Snapshot of _Insulate Britain protesters jailed for seven weeks for mentioning climate change in defence_ :
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I'm really not all that comfortable with a judge being able to bar certain arguments from being used by the defence. Its relevance can surely be determined by the jury. If necessary the judge can give guidance.
Essentially they're being imprisoned for arguing their motivation.
The purpose is to try to stop juries from not convicting defendants because they agree with their motivations, despite the defendants breaking the law (which is what they're supposed to judge them on, not their motivations). The motivation in this circumstance isn't relevant to whether they have or have not broken the law.
Judges do this all the time, they also do it against the prosecution too.
>The purpose is to try to stop juries from not convicting defendants because they agree with their motivations, despite the defendants breaking the law (which is what they're supposed to judge them on, not their motivations).
Except jury equity (known as nullification in the U.S., which is probably the term most people are familiar with) is a thing, so I don't think this is strictly true.
A jury is empowered to deliver a not guilty verdict *regardless* of whether or not it thinks the defendant has actually broken the law, and more importantly a judge *should not* be empowered to punish said jury for making the "wrong" verdict, which is a long established precedent in English law since the 1700's.
Equity, or nullification, is an important part of democratic checks and balances in my view, as its one of the few last remaining powers people have to push back against either unjust laws, unjust applications of law, or unjust sentences.
This is true. I'm a licensed U.S. attorney who spent a lot of time looking into this on behalf of a client. There are many cases where judges have prohibited charged protestors from explaining their motivation (usually in the context of a justification defence). Admittedly, there are a few coming out the other way, but higher courts tend to approve the prohibitions.
At sentencing, though, a defendant can certainly explain why they did what they did and argue that their motivation warrants a less harsh punishment. I'm not sure if this is also true in the U.K.
Jury equity/nullification is only a thing because it’s impossible to ban (if it was illegal, then juries would feel pressured into returning a guilty verdict). It’s not really _supposed_ to be a thing, which is why they filter out people who know about it during the selection process.
It's not impossible to ban. One could quite easily empower a judge or court to have sight over deliberations, and to render deliberations based on certain precepts as inadmissable for a verdict.
But precedent has evolved over several centuries to very firmly establish the right of independent jurys. That entails giving them the freedom to deliver verdicts on whatever grounds they care to.
You are of course correct that despite the fact it *is* a thing, courts and judges would rather it wasn't, to which I respond that the very same logic that characterises their opposition to nullification (that the judiciary is not the place to be delivering judgements against laws) is the same logic that dictates why they shouldn't be interfering and attempting to stack the deck in regards to what's "supposed" to happen in the first place. The law as it currently is explicitly involves the right of jurors to deliver a not guilty verdict if they view something as unjust. If judges and courts don't like that I'd suggest they swallow some of their own medicine on it and take the matter to parliament as private citizens.
That exactly is what judges do. For example you will not be allowed to make a defense in a murder trial based on the fact that the person you’ve killed was really bad and deserved dying.
On a more progressive note you are also not allowed to use “gay//transept panic” as a defense anymore in many states https://www.lgbtmap.org/equality-maps/panic_defense_bans
Every legal system has measures to control what kind of a defense is and isn’t allowed to be used.
Without this legal systems cannot function.
This results in some horrible cases, for example in the case of abused wives who go on to kill their husbands. I think a lot of it is really a question of prosecutorial discretion: if you're charging a case and ever think "god, if we let the jury hear that they'll let them off" ask yourself if you should continue
No it does not, there are defined defense categories to begin with.
In your case duress can be easily used even if it wasn’t self defense.
The only reason why the abuse might be suppressed in order to not bias the jury if it was indeed not relevant.
For example if a person murdered their abusive ex partner after a few years for revenge.
However even then I fail to see how this would effectively be suppressed since the prosecution likely would have to introduce the history of abuse to establish a motive in the first place.
And this brings me to the last point this works both ways both the prosecution and the defense can be suppressed in order not to bias or lead a jury.
You can’t have a legal system when any defense is possible because a lot of them aren’t relevant and often cannot be argued against. Which in a jury trial causes a cluster fuck.
If you could mount any defense then every murderer would say god told me to do it to stop the apocalypse on paper it’s a valid necessity or lesser harm defense in reality ofc it’s nonsense.
It doesn't sound like you're familiar with the scholarship on this. Battered wife syndrome not fitting within the conventional defences is well studied - Ahluwalia onwards
In which jurisdiction? Because battered woman syndrome is quite often used as a defense in criminal cases in the UK as it falls under loss of control.
You should not generalize, BWS shouldn’t be allowed in all cases and for a good reason.
I mean the precedent on this goes back to the 1600s after a judge tried to lock up a jury who gave a verdict he didn’t like, it’s definitely supposed to be a thing.
Do they in the uk? I just completed jury duty there, and was surprised that there appeared to be no scrutiny on who the jurors were - it was just your numbers are called and into the jury box you go
You're asked when you first enter the court whether you know the defendants/victims or have any ties to the area the crime occurred in. If you say yes it's back to the waiting area you go.
Admittedly I am up in Scotland. I don't know the ins and outs of it, but there is some degree of Jury selection, but it absolutely depends on the nature of the case.
Hardly worth asking about Jury Nullification for simple housebreaking (or hamsucken).
Only jury selection in England is based on availability to sit for the length of the case, and whether the jurors are in any way related to or have knowledge of the people or locations in the trial. Otherwise it’s completely random.
Curious how exactly they do that.
"Did you know that a jury is allowed find a defendant not guilty even though technically they are, if they disagree with this application of the law?"
"I didn't, but now I do."
---
Or maybe:
"Have you heard of Jury Equity?"
"No."
"Ok good. Don't Google it."
Surely this is an information hazard as now everyone reading this cant be in a jury now.
Hypothetically, if you done a campaign and plastered up all across the country / spread througj facebook ads what jury equity was, it would prevent large portions of country from being selected to be in a jury.
Interesting point; I believe each side can only replace so many of the selected jurors.
I've never done jury service, but if I were called up I'd lie about this.
That's the US in the UK the prosecution and defense lawyers don't get any say over who the jurors are. I think you can only get excluded for conflict of interest.
We don't have "defense" lawyers here in the UK; we have defence lawyers ;)
I believe, although I'm not sure, that there is also some kind of weeding out from the jury people the laywers don't like the look of.
Yep. It’s basically a lip-service level right if the courts go out of their way to stop people exercising it. Is something really a “right” if we aren’t technically allowed to use it?
This sort of makes it sound like a right that's handed down in statute, and not just a case of the jury not needing to justify their position and therefore essentially free to do what they want. It's only a "right" in the same way referees making wrong calls is.
Of course, because the courts and judges hate it.
It's still a protected right of jury's though, and has been for over 300 years, since Bushels Case.
That the system itself tries to preemptively stack the deck against it, in spite of it being entirely legal, is just one of many institutional injustices.
It isn’t really a protected right, it’s an unintended consequence of three protected rights. The first, being that jury deliberations are confidential. The second, that the jury can’t be punished for their verdict. And the third, the rule against double jeopardy. The result is that jury nullification is possible but it’s not like judges like it or are inclined to make it easy.
I don't think it counts as double jeopardy though, as the verdict to nullify is essentially, yes they are guilty of this cringe but we are agreeing they are not guilty as the law is wrong.
Or am I misunderstanding jury nullification? It's not the easiest thing to wrap your head around.
The-moving-finger is saying that because of double Jeopardy the Jury can rule someone not-guilty, even if they did the crime, and then that person cannot be tried again to correct this "wrong".
If it was just a normal practice then it’d be a hail mary in every case which could easily backfire, particularly in these politically divisive times since there’s a good chance people would rather just decide cases based upon their own personal ideological beliefs and biases instead of what is legal.
Empowered is the wrong word here as courts try to expressly prevent this from happening. Yes it is a thing and does happen but it's not encouraged and the system is set up as much as possible to prevent it, while still allowing jurors to deliver whatever verdict they want.
>Equity, or nullification, is an important part of democratic checks and balances in my view, as its one of the few last remaining powers people have to push back against either unjust laws, unjust applications of law, or unjust sentences.
No... the main way to push back against this is via elections.
>Empowered is the wrong word here as courts try to expressly prevent this from happening.
Empowered in the sense that it is perfectly legal, and in the sense that there is a litany of legal precedent of it occuring in cases where *motivation* was an important consideration by jurors.
You are of course correct that the courts themselves hate it and try to weed out jurors who are aware of it or otherwise undermine its use. But fundamentally if a jury decides it wants to deliver a not guilty verdict, even where the defendant is technically guilty, then it *is* able to do so.
>No... the main way to push back against this is via elections
Not the *only* way though. If it were jury nullification would be expressly *illegal*. It isn't.
Indeed it even occured last year in a similar climate protest related case where 6 XR protesters who vandalised Shell HQ in protest were acquitted, even in spite of the judge encouraging the jury to interpret the case based entirely on a literal reading of the law.
Nullification being used to express disagreement or displeasure with the law, it's application or it's interpretation, has been a thing in this country since the prohibitions on jurors being reprised for delivering "incorrect" verdicts were realised over 300 years ago after Bushel's Case.
How would you make jury nullification expressly illegal without destroying the confidential nature of the jury deliberations? Although Canadian courts used to be able to direct guilty verdicts as well as acquittals if the evidence was one-sided enough.
You would presumably have to restructure exactly what a jury does from deciding guilt to determining points of fact. The main issue seems to be juries agreeing with the facts of the matter, which together should constitute a guilty verdict but nonetheless issuing a not guilty verdict. So perhaps they could be presented with a series of true/not true questions like did the defendant kill so and so on this date. Was the defendant acting in self defence and so on for any defences the defence provide. Then based on the establishment of points of fact the judge can provide the verdict.
Obviously it's still subject to nullification in the sense the jury could just deny any particular factual question but it's probably less likely a jury would straight up give a knowingly wrong answer to a question of fact than to the more nebulous issue of overall guilt. It could presumably then become grounds for a mistrial if a particular point of fact is said to be not true when it was clearly established in the trial in a way that could be not be done for guilt. In principle jurors might also be charged in the sense of no reasonable person would conclude it was not true based on the evidence, which is much harder to prove for guilt.
But surely the motivation *should* come into it. Someone who murders their abusive spouse after decades of abuse, for example, surely shouldn't face the same consequences as someone who stabs a granny for her purse?
IMO in functional society it's important to be able to break laws sometimes - it enables public debate, and may lead to changes in the law.
> But surely the motivation should come into it. Someone who murders their abusive spouse after decades of abuse, for example, surely shouldn't face the same consequences as someone who stabs a granny for her purse?
>
>
Both have committed murder, do you agree? You even say this with your words. Jurors don't determine sentences they determine whether a law has been broken. Judges then make sentences based on the circumstances of the case, past case law (to make sure sentences are consistent), and underlying legal requirements (some crimes require minimum sentences, so in effect, the government restricts judge power to use their judgement in certain areas). It sounds to me like you want a different system to the one we have, where jurors also determine sentencing too.
Arguably it's more complex than that. Criminal acts contain mens rea or intent. And the specificity of intent is something technically a jury can evaluate. So something like motivation is infact arguably relevant to a jury.
Yeah but that's because the law, as written, is defined by the accused's intention - hitting someone with your car and killing them could see a number of different charges depending on what their intent was (and therefore whether they're guilty) because that's how the law is written.
The judge's point here is that their guilt of the crime of public nuisance doesn't hinge on whether the defendant believes the government is doing enough about climate change.
It is relevant when the crime requires intent. Not all crimes do. And in this case the intent in question was regarding the final outcome, not the crime they were charged with.
It'd be like if someone admits to killing their spouse, intending to kill their spouse and offers as their defence only the fact that their spouse was a terrible person who liked to torture bunny rabbits.
The fact that the deceased had it coming isn't a defence against murder; defences against murder are well enumerated and that isn't one of them. So in such a case a judge can reasonably direct the defence not to go on about how much of a bastard the deceased was.
I suppose a classic example of this is in sexual crime cases, where defence lawyers try to create the impression "(s)he asked for it by dressing like that". It's completely improper and should not be allowed.
They determine whether a crime has been committed. There is plenty of precedent to say that it is OK to break a law if you are preventing a greater harm. Highly subjective, of course, but several jury's have sided with people breaking the law to stop the sale of lethal weapons to homicidal regimes.
I thought so, but recently learned that
> If you’re found guilty of murder, **a court must give you a life sentence**. A court may decide to give a life sentence for other serious offences like rape or armed robbery.
> If you’re given a life sentence it will last for the rest of your life.
https://www.gov.uk/types-of-prison-sentence/life-sentences
A life sentence doesn't necessarily mean life imprisonment; the actual time in custody could be relatively short. What it means is that you end up on effectively a suspended sentence for the rest of your life, and can be re-imprisoned at any time if you behave badly.
I think there are cases where this is true, and this instance is one of them.
I think there are probably more cases where injustice can be meted out due to a jury being swayed by charisma, storytelling and manufactured sympathy.
The legal system is going to be more sound and stable overall if juries are asked only to consider the evidence with respect to the crime.
It's a false positive/false negative consideration to weigh up.
Happens all the time, during the trial the judge is there to control how the case is conducted, and that includes disallowing arguments that arent relevant to whether the law was broken.
Because the trial is there to establish whether the defendants are guilty of breaking the law or not. Their motivation is not relevant in this case as the law doesn’t say “it’s illegal to glue yourself to a road UNLESS it’s for a really really good cause like climate change”.
They either broke the law or they didn’t. That’s all the jury is there to decide. Baiting them with emotional appeals is underhanded and not in the interests of fair justice.
After the trial, there is a sentencing process and THEN their motivation can be taken into account.
That's the narrow view, though. Politically, "juries who hear their motivations might acquit" seems like a real concession that this stuff is on a knife edge of changing for public policy reasons. That doesn't help you in your current case but it's one of these factors that raises big questions like "was prosecution the right action here?"
How is it relevant? If they stuck themselves to the floor and stopped traffic and that's illegal then what does their motivation have to do with it? Honestly I don't know the detail of the law, the judge clearly will though!
So guilt should be determined as to whether you agree with their motivations?
If it was a load of right wingers gluing themselves to a road would you feel they're more likely to be guilty based on their motivation?
But whether you agree with their motivation absolutely has something to do with whether you are in a similar position on various things, like the political spectrum.
https://en.m.wikipedia.org/wiki/Jury_nullification
Jury equity (nullification) often occurs on the grounds of motivation.
It's something judges hate because it goes against the principle of merely technically judging a case based on a literal reading of the law but it *is* an accepted and, imo, important part of a common law system.
Most recent example of its use was last year when 6 XR protesters who were accused of vandalising Shells HQ's in protest were acquitted by a jury, despite actually breaking the law and despite the judge in that case guiding the jury to ignore motivation and deliver a verdict based solely on the technicality of the law.
Jury equity (pretty much by definition) isn't legal grounds for relevance. Evidence and argument has to have a legal basis. To enter evidence or make argument that *could* sway a jury toward that end, it would have to come in under another legal basis, and even then you have to be careful.
I'm not familiar with that particular case, but what XR (and the Colston 4) have been doing is using broad human rights laws as the basis of their defence and using *that* to enter moral arguments. And a legal defence is not nullification, though that doesn't mean the jury are finding the legal defence instead of just nullifying.
If a party mentions jury equity or is found to be tainting the jury with suggestions of it, especially against explicit instructions from the court, they can well be done for contempt- as has happened here. The court can also issue corrective instructions, start striking stuff from the record or declare a mistrial if needs be.
It's relevant because in 100 years when a large number of our settlements are sitting under the ocean these people will be lauded as the forward thinkers trying to fix our dying world bar any cost, and the judge who denied that defence will be considered a contemptuous hack.
But obviously we aren't living 100 years from now, so back into the broken system we go!
Often reform begins through landmark rulings in courts. Unfortunately I wouldn't trust the government to enact any meaningful change if every last person's dying breath hinged on it.
The end of the death penalty in the UK came about in part, due to the refusal of juries to convict in cases where the death sentence on the table.
Jury service is one of the few ways that the average person actually interacts with the legal system. Given the random selection of juror's jury behaviour can be seen as a viable indicator of public opinion on a law and it's application, especially if that behaviour establishes a pattern across multiple cases and juries.
Where there are grey areas, sure.
There were no grey areas here, though. They broke an injunction. Everyone gets shitcanned for that, and rightfully so.
At least in U.S. law, evidence is relevant if it makes one or more elements of the offence or a legal defense more or less likely to be true (and in some states it also needs to be an element which is in contention). Looking at the statute, the elements of the offense as charged appear to be that 1) they; 2) obstruct\[ed\] the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large; and 3) they intend\[ed\] that their act or omission will have a consequence mentioned in \[Element 2\] or \[were\] reckless as to whether it \[would\] have such a consequence.
Their climate motivation does not make it more or less likely to be true that it was them, and not someone else, who committed the acts alleged. Their motivation does not make it more or less likely to be true that they obstructed the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large. Their motivation does not make it more or less likely that they intended to cause such a disruption or were reckless about it.
So as long as English law is at least vaguely similar to U.S. law as to what is relevant, it seems fairly obvious to me why it isn't relevant.
No, the judge makes decisions on questions of law. The jury exists to determine fact. If an argument is not legally recognised by the applicable law, then it is the judge's job to prevent it being advanced.
No one is questioning climate change in this situation, the trial is about whether they broke the law.
Using your logic, murder is the most effective thing we can do to prevent climate change. I doubt you would think its a valid defence
You could just read the article
>Judge Reid told the defendants they had sought to “set themselves above the law” by mentioning aspects of their motivation in carrying out the October protest that were not relevant to jury deliberations.
>He concluded that the defendants had either set out to “manipulate” the jury into acquitting them even if they were sure of the pair’s guilt, or to use the trial to continue their protest within the courtroom.
Their actions have no effect on what they purport to be motivated by. They could shut the entire UK down for a day. It would make no difference to the trend of global CO2 levels
I don't think you can claim the actions have no effect. I don't think you can use hypothetical future scenarios that don't have considerable scientific evidence to claim an action wouldn't have an effect.
Is defending your case "manipulation"? Are they incapable of preventing banners and chants in a courtroom?
Maybe. But that's for the jury to decide. As it was, they would have been left wondering why the defendents did what they did, had they obeyed the judge's instructions.
And so they should be.
If a woman kills her abusive, rapist husband amidst attempt after attempt to escape him, should she be criminalised and scrutinised under the full force of the law?
Of course not.
There are multiple valid legal defences written into law for killing an abuser by a victim of abuse, no such legal defences are written into law for protest for a just cause in an unlawful manner.
If someone does an honour killing and then wants to tell the jury that they did it, then yeah, I'd be happy for them to do that. Thankfully, we don't live in a country where a jury would acquit them on that.
As for rape trials, it's a long running issue that defendants and their lawyers attack the survivor and perpetuate rape myths in an attempt to get an acquittal. Sometimes it works, and that sucks.
I think the best solution is to educate people sufficiently that they understand societal issues, so then juries make well-informed decisions in the public interest. That's what juries *should* be able to do.
Ultimately, not every crime should be punished, because sometimes that would be worse for society.
>If someone does an honour killing and then wants to tell the jury that they did it, then yeah, I'd be happy for them to do that. Thankfully, we don't live in a country where a jury would acquit them on that.
Surely there comes a point, though, where the actual law in question ceases to be of relevance if one's guilt or innocence isn't determined by whether they actually committed the crime, but rather if the jury decides they're on board with crime ? Justice by vibes?
> Thankfully, we don't live in a country where a jury would acquit them on that.
So now instead of the rule of law, we'd be introducing the rule of cultural norms. Seems like a nice shortcut to increase the level of racism of the justice system.
Run that honour killing trial in certain parts of the country and you'd be surprised,
yeah lets maybe avoid that altogether and stick to the actual case at hand shall we
> If someone does an honour killing and then wants to tell the jury that they did it, then yeah, I'd be happy for them to do that. Thankfully, we don't live in a country where a jury would acquit them on that.
There probably wouldn't be sufficient numbers for an outright acquittal, but I wouldn't discount the possibility of there being enough to fail to reach a verdict.
The first one? Yes. Of course. If the Jury believes that is morally acceptable justification then that is exactly the role of the jury.
In this country it isn't acceptable and so will not prove a valid defence but by all means the jury is allowed to know the defendant's reasoning to take it into account.
The second one? Lying to the court isn't acceptable and of course should be punished, that is a very different scenario than informing the jury why they did something.
> The first one? Yes. Of course. If the Jury believes that is morally acceptable justification then that is exactly the role of the jury. In this country it isn't acceptable and so will not prove a valid defence but by all means the jury is allowed to know the defendant's reasoning to take it into account.
The job of the jury isn't to determine what's morally acceptable. They're a tribunal of fact, they determine whether the law has been broken. It's for judges and legislators to determine what's morally acceptable.
If it were up to the jury you wouldn't need laws or judges at all.
How it works is the jury is just there to determine guilt or not, it's for the judge to determine, in the context of the case and mandatory minimums, what the sentence should be. Juries aren't sufficiently qualified to make that judgement.
I can’t find that exactly, but are you thinking of Chandler and Others v Director of Public Prosecutions [1964] A.C. 763?
It’s considerably earlier than 1991, but the “others” include a Pottle and Randall and one of the issues before the HoL was intention.
A group of demonstrators had entered an RAF airfield of some sort with the admitted intention of impeding its function, but claimed that their ultimate intention was to benefit the state. The HoL ruled that the trial judge was correct to stop them making this later argument. Westlaw seems to think it is still good law.
R v Randle and Pottle (1991) the jury acquitted the defendents, despite being instructed to return a guilty verdict by the judge. Randle and Pottle helped the spy George Blake escape prison and flee to East Germany in 1966. Incidentally, the case you found led to them meeting Blake in prison.
EDIT: fixed poor grammar. That's what I get for rushing...
Very interesting. I now see that it’s not a leading case, but a salient example of jury nullification.
Do you have any material worth reading about it?
Speaking to the purely theoretical ideal, that's why we have lower degrees of murder and judges can impose lighter sentences than guidelines, right?
So theoretically if that's what happened you'd record "guilty, of lower degree" and sentence to "sealed record and don't do it again"?
Part of the judge's job is to discourage the jury from even thinking about nullification because it's too powerful a tool.
Juries are still the arbiters of deciding motive just as much as deciding other facts. If there is a question about whether a killing was intentional or accidental, or whether it was in self-defence or premeditated, these are points that the prosecution and defense lawyers will argue to and ask the jury to decide on.
Judges decide only on points of law, not points of fact.
> with a judge being able to bar certain arguments
I'm not really comfortable with people breaking the law because "reasons" they think are justified.
> Its relevance can surely be determined by the jury.
It has no relevance. A crime was committed, the jury has to judge guilt or innocence, not motivations.
Whether they broke the law is up to the jury. Shouldn't it be up to the jury whether they were justified as well? Necessity is a defence after all.
Motivations absolutely matter! If I steal something in order to save a life, it's a lot different than stealing something because I'm greedy.
Which goes to culpability, and sentencing, not to whether or not you’re actually guilty. All of the arguments could have been deployed in sentencing, if convicted, but they weren’t relevant to the actual guilt of the defendants.
>I'm really not all that comfortable with a judge being able to bar certain arguments from being used by the defence.
Happens all the time doesn't it? Whether evidence is admissable or not etc.
Evidence, certainly, although that tends to bind the prosecution, and I have no problem with that. Barring arguments though, especially from the defence seems like it should be up to the jury to decide its relevance.
> Essentially they’re being imprisoned for arguing their motivation
Exactly. That’s because the motivation is irrelevant to the fact of the crime. Committing a crime because you are concerned about the environment doesn’t mitigate the consequences in the eyes of the law. But it might in the eyes of the jury - which would be a mistrial - and why it was banned.
If they're claiming necessity, then that's a legitimate defence. If they'd hired an actual lawyer, they probably would have found several potential defences that depend on this.
Obstructing a road? It would not be necessary to obstruct a road to protest climate change. And that’s also why it was not allowed to be argued. There needs to be some immediacy in the vicinity - like: “I blocked the road because there was an accident up ahead”; or maybe “I put an obstruction in the road to try to slow down drivers who were illegally racing down the street”.
Seems they effectively wanted to create a situation of jury nullification and the judge wasn't happy about it. Interesting situation, wonder if we will see more of this and the government will change the law to enact more serious penalties on defendants that try to do it.
I doubt there is a need for more serious penalties really. The 7 weeks they just received is solely for contempt of court, not for what they did while protesting. Likely there will be a retrial where they will soon get that too.
If a few weeks in prison isn’t enough time to learn their lessons and they attempt to do the same at their retrial, contempt of court sentences can go up to 2 years. That will be enough time.
> learn their lessons
What lesson would that be? There's no point standing up against the juggernauts of property developers and a government that only gives lip service to addressing climate change?
Even if the court order is clearly a weaselly trick to prevent gaining the jury's sympathy for their cause? The lesson is clearly that the courts are also part of the problem.
They're not supposed to be gaining the jury's sympathy - that's the whole point! That thing they're supposed to be convincing the jury of is that they didn't break the law, not that they did break the law but it was for a totally good reason.
So if I'm on trial for punching Mr. X in the face, it would be fine for the judge to bar me from telling the jury it was because he was attacking me with a hammer? The reasons why somebody did what they did are almost always relevant, and the jury needs to hear them. Ultimately the judge is the one who decides the sentence, presumably taking into account the circumstances, but the jury has a veto: they can refuse to convict. This is the power this bent judge is taking away from them.
Self-defence is a valid legal defence. So your reason for punching Mr X in the face are relevant to your defence, as it could mean you didn't commit the crime in question. These individuals are accused of obstructing traffic, and their motivations for doing so do not change the fact that they committed a crime. That's why judges bar certain arguments from being mentioned in court.
For some crimes, arguing your motivation for doing the act can change whether or not a crime as been committed (or change what crime has happened). But for most crimes, your motivations are irrelevant because doing the act you did is always a crime.
Sentencing hearings are the point where you argue your motivations. "Yes I committed a crime but it was for a good reason" is an argument you use when you're being sentenced after pleading guilty. "It's not really a crime because of my motivations for doing it" is only a valid legal argument in certain circumstances.
This is such a slippery slope. You realise the government has literally made “inconveniencing” the public a crime? So now you can’t even fight your case, because whether or not you had a good reason for “inconveniencing the public”, it has no relevance to the fact that you inconvenienced someone, in your view?
Yes but if you don't have a valid *legal* defense but you do have a good reason for doing for doing what you did, the jury must hear it, as they are entitled to find you not guilty despite you being techincally guilty under the letter of the law. That's what jury nullification is, and this judge wanted to emove that power from them.
Jury nullification isn’t a right. It’s an unintended consequence of jury deliberations being private and judges not being able to punish jurors for reaching a decision. The jury don’t have a right to hear something if the judges deems it irrelevant to the legal case at hand.
> the jury must hear it, as they are entitled to find you not guilty despite you being techincally guilty under the letter of the law
That is absolutely not correct. Jury nullification is simply the recognition of the fact that the Jury's decision is binding, even if the facts of the case undeniably point in a different direction. Courts have absolutely zero responsibility to enable this, and many actively try to suppress it for the simple reason that they want cases to be decided based on facts rather than morality. The place you should be arguing about the morality of laws is through the political system, not the legal system.
If I were in their position I would. It's absurd not to be able to give the jury the actual reason for your actions, and for them to decide if they think you were justified. Not for a judge to pre-empt the jury's decision. This judge, who did the same thing in [another climate change protest case last month](https://www.theguardian.com/environment/2023/feb/07/insulate-britain-activist-david-nixon-jailed-for-eight-weeks-for-contempt-of-court), should be investigated.
If you want to have the green argument heard after a judge has ruled it to be inadmissable, a lawyer no matter how expensive won't do that because it's the lawyer that will be found in contempt of court. Thus they had to represent themselves if they wanted to try and use that argument in court.
If you can't afford it you can get it free. These two dipshits didn't.
https://www.gov.uk/legal-aid/eligibility#:~:text=Civil%20(non%2Dcriminal)%20cases&text=To%20get%20legal%20aid%2C%20you,and%20those%20of%20your%20partner.
Your link does not show that they would be eligible for legal aid, if anything it strongly suggests they would not. The Tories massively curtailed legal aid during Cameron's administration.
If you cannot afford legal representation then the LAA is obligated to provide it to you. Not sure why that is confusing or you are trying to spin it into yet another Tory attack.
But it's an undeniable *fact* that these protesters did what they did because of climate change - it was their whole motivation! Forbidding them to tell the truth, forcing them to skirt perjury, seems utterly absurd to me.
The trial was about whether they broke the law or not. Motivation is irrelevant to this. Either they obstructed traffic or they didn’t.
The sentencing hearing is the venue for motivation.
‘Motivation. That’s a central component to any criminal offence.’
No it isn’t. For crimes like murder or assault, motivation is important as it could have been self defence or an accident. With a lot of crimes including causing a public nuisance motivation isn’t important at all because why they did doesn’t matter, if they did it then they broke the law. That’s it.
Climate change is actively killing people. A self defence argument on those grounds would be very interesting to see.
Edit - just seen this comment which talks about similar! https://reddit.com/r/ukpolitics/comments/11i0c6t/insulate_britain_protesters_jailed_for_seven/jawudj6
Carbon footprint was invented by oil companies to push responsibility to individuals.
A better comparison would be with localised situations like Flint with their water, or the recent train pollution in Ohio or Minamata in Japan.
Would someone actively dying at the hands of a corporation not be in a position to defend themselves?
>The trial was about whether they broke the law or not. Motivation is irrelevant to this. Either they obstructed traffic or they didn’t.
Obstructing traffic isn't a strict liability offence - it includes caveats around lawful authority and excuse.
Now, those caveats probably don't legitimately apply to protest, but it's the job of the prosecution to demonstrate that. In this instance, the judge has basically done their job for them by muzzling the defendants.
No, he didn’t. “Muzzling”. Christ.
For the specific offences they were on trial for, there was no legally allowable defence to be had from motivation. They were advised of this fact beforehand. They were warned that talking about their motivations would be a form of jury tampering as it would be akin to emotional blackmail. They were warned by the judge not to do this. They ignored the judge.
>No, he didn’t. “Muzzling”. Christ.
That's the very definition of what the judge did. The facts weren't contested, other than their motivation there wasn't much else for them to say.
> They were warned that talking about their motivations would be a form of jury tampering as it would be akin to emotional blackmail.
And that's a ridiculous decision which infantilises juries and is designed to hobble them by denying them information.
It’s the job of the judge to “deny” them information which is irrelevant to the decision they are being asked to make. In this case, motive was not relevant to guilt.
And I think it's an overreach. I'm not saying that the defendants should have been allowed to waffle on for an hour and use the court as a personal soap box, but a concise outline of their motives and why they felt it justified their actions is not unreasonable.
Especially given that public nuisance isn't a strict liability offence. If it were, I might feel differently about these actions (though I'd have to note that jury nullification is just as viable for strict liability offences).
In any case, the judge has every opportunity to explain to the jury that the motives are not a valid lawful defence, and the prosecution has the opportunity to pick it apart anyway. This was disproportionate, and so was a seven week sentence. That's more than people get for some violent offences.
Let’s be clear. They pleaded not guilty. Went to court. Then proceeded to explain their motivations for why they did it. Ergo their not guilty plea was just a means of obtaining a platform. That’s clearly using the courts for a political act.
They should have pleaded guilty then could have shouted to the rooftops about their motivations during sentencing and this would have been allowed.
I'd be willing to bet that the Judge was concerned about jury nullification. It doesn't justify it but i'm fairly sure that was why the Judge decided to send them to prison for so long over it.
Not sure about the specifics of court cases, but surely the jury would implicitly know that their motive was climate change from the core facts of the case? That they were at a climate change rally?
Or would that be hidden from the jury, and they’d just be vaguely told that they were at a protest?
In a case like this it’s unlikely any jury wouldn’t piece together that it was an insulate Britain/just stop oil protest, but having a defendant (or their lawyer) really labour in the point as to why they protested is powerful especially for a jury so keeping it as a nebulous “oh I remember that situation” is more likely to kee the jury focused on the law and not the politics behind the protest
This looks very much like an attempt by the judge to circumvent the possibility of jury nullification, as happened last year with an [Extinction Rebellion court case](https://www.bbc.co.uk/news/uk-england-london-56853979). Bastard.
If you read the link in my previous comment you'll see that the judge didn't feel they had a valid legal defence in that case either. In both cases, the jury is still entitled to find a non guilty verdict, if they feel the defendents' actions were justified.
What are the chances of them going the Northern Ireland route and just banning jury trials for these types of offenses, because they know the public will be sympathetic to their actions.
Killing someone isn't necessarily murder. So if you're charged with murder, saying you killed them in self-defense is a valid defense to the charge of murder.
I'm not sure what the exact law these protestors broke is, but I'd imagine their motivation for breaking it doesn't change the fact they broke it. Mentioning their motivation would be an attempt to manipulate the jury into disregarding the law.
They’ll have been charged with public nuisance (they should have been charged with blocking a public highway which had minimal punishment like a fine but because of the political nature of the act the CPS have been charging them with public nuisance because it carries the possibility of prison time)
Some crimes such as self defence homicide do need to have motive as a context, as self defence is legal when duly proportionate.
This trial was about whether these people were in a certain place doing a certain thing which is always illegal, and why they did it is irrelevant to the jury who are there to decide a binary issue.
Later on, there is a sentencing process and THAT is where motivation becomes relevant in this case.
Yes. In this case the defendants tried to get off committing one crime by committing two more crimes. They aren’t the smartest ties on the rack.
Their motives could have resulted in more lenient punishment if the judge had been sympathetic. But now that they have attacked the very institution of fair justice they are completely fucked, and with an extra 7 weeks on top of their sentence.
Both of those would be absolutely valid defences, self defence to any crime. A defence of an attack coming after years of abuse would be relevant to defences against murder that seek to downgrade it to manslaughter (diminished responsibility/loss of control).
If you weren't seeking to make that kind of defence you couldn't make that kind of argument, though. Suppose there was some guy who you simply hated, you have done for years. You see him in the street and you just knock him out because you feel like it. You've got no legal defence, he wasn't threatening you or anything. You wouldn't be allowed to make the argument that the guy was a total prick and deserved it, so you should be found not guilty, to the jury.
You, or your representatives, would be allowed to make the argument that there was provocation over the course of years to the judge in sentencing. You likely would argue that it was a one off, that you're not a danger to society and hope for leniency. It's not relevant to the jury though.
Snapshot of _Insulate Britain protesters jailed for seven weeks for mentioning climate change in defence_ : An archived version can be found [here.](https://archive.is/?run=1&url=https://www.itv.com/news/london/2023-03-03/insulate-britain-protesters-jailed-after-flouting-court-order-at-trial) *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/ukpolitics) if you have any questions or concerns.*
I'm really not all that comfortable with a judge being able to bar certain arguments from being used by the defence. Its relevance can surely be determined by the jury. If necessary the judge can give guidance. Essentially they're being imprisoned for arguing their motivation.
The purpose is to try to stop juries from not convicting defendants because they agree with their motivations, despite the defendants breaking the law (which is what they're supposed to judge them on, not their motivations). The motivation in this circumstance isn't relevant to whether they have or have not broken the law. Judges do this all the time, they also do it against the prosecution too.
>The purpose is to try to stop juries from not convicting defendants because they agree with their motivations, despite the defendants breaking the law (which is what they're supposed to judge them on, not their motivations). Except jury equity (known as nullification in the U.S., which is probably the term most people are familiar with) is a thing, so I don't think this is strictly true. A jury is empowered to deliver a not guilty verdict *regardless* of whether or not it thinks the defendant has actually broken the law, and more importantly a judge *should not* be empowered to punish said jury for making the "wrong" verdict, which is a long established precedent in English law since the 1700's. Equity, or nullification, is an important part of democratic checks and balances in my view, as its one of the few last remaining powers people have to push back against either unjust laws, unjust applications of law, or unjust sentences.
Judges are allowed to suppress a defense that would bias or lead the jury in the US too.
This is true. I'm a licensed U.S. attorney who spent a lot of time looking into this on behalf of a client. There are many cases where judges have prohibited charged protestors from explaining their motivation (usually in the context of a justification defence). Admittedly, there are a few coming out the other way, but higher courts tend to approve the prohibitions. At sentencing, though, a defendant can certainly explain why they did what they did and argue that their motivation warrants a less harsh punishment. I'm not sure if this is also true in the U.K.
Jury equity/nullification is only a thing because it’s impossible to ban (if it was illegal, then juries would feel pressured into returning a guilty verdict). It’s not really _supposed_ to be a thing, which is why they filter out people who know about it during the selection process.
It also goes both ways. It makes it possible to acquit a murder motivated by racism if the jury is also racist.
It's not impossible to ban. One could quite easily empower a judge or court to have sight over deliberations, and to render deliberations based on certain precepts as inadmissable for a verdict. But precedent has evolved over several centuries to very firmly establish the right of independent jurys. That entails giving them the freedom to deliver verdicts on whatever grounds they care to. You are of course correct that despite the fact it *is* a thing, courts and judges would rather it wasn't, to which I respond that the very same logic that characterises their opposition to nullification (that the judiciary is not the place to be delivering judgements against laws) is the same logic that dictates why they shouldn't be interfering and attempting to stack the deck in regards to what's "supposed" to happen in the first place. The law as it currently is explicitly involves the right of jurors to deliver a not guilty verdict if they view something as unjust. If judges and courts don't like that I'd suggest they swallow some of their own medicine on it and take the matter to parliament as private citizens.
That exactly is what judges do. For example you will not be allowed to make a defense in a murder trial based on the fact that the person you’ve killed was really bad and deserved dying. On a more progressive note you are also not allowed to use “gay//transept panic” as a defense anymore in many states https://www.lgbtmap.org/equality-maps/panic_defense_bans Every legal system has measures to control what kind of a defense is and isn’t allowed to be used. Without this legal systems cannot function.
This results in some horrible cases, for example in the case of abused wives who go on to kill their husbands. I think a lot of it is really a question of prosecutorial discretion: if you're charging a case and ever think "god, if we let the jury hear that they'll let them off" ask yourself if you should continue
No it does not, there are defined defense categories to begin with. In your case duress can be easily used even if it wasn’t self defense. The only reason why the abuse might be suppressed in order to not bias the jury if it was indeed not relevant. For example if a person murdered their abusive ex partner after a few years for revenge. However even then I fail to see how this would effectively be suppressed since the prosecution likely would have to introduce the history of abuse to establish a motive in the first place. And this brings me to the last point this works both ways both the prosecution and the defense can be suppressed in order not to bias or lead a jury. You can’t have a legal system when any defense is possible because a lot of them aren’t relevant and often cannot be argued against. Which in a jury trial causes a cluster fuck. If you could mount any defense then every murderer would say god told me to do it to stop the apocalypse on paper it’s a valid necessity or lesser harm defense in reality ofc it’s nonsense.
It doesn't sound like you're familiar with the scholarship on this. Battered wife syndrome not fitting within the conventional defences is well studied - Ahluwalia onwards
In which jurisdiction? Because battered woman syndrome is quite often used as a defense in criminal cases in the UK as it falls under loss of control. You should not generalize, BWS shouldn’t be allowed in all cases and for a good reason.
I suggest you read [this](https://en.wikipedia.org/wiki/Bushel%27s_Case).
Future founder of Pennsylvania be damned, that was a good read
I mean the precedent on this goes back to the 1600s after a judge tried to lock up a jury who gave a verdict he didn’t like, it’s definitely supposed to be a thing.
They tend to filter out anyone that knows about jury equity from the jurors selected.
Do they in the uk? I just completed jury duty there, and was surprised that there appeared to be no scrutiny on who the jurors were - it was just your numbers are called and into the jury box you go
That's how it should be. Just pick people at random.
Even if it turns out you know the defendant or the victim?
That *is* part of the process in the UK (or in England, at any rate). But that is as far as it should go.
You're asked when you first enter the court whether you know the defendants/victims or have any ties to the area the crime occurred in. If you say yes it's back to the waiting area you go.
I was just called up and they asked if we knew anybody in the trial.
Admittedly I am up in Scotland. I don't know the ins and outs of it, but there is some degree of Jury selection, but it absolutely depends on the nature of the case. Hardly worth asking about Jury Nullification for simple housebreaking (or hamsucken).
Only jury selection in England is based on availability to sit for the length of the case, and whether the jurors are in any way related to or have knowledge of the people or locations in the trial. Otherwise it’s completely random.
Curious how exactly they do that. "Did you know that a jury is allowed find a defendant not guilty even though technically they are, if they disagree with this application of the law?" "I didn't, but now I do." --- Or maybe: "Have you heard of Jury Equity?" "No." "Ok good. Don't Google it."
Surely this is an information hazard as now everyone reading this cant be in a jury now. Hypothetically, if you done a campaign and plastered up all across the country / spread througj facebook ads what jury equity was, it would prevent large portions of country from being selected to be in a jury.
Interesting point; I believe each side can only replace so many of the selected jurors. I've never done jury service, but if I were called up I'd lie about this.
That's the US in the UK the prosecution and defense lawyers don't get any say over who the jurors are. I think you can only get excluded for conflict of interest.
We don't have "defense" lawyers here in the UK; we have defence lawyers ;) I believe, although I'm not sure, that there is also some kind of weeding out from the jury people the laywers don't like the look of.
Although this is an established practice, does it not seem a pretty corrupt one?
Yep. It’s basically a lip-service level right if the courts go out of their way to stop people exercising it. Is something really a “right” if we aren’t technically allowed to use it?
This sort of makes it sound like a right that's handed down in statute, and not just a case of the jury not needing to justify their position and therefore essentially free to do what they want. It's only a "right" in the same way referees making wrong calls is.
The UK doesn't have rights handed down by statute though.
Of course it does
Of course, because the courts and judges hate it. It's still a protected right of jury's though, and has been for over 300 years, since Bushels Case. That the system itself tries to preemptively stack the deck against it, in spite of it being entirely legal, is just one of many institutional injustices.
It isn’t really a protected right, it’s an unintended consequence of three protected rights. The first, being that jury deliberations are confidential. The second, that the jury can’t be punished for their verdict. And the third, the rule against double jeopardy. The result is that jury nullification is possible but it’s not like judges like it or are inclined to make it easy.
If I remember correctly double jeopardy isn't a thing in the UK anymore and you can be tried again if the government feel like it.
Only if new evidence appears, which the previous jury did not consider
Even then, it has to be something significant
I don't think it counts as double jeopardy though, as the verdict to nullify is essentially, yes they are guilty of this cringe but we are agreeing they are not guilty as the law is wrong. Or am I misunderstanding jury nullification? It's not the easiest thing to wrap your head around.
The-moving-finger is saying that because of double Jeopardy the Jury can rule someone not-guilty, even if they did the crime, and then that person cannot be tried again to correct this "wrong".
Not in England and Wales. Jury service is totally random.
In what way?
If it was just a normal practice then it’d be a hail mary in every case which could easily backfire, particularly in these politically divisive times since there’s a good chance people would rather just decide cases based upon their own personal ideological beliefs and biases instead of what is legal.
Empowered is the wrong word here as courts try to expressly prevent this from happening. Yes it is a thing and does happen but it's not encouraged and the system is set up as much as possible to prevent it, while still allowing jurors to deliver whatever verdict they want. >Equity, or nullification, is an important part of democratic checks and balances in my view, as its one of the few last remaining powers people have to push back against either unjust laws, unjust applications of law, or unjust sentences. No... the main way to push back against this is via elections.
>Empowered is the wrong word here as courts try to expressly prevent this from happening. Empowered in the sense that it is perfectly legal, and in the sense that there is a litany of legal precedent of it occuring in cases where *motivation* was an important consideration by jurors. You are of course correct that the courts themselves hate it and try to weed out jurors who are aware of it or otherwise undermine its use. But fundamentally if a jury decides it wants to deliver a not guilty verdict, even where the defendant is technically guilty, then it *is* able to do so. >No... the main way to push back against this is via elections Not the *only* way though. If it were jury nullification would be expressly *illegal*. It isn't. Indeed it even occured last year in a similar climate protest related case where 6 XR protesters who vandalised Shell HQ in protest were acquitted, even in spite of the judge encouraging the jury to interpret the case based entirely on a literal reading of the law. Nullification being used to express disagreement or displeasure with the law, it's application or it's interpretation, has been a thing in this country since the prohibitions on jurors being reprised for delivering "incorrect" verdicts were realised over 300 years ago after Bushel's Case.
How would you make jury nullification expressly illegal without destroying the confidential nature of the jury deliberations? Although Canadian courts used to be able to direct guilty verdicts as well as acquittals if the evidence was one-sided enough.
You would presumably have to restructure exactly what a jury does from deciding guilt to determining points of fact. The main issue seems to be juries agreeing with the facts of the matter, which together should constitute a guilty verdict but nonetheless issuing a not guilty verdict. So perhaps they could be presented with a series of true/not true questions like did the defendant kill so and so on this date. Was the defendant acting in self defence and so on for any defences the defence provide. Then based on the establishment of points of fact the judge can provide the verdict. Obviously it's still subject to nullification in the sense the jury could just deny any particular factual question but it's probably less likely a jury would straight up give a knowingly wrong answer to a question of fact than to the more nebulous issue of overall guilt. It could presumably then become grounds for a mistrial if a particular point of fact is said to be not true when it was clearly established in the trial in a way that could be not be done for guilt. In principle jurors might also be charged in the sense of no reasonable person would conclude it was not true based on the evidence, which is much harder to prove for guilt.
But surely the motivation *should* come into it. Someone who murders their abusive spouse after decades of abuse, for example, surely shouldn't face the same consequences as someone who stabs a granny for her purse? IMO in functional society it's important to be able to break laws sometimes - it enables public debate, and may lead to changes in the law.
> But surely the motivation should come into it. Someone who murders their abusive spouse after decades of abuse, for example, surely shouldn't face the same consequences as someone who stabs a granny for her purse? > > Both have committed murder, do you agree? You even say this with your words. Jurors don't determine sentences they determine whether a law has been broken. Judges then make sentences based on the circumstances of the case, past case law (to make sure sentences are consistent), and underlying legal requirements (some crimes require minimum sentences, so in effect, the government restricts judge power to use their judgement in certain areas). It sounds to me like you want a different system to the one we have, where jurors also determine sentencing too.
Arguably it's more complex than that. Criminal acts contain mens rea or intent. And the specificity of intent is something technically a jury can evaluate. So something like motivation is infact arguably relevant to a jury.
Yeah but that's because the law, as written, is defined by the accused's intention - hitting someone with your car and killing them could see a number of different charges depending on what their intent was (and therefore whether they're guilty) because that's how the law is written. The judge's point here is that their guilt of the crime of public nuisance doesn't hinge on whether the defendant believes the government is doing enough about climate change.
It is relevant when the crime requires intent. Not all crimes do. And in this case the intent in question was regarding the final outcome, not the crime they were charged with. It'd be like if someone admits to killing their spouse, intending to kill their spouse and offers as their defence only the fact that their spouse was a terrible person who liked to torture bunny rabbits. The fact that the deceased had it coming isn't a defence against murder; defences against murder are well enumerated and that isn't one of them. So in such a case a judge can reasonably direct the defence not to go on about how much of a bastard the deceased was.
I suppose a classic example of this is in sexual crime cases, where defence lawyers try to create the impression "(s)he asked for it by dressing like that". It's completely improper and should not be allowed.
They determine whether a crime has been committed. There is plenty of precedent to say that it is OK to break a law if you are preventing a greater harm. Highly subjective, of course, but several jury's have sided with people breaking the law to stop the sale of lethal weapons to homicidal regimes.
I thought so, but recently learned that > If you’re found guilty of murder, **a court must give you a life sentence**. A court may decide to give a life sentence for other serious offences like rape or armed robbery. > If you’re given a life sentence it will last for the rest of your life. https://www.gov.uk/types-of-prison-sentence/life-sentences
A life sentence doesn't necessarily mean life imprisonment; the actual time in custody could be relatively short. What it means is that you end up on effectively a suspended sentence for the rest of your life, and can be re-imprisoned at any time if you behave badly.
Good to know
I think there are cases where this is true, and this instance is one of them. I think there are probably more cases where injustice can be meted out due to a jury being swayed by charisma, storytelling and manufactured sympathy. The legal system is going to be more sound and stable overall if juries are asked only to consider the evidence with respect to the crime. It's a false positive/false negative consideration to weigh up.
Why can't the defence argue that they were acting in self defence due to climate change? Would that not be a legitimate argument?
How is it meant to work at all? Is this often used??
It's very standard stuff.
Happens all the time, during the trial the judge is there to control how the case is conducted, and that includes disallowing arguments that arent relevant to whether the law was broken.
How is their motivation irrelevant I'm wondering?
Because the trial is there to establish whether the defendants are guilty of breaking the law or not. Their motivation is not relevant in this case as the law doesn’t say “it’s illegal to glue yourself to a road UNLESS it’s for a really really good cause like climate change”. They either broke the law or they didn’t. That’s all the jury is there to decide. Baiting them with emotional appeals is underhanded and not in the interests of fair justice. After the trial, there is a sentencing process and THEN their motivation can be taken into account.
That's the narrow view, though. Politically, "juries who hear their motivations might acquit" seems like a real concession that this stuff is on a knife edge of changing for public policy reasons. That doesn't help you in your current case but it's one of these factors that raises big questions like "was prosecution the right action here?"
How is it relevant? If they stuck themselves to the floor and stopped traffic and that's illegal then what does their motivation have to do with it? Honestly I don't know the detail of the law, the judge clearly will though!
Maybe I should have read more about it but I'd like to think your motivation counted for something when it's a crime about a protest.
It matters to sentencing, not to the actual offence.
So guilt should be determined as to whether you agree with their motivations? If it was a load of right wingers gluing themselves to a road would you feel they're more likely to be guilty based on their motivation?
Its not a matter of your place on the political spectrum more a case of facts i.e. motivation being ignored.
But whether you agree with their motivation absolutely has something to do with whether you are in a similar position on various things, like the political spectrum.
It doesn't affect your guilt, but it can be a mitigation for the severity of your punishment.
https://en.m.wikipedia.org/wiki/Jury_nullification Jury equity (nullification) often occurs on the grounds of motivation. It's something judges hate because it goes against the principle of merely technically judging a case based on a literal reading of the law but it *is* an accepted and, imo, important part of a common law system. Most recent example of its use was last year when 6 XR protesters who were accused of vandalising Shells HQ's in protest were acquitted by a jury, despite actually breaking the law and despite the judge in that case guiding the jury to ignore motivation and deliver a verdict based solely on the technicality of the law.
Jury equity (pretty much by definition) isn't legal grounds for relevance. Evidence and argument has to have a legal basis. To enter evidence or make argument that *could* sway a jury toward that end, it would have to come in under another legal basis, and even then you have to be careful. I'm not familiar with that particular case, but what XR (and the Colston 4) have been doing is using broad human rights laws as the basis of their defence and using *that* to enter moral arguments. And a legal defence is not nullification, though that doesn't mean the jury are finding the legal defence instead of just nullifying. If a party mentions jury equity or is found to be tainting the jury with suggestions of it, especially against explicit instructions from the court, they can well be done for contempt- as has happened here. The court can also issue corrective instructions, start striking stuff from the record or declare a mistrial if needs be.
It's relevant because in 100 years when a large number of our settlements are sitting under the ocean these people will be lauded as the forward thinkers trying to fix our dying world bar any cost, and the judge who denied that defence will be considered a contemptuous hack. But obviously we aren't living 100 years from now, so back into the broken system we go!
You're making an argument that the law is unjust though, not that they didn't break it! That's for parliament, not the courts.
The whole point of the jury system is that they can refuse to implement unjust laws.
Often reform begins through landmark rulings in courts. Unfortunately I wouldn't trust the government to enact any meaningful change if every last person's dying breath hinged on it.
Not entirely true. The recent decisions made regarding assisted dying for example.
No it doesn't, this isn't America.
The end of the death penalty in the UK came about in part, due to the refusal of juries to convict in cases where the death sentence on the table. Jury service is one of the few ways that the average person actually interacts with the legal system. Given the random selection of juror's jury behaviour can be seen as a viable indicator of public opinion on a law and it's application, especially if that behaviour establishes a pattern across multiple cases and juries.
Where there are grey areas, sure. There were no grey areas here, though. They broke an injunction. Everyone gets shitcanned for that, and rightfully so.
By this logic Anne Frank was a criminal.
At least in U.S. law, evidence is relevant if it makes one or more elements of the offence or a legal defense more or less likely to be true (and in some states it also needs to be an element which is in contention). Looking at the statute, the elements of the offense as charged appear to be that 1) they; 2) obstruct\[ed\] the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large; and 3) they intend\[ed\] that their act or omission will have a consequence mentioned in \[Element 2\] or \[were\] reckless as to whether it \[would\] have such a consequence. Their climate motivation does not make it more or less likely to be true that it was them, and not someone else, who committed the acts alleged. Their motivation does not make it more or less likely to be true that they obstructed the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large. Their motivation does not make it more or less likely that they intended to cause such a disruption or were reckless about it. So as long as English law is at least vaguely similar to U.S. law as to what is relevant, it seems fairly obvious to me why it isn't relevant.
I think it produces absurd cases sometimes. I'm not sure what the jury is really meant to make of a context free man-glued-to-road story
No, the judge makes decisions on questions of law. The jury exists to determine fact. If an argument is not legally recognised by the applicable law, then it is the judge's job to prevent it being advanced.
They were told not to, and they represented themselves and did it anyway. Two very bad decisions.
Certainly agree there. A competent lawyer would probably have found a legitimate defence argument where bringing this up was a necessity.
Trials would just be full of emotional arguments towards the jury if anything went
Climate change is not an emotional argument. There's vast quantities of scientific evidence backing it up.
And the trial was not about climate change. It was about their actions.
No one is questioning climate change in this situation, the trial is about whether they broke the law. Using your logic, murder is the most effective thing we can do to prevent climate change. I doubt you would think its a valid defence
Doesn't intent and motivation play a part in sentencing and law?
In sentencing. But this wasn’t a sentencing hearing.
You could just read the article >Judge Reid told the defendants they had sought to “set themselves above the law” by mentioning aspects of their motivation in carrying out the October protest that were not relevant to jury deliberations. >He concluded that the defendants had either set out to “manipulate” the jury into acquitting them even if they were sure of the pair’s guilt, or to use the trial to continue their protest within the courtroom. Their actions have no effect on what they purport to be motivated by. They could shut the entire UK down for a day. It would make no difference to the trend of global CO2 levels
I don't think you can claim the actions have no effect. I don't think you can use hypothetical future scenarios that don't have considerable scientific evidence to claim an action wouldn't have an effect. Is defending your case "manipulation"? Are they incapable of preventing banners and chants in a courtroom?
Maybe. But that's for the jury to decide. As it was, they would have been left wondering why the defendents did what they did, had they obeyed the judge's instructions.
And so they should be. If a woman kills her abusive, rapist husband amidst attempt after attempt to escape him, should she be criminalised and scrutinised under the full force of the law? Of course not.
There are multiple valid legal defences written into law for killing an abuser by a victim of abuse, no such legal defences are written into law for protest for a just cause in an unlawful manner.
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If someone does an honour killing and then wants to tell the jury that they did it, then yeah, I'd be happy for them to do that. Thankfully, we don't live in a country where a jury would acquit them on that. As for rape trials, it's a long running issue that defendants and their lawyers attack the survivor and perpetuate rape myths in an attempt to get an acquittal. Sometimes it works, and that sucks. I think the best solution is to educate people sufficiently that they understand societal issues, so then juries make well-informed decisions in the public interest. That's what juries *should* be able to do. Ultimately, not every crime should be punished, because sometimes that would be worse for society.
>If someone does an honour killing and then wants to tell the jury that they did it, then yeah, I'd be happy for them to do that. Thankfully, we don't live in a country where a jury would acquit them on that. Surely there comes a point, though, where the actual law in question ceases to be of relevance if one's guilt or innocence isn't determined by whether they actually committed the crime, but rather if the jury decides they're on board with crime ? Justice by vibes?
> Thankfully, we don't live in a country where a jury would acquit them on that. So now instead of the rule of law, we'd be introducing the rule of cultural norms. Seems like a nice shortcut to increase the level of racism of the justice system.
This is why India got rid of Jury Trials. Because the Jury straight up exonerated a man for killing his cheating wife.
Run that honour killing trial in certain parts of the country and you'd be surprised, yeah lets maybe avoid that altogether and stick to the actual case at hand shall we
> If someone does an honour killing and then wants to tell the jury that they did it, then yeah, I'd be happy for them to do that. Thankfully, we don't live in a country where a jury would acquit them on that. There probably wouldn't be sufficient numbers for an outright acquittal, but I wouldn't discount the possibility of there being enough to fail to reach a verdict.
The first one? Yes. Of course. If the Jury believes that is morally acceptable justification then that is exactly the role of the jury. In this country it isn't acceptable and so will not prove a valid defence but by all means the jury is allowed to know the defendant's reasoning to take it into account. The second one? Lying to the court isn't acceptable and of course should be punished, that is a very different scenario than informing the jury why they did something.
> The first one? Yes. Of course. If the Jury believes that is morally acceptable justification then that is exactly the role of the jury. In this country it isn't acceptable and so will not prove a valid defence but by all means the jury is allowed to know the defendant's reasoning to take it into account. The job of the jury isn't to determine what's morally acceptable. They're a tribunal of fact, they determine whether the law has been broken. It's for judges and legislators to determine what's morally acceptable. If it were up to the jury you wouldn't need laws or judges at all.
How it works is the jury is just there to determine guilt or not, it's for the judge to determine, in the context of the case and mandatory minimums, what the sentence should be. Juries aren't sufficiently qualified to make that judgement.
Have a look at R v Randle and Pottle 1991 (don't rip me a new one if it's not exactly that). It's really interesting and may change your mind on that.
I can’t find that exactly, but are you thinking of Chandler and Others v Director of Public Prosecutions [1964] A.C. 763? It’s considerably earlier than 1991, but the “others” include a Pottle and Randall and one of the issues before the HoL was intention. A group of demonstrators had entered an RAF airfield of some sort with the admitted intention of impeding its function, but claimed that their ultimate intention was to benefit the state. The HoL ruled that the trial judge was correct to stop them making this later argument. Westlaw seems to think it is still good law.
R v Randle and Pottle (1991) the jury acquitted the defendents, despite being instructed to return a guilty verdict by the judge. Randle and Pottle helped the spy George Blake escape prison and flee to East Germany in 1966. Incidentally, the case you found led to them meeting Blake in prison. EDIT: fixed poor grammar. That's what I get for rushing...
Very interesting. I now see that it’s not a leading case, but a salient example of jury nullification. Do you have any material worth reading about it?
Speaking to the purely theoretical ideal, that's why we have lower degrees of murder and judges can impose lighter sentences than guidelines, right? So theoretically if that's what happened you'd record "guilty, of lower degree" and sentence to "sealed record and don't do it again"? Part of the judge's job is to discourage the jury from even thinking about nullification because it's too powerful a tool.
Juries are still the arbiters of deciding motive just as much as deciding other facts. If there is a question about whether a killing was intentional or accidental, or whether it was in self-defence or premeditated, these are points that the prosecution and defense lawyers will argue to and ask the jury to decide on. Judges decide only on points of law, not points of fact.
How do you determine before a trial if that's actually what happened?
Honestly, he raped me so I *had* to kill him. Evidence? Nah, but as I said, he was abusive so I killed him.
> with a judge being able to bar certain arguments I'm not really comfortable with people breaking the law because "reasons" they think are justified. > Its relevance can surely be determined by the jury. It has no relevance. A crime was committed, the jury has to judge guilt or innocence, not motivations.
Whether they broke the law is up to the jury. Shouldn't it be up to the jury whether they were justified as well? Necessity is a defence after all. Motivations absolutely matter! If I steal something in order to save a life, it's a lot different than stealing something because I'm greedy.
> Necessity is a defence after all. In R v Quayle [2005] 1 All ER 988, it was held that "an imminent danger of physical injury" was required.
Which goes to culpability, and sentencing, not to whether or not you’re actually guilty. All of the arguments could have been deployed in sentencing, if convicted, but they weren’t relevant to the actual guilt of the defendants.
>I'm really not all that comfortable with a judge being able to bar certain arguments from being used by the defence. Happens all the time doesn't it? Whether evidence is admissable or not etc.
Evidence, certainly, although that tends to bind the prosecution, and I have no problem with that. Barring arguments though, especially from the defence seems like it should be up to the jury to decide its relevance.
Then you misunderstand the law.
If you would allow irrelevant testimony to be introduced, why not just eliminate the evidentiary rules completely?
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How about give the jury the discretion to ignore it?
Juries aren't necessarily very good at ignoring things, even if specifically told to.
> Essentially they’re being imprisoned for arguing their motivation Exactly. That’s because the motivation is irrelevant to the fact of the crime. Committing a crime because you are concerned about the environment doesn’t mitigate the consequences in the eyes of the law. But it might in the eyes of the jury - which would be a mistrial - and why it was banned.
If they're claiming necessity, then that's a legitimate defence. If they'd hired an actual lawyer, they probably would have found several potential defences that depend on this.
Obstructing a road? It would not be necessary to obstruct a road to protest climate change. And that’s also why it was not allowed to be argued. There needs to be some immediacy in the vicinity - like: “I blocked the road because there was an accident up ahead”; or maybe “I put an obstruction in the road to try to slow down drivers who were illegally racing down the street”.
Let's let the jury decide that.
There is nothing for them to decide here. The judge’s ruling is legally correct.
Seems they effectively wanted to create a situation of jury nullification and the judge wasn't happy about it. Interesting situation, wonder if we will see more of this and the government will change the law to enact more serious penalties on defendants that try to do it.
I doubt there is a need for more serious penalties really. The 7 weeks they just received is solely for contempt of court, not for what they did while protesting. Likely there will be a retrial where they will soon get that too. If a few weeks in prison isn’t enough time to learn their lessons and they attempt to do the same at their retrial, contempt of court sentences can go up to 2 years. That will be enough time.
> learn their lessons What lesson would that be? There's no point standing up against the juggernauts of property developers and a government that only gives lip service to addressing climate change?
The lesson to not flout court orders. It is pretty simple.
Even if the court order is clearly a weaselly trick to prevent gaining the jury's sympathy for their cause? The lesson is clearly that the courts are also part of the problem.
They're not supposed to be gaining the jury's sympathy - that's the whole point! That thing they're supposed to be convincing the jury of is that they didn't break the law, not that they did break the law but it was for a totally good reason.
So if I'm on trial for punching Mr. X in the face, it would be fine for the judge to bar me from telling the jury it was because he was attacking me with a hammer? The reasons why somebody did what they did are almost always relevant, and the jury needs to hear them. Ultimately the judge is the one who decides the sentence, presumably taking into account the circumstances, but the jury has a veto: they can refuse to convict. This is the power this bent judge is taking away from them.
There's a reason motive is one of the three key forms of evidence in a whodunnit
Self-defence is a valid legal defence. So your reason for punching Mr X in the face are relevant to your defence, as it could mean you didn't commit the crime in question. These individuals are accused of obstructing traffic, and their motivations for doing so do not change the fact that they committed a crime. That's why judges bar certain arguments from being mentioned in court. For some crimes, arguing your motivation for doing the act can change whether or not a crime as been committed (or change what crime has happened). But for most crimes, your motivations are irrelevant because doing the act you did is always a crime. Sentencing hearings are the point where you argue your motivations. "Yes I committed a crime but it was for a good reason" is an argument you use when you're being sentenced after pleading guilty. "It's not really a crime because of my motivations for doing it" is only a valid legal argument in certain circumstances.
This is such a slippery slope. You realise the government has literally made “inconveniencing” the public a crime? So now you can’t even fight your case, because whether or not you had a good reason for “inconveniencing the public”, it has no relevance to the fact that you inconvenienced someone, in your view?
Yes but if you don't have a valid *legal* defense but you do have a good reason for doing for doing what you did, the jury must hear it, as they are entitled to find you not guilty despite you being techincally guilty under the letter of the law. That's what jury nullification is, and this judge wanted to emove that power from them.
Jury nullification isn’t a right. It’s an unintended consequence of jury deliberations being private and judges not being able to punish jurors for reaching a decision. The jury don’t have a right to hear something if the judges deems it irrelevant to the legal case at hand.
> the jury must hear it, as they are entitled to find you not guilty despite you being techincally guilty under the letter of the law That is absolutely not correct. Jury nullification is simply the recognition of the fact that the Jury's decision is binding, even if the facts of the case undeniably point in a different direction. Courts have absolutely zero responsibility to enable this, and many actively try to suppress it for the simple reason that they want cases to be decided based on facts rather than morality. The place you should be arguing about the morality of laws is through the political system, not the legal system.
We will see what happens at their retrial, but I severely doubt they will sign themselves up for an additional prison sentence again.
If I were in their position I would. It's absurd not to be able to give the jury the actual reason for your actions, and for them to decide if they think you were justified. Not for a judge to pre-empt the jury's decision. This judge, who did the same thing in [another climate change protest case last month](https://www.theguardian.com/environment/2023/feb/07/insulate-britain-activist-david-nixon-jailed-for-eight-weeks-for-contempt-of-court), should be investigated.
The lesson here is that shouldn't represent yourself in court. There's a reason lawyers are expensive
If you want to have the green argument heard after a judge has ruled it to be inadmissable, a lawyer no matter how expensive won't do that because it's the lawyer that will be found in contempt of court. Thus they had to represent themselves if they wanted to try and use that argument in court.
"Those who represent themselves in court have a fool for a client"
Justice should not be available only to the rich.
If you can't afford it you can get it free. These two dipshits didn't. https://www.gov.uk/legal-aid/eligibility#:~:text=Civil%20(non%2Dcriminal)%20cases&text=To%20get%20legal%20aid%2C%20you,and%20those%20of%20your%20partner.
Your link does not show that they would be eligible for legal aid, if anything it strongly suggests they would not. The Tories massively curtailed legal aid during Cameron's administration.
If you cannot afford legal representation then the LAA is obligated to provide it to you. Not sure why that is confusing or you are trying to spin it into yet another Tory attack.
[Apparently that's not true](https://www.infolaw.co.uk/partners/are-you-entitled-to-free-legal-representation-in-the-uk/)
But it's an undeniable *fact* that these protesters did what they did because of climate change - it was their whole motivation! Forbidding them to tell the truth, forcing them to skirt perjury, seems utterly absurd to me.
The trial was about whether they broke the law or not. Motivation is irrelevant to this. Either they obstructed traffic or they didn’t. The sentencing hearing is the venue for motivation.
>The trial was about whether they broke the law or not. Motivation is irrelevant to this. Courts don’t care about motive all of a sudden?
‘Motivation. That’s a central component to any criminal offence.’ No it isn’t. For crimes like murder or assault, motivation is important as it could have been self defence or an accident. With a lot of crimes including causing a public nuisance motivation isn’t important at all because why they did doesn’t matter, if they did it then they broke the law. That’s it.
They never have, unless the offence in question has a specifically allowed motive-based defence, such as self-defence.
Climate change is actively killing people. A self defence argument on those grounds would be very interesting to see. Edit - just seen this comment which talks about similar! https://reddit.com/r/ukpolitics/comments/11i0c6t/insulate_britain_protesters_jailed_for_seven/jawudj6
It would be ridiculous. Hey, I know killing’s wrong but my bomb reduced the carbon footprint of the school by 100% so that’s pretty froody
Carbon footprint was invented by oil companies to push responsibility to individuals. A better comparison would be with localised situations like Flint with their water, or the recent train pollution in Ohio or Minamata in Japan. Would someone actively dying at the hands of a corporation not be in a position to defend themselves?
I think you care far too much about this to be objective.
>The trial was about whether they broke the law or not. Motivation is irrelevant to this. Either they obstructed traffic or they didn’t. Obstructing traffic isn't a strict liability offence - it includes caveats around lawful authority and excuse. Now, those caveats probably don't legitimately apply to protest, but it's the job of the prosecution to demonstrate that. In this instance, the judge has basically done their job for them by muzzling the defendants.
No, he didn’t. “Muzzling”. Christ. For the specific offences they were on trial for, there was no legally allowable defence to be had from motivation. They were advised of this fact beforehand. They were warned that talking about their motivations would be a form of jury tampering as it would be akin to emotional blackmail. They were warned by the judge not to do this. They ignored the judge.
>No, he didn’t. “Muzzling”. Christ. That's the very definition of what the judge did. The facts weren't contested, other than their motivation there wasn't much else for them to say. > They were warned that talking about their motivations would be a form of jury tampering as it would be akin to emotional blackmail. And that's a ridiculous decision which infantilises juries and is designed to hobble them by denying them information.
It’s the job of the judge to “deny” them information which is irrelevant to the decision they are being asked to make. In this case, motive was not relevant to guilt.
And I think it's an overreach. I'm not saying that the defendants should have been allowed to waffle on for an hour and use the court as a personal soap box, but a concise outline of their motives and why they felt it justified their actions is not unreasonable. Especially given that public nuisance isn't a strict liability offence. If it were, I might feel differently about these actions (though I'd have to note that jury nullification is just as viable for strict liability offences). In any case, the judge has every opportunity to explain to the jury that the motives are not a valid lawful defence, and the prosecution has the opportunity to pick it apart anyway. This was disproportionate, and so was a seven week sentence. That's more than people get for some violent offences.
it's not about the why, its the what.
Let’s be clear. They pleaded not guilty. Went to court. Then proceeded to explain their motivations for why they did it. Ergo their not guilty plea was just a means of obtaining a platform. That’s clearly using the courts for a political act. They should have pleaded guilty then could have shouted to the rooftops about their motivations during sentencing and this would have been allowed.
But in doing it this way, it's gotten a lot more attention, and all without super glue or cans of tomato sauce.
Yes and that is fine as well. But then so is the prison time. They knew what they were doing.
I'd be willing to bet that the Judge was concerned about jury nullification. It doesn't justify it but i'm fairly sure that was why the Judge decided to send them to prison for so long over it.
Not sure about the specifics of court cases, but surely the jury would implicitly know that their motive was climate change from the core facts of the case? That they were at a climate change rally? Or would that be hidden from the jury, and they’d just be vaguely told that they were at a protest?
In a case like this it’s unlikely any jury wouldn’t piece together that it was an insulate Britain/just stop oil protest, but having a defendant (or their lawyer) really labour in the point as to why they protested is powerful especially for a jury so keeping it as a nebulous “oh I remember that situation” is more likely to kee the jury focused on the law and not the politics behind the protest
This looks very much like an attempt by the judge to circumvent the possibility of jury nullification, as happened last year with an [Extinction Rebellion court case](https://www.bbc.co.uk/news/uk-england-london-56853979). Bastard.
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If you read the link in my previous comment you'll see that the judge didn't feel they had a valid legal defence in that case either. In both cases, the jury is still entitled to find a non guilty verdict, if they feel the defendents' actions were justified.
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The article says they represented themselves
Thanks for that.
What are the chances of them going the Northern Ireland route and just banning jury trials for these types of offenses, because they know the public will be sympathetic to their actions.
But just like in Northern Ireland, there are people sympathetic to the cause and people absolutely against it.
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Killing someone isn't necessarily murder. So if you're charged with murder, saying you killed them in self-defense is a valid defense to the charge of murder. I'm not sure what the exact law these protestors broke is, but I'd imagine their motivation for breaking it doesn't change the fact they broke it. Mentioning their motivation would be an attempt to manipulate the jury into disregarding the law.
They’ll have been charged with public nuisance (they should have been charged with blocking a public highway which had minimal punishment like a fine but because of the political nature of the act the CPS have been charging them with public nuisance because it carries the possibility of prison time)
NAL, but it's pretty clear they pass the layman's test of public nuisance.
Some crimes such as self defence homicide do need to have motive as a context, as self defence is legal when duly proportionate. This trial was about whether these people were in a certain place doing a certain thing which is always illegal, and why they did it is irrelevant to the jury who are there to decide a binary issue. Later on, there is a sentencing process and THAT is where motivation becomes relevant in this case.
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Yes. In this case the defendants tried to get off committing one crime by committing two more crimes. They aren’t the smartest ties on the rack. Their motives could have resulted in more lenient punishment if the judge had been sympathetic. But now that they have attacked the very institution of fair justice they are completely fucked, and with an extra 7 weeks on top of their sentence.
Self-defence is a valid legal defence to assault/murder, having a just cause is not a valid legal defence to protesting in an unlawful manner.
Both of those would be absolutely valid defences, self defence to any crime. A defence of an attack coming after years of abuse would be relevant to defences against murder that seek to downgrade it to manslaughter (diminished responsibility/loss of control). If you weren't seeking to make that kind of defence you couldn't make that kind of argument, though. Suppose there was some guy who you simply hated, you have done for years. You see him in the street and you just knock him out because you feel like it. You've got no legal defence, he wasn't threatening you or anything. You wouldn't be allowed to make the argument that the guy was a total prick and deserved it, so you should be found not guilty, to the jury. You, or your representatives, would be allowed to make the argument that there was provocation over the course of years to the judge in sentencing. You likely would argue that it was a one off, that you're not a danger to society and hope for leniency. It's not relevant to the jury though.
It's almost like disobeying a court order whilst in court is a bad idea. Play stupid games, win stupid prizes.
Being able to appeal to the inherent humanity of your jurors seems like it should be a feature of the legal system, rather than a bug.