Let juries judge disruptive protesters like Just Stop Oil on their integrity – expert view

The UK Court of Appeal recently ruled on an appeal brought by 16 environmental activists serving prison sentences for planning or participating in a series of disruptive non-violent protests.

The cases include the five-year term being served by Roger Hallam, co-founder of Extinction Rebellion and Just Stop Oil, and the terms of two years and 20 months handed down to Phoebe Plummer and Anna Holland respectively, for throwing soup over Van Gogh’s Sunflowers while the painting was on display at the National Gallery in London.

Some news reports emphasised the reduction of sentences for some of the defendants (Hallam’s term was reduced to four years, for example), but the court’s decision upheld most of the sentences. There were only minor sentence reductions where the court found the initial sentences to be “manifestly excessive”, while the appeals of ten activists were dismissed outright.

In Holland and Plummer’s case, the court rejected original trial judge Christopher Hehir’s insistence that throwing soup over a painting was violent (equivalent to assaulting a person, Hehir had argued). Yet the court still upheld the lengthy prison sentences Hehir handed down, maintaining that the soup action was “disproportionate or extreme”.

The defendants’ motives for such disproportionate actions – to raise awareness about climate change and pressure the UK government to issue no new licences for the exploration and production of fossil fuels – were not considered relevant by either Hehir or the Court of Appeal.

Does this amount to a fair and appropriate hearing? In an article published in the Oxford Journal of Legal Studies, we suggest that the cases of non-violent disruptive protesters should be governed by what we call “the integrity principle”. This would spur a radical rethink of how the courts approach the trials of such protesters.

Integrity in protest trials

The trials of protesters are different from most criminal trials. Just as legal philosopher Anthony Duff once argued, we consider that the purpose of all criminal trials is to “call the defendant to account”. Duff tells us that we can be held responsible as citizens, to the community, for our moral wrongs. A criminal trial is not just about deciding “did they do it”, but also about communicating what, as a society, is considered right and wrong. For that to happen, a trial must engage defendants in a discussion as to why they did what they did.

It is here where the trials of non-violent protesters should be different from “ordinary” criminal trials. There are two reasons. First, unlike in most criminal trials, defendants prosecuted for staging disruptive protest rarely dispute the facts of what they did. Instead, they seek to explain why they did it.

Second, they do so because their action is not intended for personal gain, but to improve the life of the community. Political philosophy tends to maintain that disobedient and disruptive actions can be morally justified if they are motivated by an attempt to uphold the fundamental rights of, or avoid harms caused to, others, or highlight injustices and the failures of political processes.

In other words, these activists are seeking to act as citizens, and give a public account of their action as justified and proportionate. In Duff’s reasoning, this sort of accountability must be central to a criminal trial. But this depends on the defendants’ ability to explain their motives to a jury, in ways that are consistent with their beliefs and values. In short, the trial should allow defendants to demonstrate to the jury they had acted with integrity.

If the trial is a site of moral communication that engages the sense of right and wrong of the community – and, like Duff, we argue it should be – then protest defendants should be able to offer a legally relevant account of their actions, and the jury should be able to decide whether they accept this account.

Yet, as we have previously written, the law in England and Wales has been reframed over the past five years to reduce the defences that activists are able to rely upon. What protest defendants can say in court is inconsistently policed by judges. But in all cases, even where defendants can explain their motivations, they cannot now do so as part of a legal defence. Instead, they must rely on juries deciding (in rare cases) with their conscience rather than legal direction. This breaches the integrity principle, because juries are not able to decide, in law, whether they accept the account of action that might otherwise be put to them by the defence.

Read more:
Just Stop Oil’s harsh sentences are the logical outcome of Britain’s authoritarian turn against protest

If the jury does decide to convict, we argue that the integrity principle must also apply to sentencing. Where they are found guilty, it is illogical that activists should be expected to express remorse for their actions. This would be to disavow their motives, moral consistency and public accountability. Rather than remorse, their the integrity of their intentions and the honesty of their explanation of them should be regarded as a mitigating factor.

Integrity and democracy

Disruptive protest directs our attention to the failure of the democratic process to properly address pressing social problems. For the courts to punish those who attempt to highlight this failure only exacerbates it. Crucially, it denies both the moral purpose of criminal law and the social function of juries. Yet this is exactly what is happening right now in British courts.

We can see in the Court of Appeal’s judgment how the courts are failing to follow the integrity principle. Not only did the court sideline the motivations of the defendants, holding that the harm caused was too serious to take them into account, but it also acted to endorse more severe and deterrent sentences.

If we reorganise the trials of activists to place their integrity at the heart of the process, enabling them to give a legally meaningful account of their action, the law would finally recognise that disruptive protest is not an irritant outside of the democratic process, but is integral to it.

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