In a landmark ruling this week, three Court of Appeal judges confirmed that climate activists accused of causing criminal damage cannot use what is often described as the “last line of defence” against prosecution by arguing that they honestly believe a property owner would have consented to their actions if fully aware of the “circumstances”.
The ruling follows several recent criminal damage cases in which trial juries have found activists from groups like Extinction Rebellion and Just Stop Oil not guilty after they made this ‘consent’ argument, presenting evidence to the court regarding the effects of climate change as the “circumstances” in which the destruction took place.
Under section 5(2)(a) of the Criminal Damage Act 1971, the defendant has a lawful excuse where:
… if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances.
The consent argument first came to widespread public attention when it was raised in the case of the Colston Four, a group of protesters who were acquitted of criminal damages charges in 2020 after they toppled a statue of slave trader Edward Colston into Bristol harbour. Two of the defendants claimed that they honestly believed that the statue was owned by the people of Bristol – not the council – and that had a group they described as “the people of Bristol” known of the circumstances, they would have consented to what was done. Outside the court, one of the protesters, Sage Willoughby, claimed the acquittal of him and the other three was a victory for “anybody who wants to be on the right side of history”.
Since then, this interpretation of the Criminal Damages Act – which effectively implies that victims of criminal damage are labouring under what, in the parlance of old-school Marxism, would be described as ‘false consciousness’ – has proved popular among radical eco-protesters.
In November 2023, Extinction Rebellion activists who had sprayed hundreds of litres of red dye at the Treasury causing £16,000 worth of damage, were cleared of criminal damage by a jury at Southwark Crown Court having used this defence. One of the defendants, Cathy Eastburn, claimed in her closing speech to the jury that the Treasury “would have consented if they’d known the full facts”.
In another high-profile case late last year, a separate group of nine Extinction Rebellion protesters were acquitted of criminal damage having used hammers and chisels to cause £500,000 worth of criminal damage to the windows at the headquarters of HSBC bank in London.
During the trial one of the defendants, Eleanor Bujak, argued that she honestly believed the owners of HSBC would have consented, given that they “need a liveable planet”. Another defendant, Extinction Rebellion co-founder Clare Farrell, said she believed that the “staff, shareholders and customers of this corporation want the economy to continue, they’re not in business to intentionally destroy capitalism”.
As Tony Dowson points out for the Critic, it’s the availability of the consent defence in its current, unarticulated form that has allowed defendants to raise absurd defences, engage in political speechmaking and discuss evidence that might otherwise be considered irrelevant.
Troublingly, the jury in the HSBC case seem to have been influenced by the activists’ courtroom politicking.
During the trial, members of the jury made a series of highly unusual requests, including for an explanation of the Paris Climate Agreement and information on what the British Government has done to address the climate crisis.
Before reaching its verdicts the jury also asked to see a copy of the oath they took when they were sworn in, presumably in an attempt to clarify whether “giving a true verdict according to the evidence” meant they had the ‘right’ to ignore the law and acquit according to their conscience.
Then, when the verdict was read out, the defendants waved jubilantly at the jury, some of whom appeared visibly emotional.
Following public outrage over these acquittals, the Attorney-General, Victoria Prentis KC, referred a separate case involving climate action group ‘Burning Pink’ to the Court of Appeal’s Criminal Division. Ms Prentis asked the court to “provide clarity” on whether “claims that protesters honestly believed organisations affected by their stunts would have consented to the damage – if they had known more about the impact of climate change – can be a defence in court”.
One of the defendants in the Burning Pink case – who was named in court as “C” – has previously been acquitted of conspiracy to damage property having thrown paint at the offices of Greenpeace, Amnesty International, Christian Aid, Friends of the Earth, as well as the Conservative, Labour, Lib Dem and Green parties, causing damage that cost more than £36,000 to repair. Giving evidence at her trial, C had said that “the people who we believe have the right to consent… would have consented had they been aware of the full circumstances at the time”. She went on to claim that if they were “emotionally engaged, they would have consented to a bit of pink paint being thrown”.
During the hearing, the court was led by Baroness Carr of Walton-on-the-Hill, who as lady chief justice is the most senior judge in England and Wales. She was joined on the bench by Lord Justice William Davis and Mr Justice Garnham.
The specific point of law the Court addressed was in relation to “what matters are capable, in law, of being the ‘circumstances’ of destruction or damage under section 5(2)(a) of the Criminal Damage Act 1971”.
In the court’s written judgment, Carr said that the possessive pronoun “its” in the relevant passage from section 5(2)(a) – i.e., “…or would have so consented to it if he or they had known of the destruction or damage and its circumstances.”– was “central” to answering this question, in that it “delimits” the meaning of the word “circumstances”.
“It is only the circumstances of the damage which are relevant,” Carr wrote. “The circumstances must relate to the destruction of, or damage to, the property. Thus, the relevant circumstances may include matters such as the time, place and the extent of the damage caused. These factors would be linked to the damage and directly relevant to the owner’s hypothetical decision as to consent. They do not include the political or philosophical beliefs of the person causing the damage.”
The ruling made two other points that clarify the scope of section 5(2)(a): first, that it was not parliament’s intention when enacting the Criminal Damage Act 1971 “to give protesters free rein to publicise their cause through the criminal courts”; second that section 5(2)(a) “was not intended to afford a defence to protesters based on the merits, urgency or importance of their cause, nor the perceived need to draw attention to a cause or a situation”.
The decision immediately drew criticism from campaign groups including Extinction Rebellion, with the group’s co-founder Clare Farrell suggesting the ruling would “criminalise” non-violent protesters.
In a write-up that did its best to conflate “criminal damage” with “legitimate protest”, the Guardian said the court’s decision “remove[s] what is possibly the final defence available to those who take to the streets, daub paint on buildings, or sit peacefully in the road, in an attempt to alert us all to the need for countries to take more urgent action to cut emissions, and limit global heating”.
Victoria Prentis welcomed the ruling, saying that “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 that it was essential that courts handled cases involving protesters “consistently”.
