence to be used.

In a summary of the judgment, Carr — the head of the judiciary in England and Wales — alongside two other judges wrote: “Evidence from the defendant about the facts of or effects of climate change would be inadmissible.”

The legal challenge was brought by attorney-general Victoria Prentis KC as part of a broader government effort to deter disruptive protest at a time of rising civil disobedience over the environment. Ministers have claimed action is needed to prevent “violent and dangerous” behaviour.

Activists and their lawyers have become increasingly concerned by a twin legislative and a judicial clampdown on the right to protest. A series of government reforms include strengthening police powers to stop and search people.

Campaign group Defend Our Juries said in response to the ruling that the law was being used “to silence and repress those taking action to confront the extreme danger from climate breakdown”.

“When will the legal profession and the judiciary wake up to what’s happening?” it added.

Prentis said: “Climate change is an important issue and while the right to protest must be protected, it does not give a right to cause serious criminal damage no matter how strongly held a belief is.”

She added: “We welcome the court’s ruling which will ensure consistency and give judges much needed clarity in this important area of law.”

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