Victoria Prentis, the Attorney General and Conservative MP for Banbury, is looking to overturn a defence that has been used successfully by climate protestors and campaigners for Palestine charged with criminal damage, during trials by jury. This defence argues there is a ‘lawful excuse’ for their actions if it can be shown that the organisations affected would have ‘consented’ to the damage, if they were fully aware of the dire consequences of the issues being highlighted. This is yet another example of the ongoing attacks on the right to protest.

Victoria Prentis, who has a long history of voting against environmental protections, has chosen to challenge the decision of a jury in a recent case of a young climate activist, known as C, who was found ‘not guilty’. She is taking a case to the court of appeal today arguing that the defence used at the trial should no longer be available to climate activists and other protestors. The Attorney General cannot challenge a not guilty verdict decided by a jury, but she is allowed to go to the court of appeal on a point of law. She will, therefore, be arguing that the defence of a lawful excuse used by C should not be available for future cases concerned with acts of protest.

Speaking to the Guardian, the woman at the centre of the appeal said: “I was found not guilty by a jury after a long trial. I feel like the Attorney General is trying to retrospectively challenge the jury’s decision. It feels like an assault on the rights of juries to acquit someone having listened to the evidence.”

The prosecution is clearly aware of the power of the arguments that spell out for a jury the reasons why protestors are taking this action. The Crown Prosecution Service had tried to have the consent defence removed in legal arguments before the trial. The trial judge rejected the CPS motion.

In her skeleton argument submitted to the Appeal Court, the Attorney General said the trial judge had erred in law by allowing the issue of belief in consent as an issue to be left to the jury. This position is consistent with Ms Prentis’ voting record on human rights where she regularly votes against any attempts to liberalise our laws.

It has clearly been a very successful defence. Among the climate protesters who have successfully used the argument during the last year, nine were found not guilty of criminal damage at the London headquarters of HSBC bank, and several individuals were acquitted of conspiracy to commit criminal damage arising from their actions at the political party headquarters of the Conservatives, Labour, Liberal Democrats and Greens.

Individuals protesting for Palestine Action were also found not guilty by juries after using the consent defence last year.

The risks associated with this challenge are therefore significant. If the Court of Appeal agrees with Prentis, it could limit the legal defences available to activists and potentially impact the outcomes of future trials. 

Last year, restrictions were imposed on environmental protesters during trials that forbade them from mentioning climate change, fuel poverty or the civil rights movement to explain their motivation for their actions to a jury. Several defendants who defied the rules were jailed for contempt of court as a result.

Recent changes to legislation, including The Police, Crime, Sentencing and Courts Act (PCSC) 2022 and the Public Order Act 2023, mean that people taking part in a protest are already operating in a hostile environment with few rights. The maximum prison sentence for someone who has damaged a statue has been raised to ten years.

The UK has been downgraded in the civic freedoms index known as the Civicus Monitor, describing the environment as “hostile and authoritarian”, citing hostility towards campaigners and the clamp down on public protests as a key indicator.

This has been reinforced by Michel Forst, the first UN Special Rapporteur on Environmental Defenders, who condemned the UK’s use of “draconian” new laws, excessive restrictions on courtroom evidence and the use of civil injunctions to crack down on climate protesters in Britain. He said, “As the world faced a triple planetary crisis of the climate emergency, biodiversity loss and pollution, environmental protesters were acting for the ‘benefit of us all’. They must be protected.”

Victoria Prentis, who recently voted against a ceasefire in Gaza, does not agree. It can only be hoped that the appeal court will not find in her favour. If she is successful, it will mean the removal of the last remaining defence for climate protestors.

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