UK Climate Trials
The UK’s climate trials present a complex matrix against which the personal, political, and spiritual dimensions of British culture are being tested.
“Once bitten twice shy”. The judge smiled confidently as he shifted in his seat. A pin drop silence descended in the cavernous courtroom as the implications of these words sank in. This was the 6th climate trial in a series presided over by Justice Silas Reid at the Inner London Crown Court.
In his mid-fifties Reid looms large, an imperial figure with his 17th century wig and long black robes. From the public gallery I had a clear view of the proceedings below. The scene reminded me of Harry Potter’s Hogwarts. And if the context had not been so serious, I would have found it amusing.
An animated dialogue was taking place between one of the defendants, an 81-year-old vicar, the Reverend Sue Parfitt, and the judge. The jury members were not present. The Reverend had proved herself on several occasions to be a formidable force of goodness, possessing a sharp mind. With quiet authority on taking her oath she made it clear from the start where she stood. “My allegiance lies with a higher power than this court”.
The conversation taking place below me resulted from the Reverend challenging Judge Reid’s controversial and, in her words, “draconian” rulings. Parfit was questioning why the judge had disallowed certain facts in this case; evidence that had been accepted in a similar trial. His response, “once bittern twice shy” was revealing in that the prior trial had resulted in an acquittal. The inference (not lost on anyone present) was that Reid did not want this verdict repeated.
The Reverend pushed her point further, “It would seem that you are attempting to engineer a guilty verdict.” Despite his remonstrations to the contrary, Reid was visibly taken aback by the candid nature of the Reverend’s claim.
The Rule of Law
I have always appreciated the societal stability created by the rule of law in this country. Rule of law is considered a key attribute of good governance. And although far from perfect as evidenced by egregious incidents of police bigotry regarding race, ethnicity, and gender; compared to the conditions of those fighting for basic human rights in other parts of the world where autocracies hold sway, the rule of law in Britain is a privilege none of us can afford to take for granted.
However, since my involvement in the climate movement, despite the illustrious heritage of the development of English law, concerns are emerging. For example, are the new policing and sentencing laws aimed specifically at climate protestors and being applied by British courts, instruments to silence dissent? Has the government become the handmaiden of vested interests, namely the powerful and lucrative fossil fuel industry?
Crime and Sentencing Bill
On May 9, 2023, I passed through the gates of the Inner London Crown Court. Having attended previous trials as a member of the public, this time, after two full body searches and my phone confiscated, I entered the court room as a defendant.
Along with three others I faced the criminal charge of Public Nuisance – an archaic law whose origins date back to the 12th century. Public Nuisance, as innocuous as it sounds, carries up to a ten-year prison sentence, an unlimited fine, or both.
This specific charge appears to have been deliberately resurrected to ‘deal with’ the increasingly public civil disobedience movement in Britain. A movement attracting widespread media coverage on the climate crisis and, more pointedly, the Tory government’s lack of substantive response to it.
Clearly embarrassed by the effectiveness of these campaigns vis a vis the sheer volume of media coverage (five weeks of front-page headlines, reports, and newsroom discussions), the Home Office began to push for increasingly draconian police powers to “get them off the streets”. In October 2021 the UK government had been preparing to host COP26, an international climate conference of world leaders and eminent scientists. The politicisation of policing laws was thus not surprising. However, the Met police force pushed back. Protest in 2021 was still a democratic right in the UK. But not for long.
In May 2022, the Home Office successfully pushed a new Police, Crime, and Sentencing Bill through Parliament, giving increased powers to the police and the courts to put protestors away for significant periods. Exactly a year later, a second bill – the Public Order Act – was passed, explicitly targeting climate protestors with a slew of new ‘bespoke’ charges. Human rights observers both in the UK and across the world expressed alarm.
As I entered the dock to take the oath, I flashed on what a bizarre scenario I was actually part of. Months of jury trials had seen hundreds of climate activists tried in courts all over the country. A vast misuse of public resources given the obvious lack of criminality of any of the defendants tried – students, small business owners, environmentalists, teachers, carpenters, engineers, doctors, agriculturists, professors, scientists, councillors, artists, architects, grandmothers, charity directors – a microcosm of British society.
Nevertheless many, including myself, have ended up spending time in prison, either on remand (in my case two weeks) or serving sentences ranging up to three years. Morgan Trowland and Marcus Decker, both engineers were sentenced to 3 years, and 2 years 7 months respectively for protesting above the Dartford Crossing, a major bridge just outside London. Substantial fines and court costs amounting to thousands of pounds are frequently handed down and ‘serial offenders’ tagged with GPS bracelets.
It is a profound (and tragic) irony that raising the alarm on the unprecedented existential crisis we face, and voicing dissent at the UK government’s breach of its international obligations adopted under the Paris Agreement in 2015, should result in the criminalisation of citizens whom Justice Silas Reid, himself, would come to describe as the “most moral” people he has ever met.
Stepping into the dock is a lonely experience. There is a sense of existential diminishment in being confronted with the full weight of the British Establishment. The spectre of unquestioned power whispers down the centuries – “how dare you!”
Eons of institutional formality – wigs, long black robes, elevated seats, dark wood panels, even the dank air – creates an ‘other worldly’ atmosphere. I quickly sensed a clubbish intimacy in the light-hearted banter and insider jokes exchanged between the judge and the crown prosecutor. And indeed, cheerful pithy remarks were occasionally directed towards those of us self-representing (ie without a lawyer). I found this slightly unnerving given the circumstances, especially since the judge’s stentorian demeanour was quick to resurface whenever he was challenged.
With its mostly black ushers, formalised seating, high ceilings, and draughty public gallery, the Inner London Crown Court is suffused with the perfume of the distinctly colonial legacy of hierarchical power.
Climate Change is Irrelevant
By the time my trial arrived, Judge Reid had come under serious heat from the press. Even the conservative Times newspaper had reported his unusually rigorous rulings and the backlash they were creating. Private Eye, the popular satirical current affairs journal known for lampooning public figures, followed suit.
Reid’s notoriety stemmed from his uniquely stringent court rulings; rulings I witnessed proliferate over the months of climate trials conducted under his aegis. ‘Weak’ links in the prosecution or perceived ‘strengths’ in the defence were effectively weeded out as the list of prohibitions grew. Pivotal to the judge’s trial management was the banning of any mention of the context or motives of the defendants’ actions.
In a similar vein, by disallowing common defence points used in protest trials Judge Reid effectively removed all legal arguments previously available to climate protestors. Arguments on which many trials had been won. This moratorium proved to be highly controversial not only amongst climate protestors but within the legal profession itself. Human rights lawyers on two occasions gathered outside the court to publicly protest the Judge’s stand.
According to Reid, the charge of Public Nuisance itself obviated customary defences. Furthermore, he declared that in his court he would not allow any mention of climate change or fuel poverty as being a justification for protest actions. This meant that the climate trials at the Inner London Crown Court would be judged purely on traffic data points and technical analyses related to disruption. Neither motive nor context according to Reid bore any “relevance” to these cases. In his vast Rulings on the Ambit of Evidence, a burgeoning key document of 57 rulings, the judge stated categorically:
“There is no need for the jury to understand why the defendants acted in way they did in order to determine whether they are guilty or not. Any evidence about Climate Change is irrelevant.”
Dissipation of Judicial Neutrality
As the trial unfolded, an alarming sense of the dissipation of judicial neutrality set in. Excessive curation of evidence favouring the prosecution and censorship of the defence became de rigueur.
For example, historical context illustrating civil disobedience as a mechanism for social transformation was prohibited by the judge. In his words, “Defendants may not give evidence about other protest movements by way of historical detail, or the efficacy of certain methods… If allowed to speak …this would be liable to raise in the jury’s minds that there could possibly be some legal justification for the defendant’s actions, which there is not”.
The judge’s position on this point was clear but the jury had no opportunity to make their own decision about whether the efficacy of other protest movements was relevant, or not.
Apart from his cumulative rulings, Judge Reid would frequently offer to read our prepared evidence, including our closing statements to ensure we didn’t ‘risk’ crossing his rulings. Most of us declined. But when he was graced by someone’s statement, it was returned with generous redactions. Following suit, the prosecutor would freely ink out any mention in our character references of “integrity of motivation.”
Rebellion in the Court
Many of Reid’s peers in the judiciary subtly distanced themselves from his position. But he remained intransigent in his interpretation of the letter of the law. Defendants who unapologetically challenged his rulings were sent to prison for contempt of court. David Nixon, 37, was the first to do so. When he refused to apologise on the grounds that his duty was to ‘tell the whole truth’, Reid sentenced him to eight weeks in prison.
Meanwhile other judges were making radically different decisions. According to Private Eye, British law is a “lottery” when it comes to climate protest. Citing a judge in the town of Horsham who acquitted four protestors charged with blocking a highway, the journal reported that the acquittal was on the grounds that they were exercising their “right to free speech and peaceful protest”.
What is going on?
Immersed for weeks in a world of such brazen inconsistencies made me reflect deeply on what is going on within the English judiciary; an institution long regarded as the epicentre of justice, and a template for constitutional law in other nations.
Is Justice Reid simply a bully? A rogue actor. Is he a product of his background, ‘case-hardened’ and unconsciously driven by Conservative agenda? Is he motivated by professional and/or political ambition? A willing instrument perhaps of the increasingly authoritarian government under which many agree we are witnessing the erosion of human rights.
Is this merely perverse justice or is there a deeper cultural phenomenon happening? One where we are seeing Enlightenment thinking, the compartmentalised, utilitarian, bureaucratic logic that pervades so much of our world, now playing out in the courts.
The legal profession is where justice is administered. Unlike other professions, Law cannot be reduced purely to technicalities. And if it is, what does this look like? It looks very like Justice Reid’s court. For months I witnessed a technical rules-based, highly curated application of the law where the element of morality was invalidated.
Judge Reid himself would frequently declare, “This is not a court based on morality, but rules of law”.
Bizarrely, however, the judge recognised (in his own words) “the impeccable moral character” of climate protestors while in the next breath sentencing them to prison terms and onerous fines.
If we take a step back, the judge’s behaviour is reflective of the madness of our time: the normalisation of the contradictions we live with on a daily basis where our moral intelligence is superseded by logic alone.
Colonialism and the Law
There is no lack of synchronicity in the fact that Enlightenment thinking emerged at the time of early modernity and colonialism. One could argue that the loss of moral intelligence was the price we ultimately paid for economic supremacy. This is a question I have thought a lot about. Did colonialism represent a decisive severance between our moral sensibility and our capacity for reason? No doubt the question is far more complex but our reluctance to face the darker side of our history begs the question.
The conceding of morality to utilitarianism has delivered a powerful legacy: a complex matrix of power and economics backed by the epistemic privilege the West assumed early in modernity. Free Market ideology was very effective in burying moral concerns over the expendability of human life as evidenced in slavery, the opium wars, colonialism itself. Today we can add neo-colonial structures and the destruction of the environment to this list. No doubt lingering consciences were soothed as modernity’s gifts emerged: human rights, secularism, scientific reasoning, medical knowledge, and the wider adoption of the rule of law.
Left Hemisphere Domination
There is another narrative for understanding the impact of Enlightenment thinking. This is explained in detail by the noted psychiatrist, professor and philosopher, Dr Iain McGilchrist in his epic book titled: The Matter with Things.
McGilchrist describes the distinction between the functions of left and right brain hemispheres and the need for their integration in order for us to make stable judgements. In The Matter with Things, he makes a pertinent observation vis a vis the law. “The right hemisphere tends to make judgements according to the intention of the doer (deontology), the left hemisphere by reference to the consequences of the deed (utilitarianism), and ‘normal’ judgements of morality require full “interhemispheric integration.”
Our legal system is permeated by Enlightenment rationalism and seemingly an overly left hemispheric influence. In McGilchrist’s words, “Reductionism is an inescapable consequence of a purely left hemisphere vision of the world…. it has a corrosive effect on higher values …encouraging a mechanistic view of the human being”. He goes on to affirm “the key role of the right hemisphere is making sure that a response is appropriate in context.“
Civil Disobedience and the Law
The legendary Hannah Arendt, 20th century political philosopher, argued in her book, Crises of the Republic, that civil disobedience has ‘paved the way for true changes and challenges in society, for reforms, freedoms, and alterations that without dissent and popular uprising, would not have had the capacity to happen’. She argued that “the law can indeed stabilise and legalise change once it has occurred, but the change itself is always the result of extra-legal action.”
As my own trial ground to a close, successive days of judicial curation, along with the categorical denial of the context and motive for our actions, ate away at my and my co-defendants’ souls.
Coming to the end of my closing statement to the court, I turned to the jury:
“The crown prosecutor paints the public as our “victims”. This could not be further from the truth. On the contrary, our actions were entirely driven by care for the public good. We have been prohibited by the rulings of this court to speak about the reasons for our protest. This court has deemed that motive and context are irrelevant in this trial. That the criminal offence of Public Nuisance is to be judged in a vacuum. But when context and motive are stripped from any trial, where is justice in the law? The climate crisis is a fact. It’s not the “personal belief” of protestors, as described by this court. Nor is our government’s inaction on the greatest crisis in human history irrelevant to public interest.”
The trial ended with a hung jury.
- Article 10 & 11 – the human right to freedom of speech and assembly under EU law
- Proportionality – where the legality of an action is determined dependent on the balance between the objective and the means and methods used, as well as the consequences of the action
- Necessity – a law broken to prevent a greater harm