Ratcliffe climate change protesters acquitted on appeal

20 July 2011 by David Hart KC

Barkshire & others v. R.     Read Judgment

The remaining Ratcliffe on Soar climate change prosecution reached the Court of Appeal on Tuesday, and led to appeals being allowed today. We have covered this trial, here and here, most recently on the collapse of a second prosecution after the revelation of activities by an undercover police officer.

The Court of Appeal was very concerned by the lack of disclosure given by the prosecution concerning the undercover police officer, and it was this which ultimately led to the convictions being quashed. But the judgment is not all good news for climate change protesters, as we shall see.

It was originally intended that there would be two trials of those involved (or said to be involved) in the plan to shut the power station down for a week. The first trial took place in November 2010, and led to the conviction of 20 defendants including Barkshire; these are the defendants who have just had their convictions quashed. The second case, involving 6 defendants who said that they had not yet made their minds to join the plan, was due to be tried on 10 January 2011. On 7 January, they were told that the Crown had decided to discontinue the case, as previous unavailable material that significantly undermined the Crown’s case had come to light. In March 2011, Clare Montgomery QC reviewed the convictions in the first case, and advised the Crown that the safety of the convictions should be considered by the Court of Appeal as soon as possible. The DPP told the defendants’ advisers of this, and handed over a copy of Mongomery’s review – on which the appeal was duly based.

The nub of it was this. The undercover police officer, Kennedy, started playing more of a role than the observer which he was supposed to be. He agreed to play a part in climbing the chimney at the power station, and agreed with other protesters to be responsible for checking the surrounding area for possible police activity – an ironic task in the circumstances. He appeared as an enthusiastic supporter of the proposed occupation of the power station, and, arguably, as agent provocateur. The importance of all this would have been to a potential submission that the prosecution was an abuse of process – which, if successful, would entitle the defendants to be acquitted even if they were strictly guilty of the underlying offence.  Tape recordings made by the officer evidenced the genuine concerns of certain defendants that the temporary closure would lead to an enormous reduction in carbon emissions. This was  enough to rebut (a frankly silly) contention by the Crown at trial that the whole thing was a mere publicity stunt – i.e. the defendants did not genuinely believe in the benefits of  stopping the 150,000 tonnes of carbon which would normally go into the atmosphere from the power station. After the defendants and Kennedy had been arrested, Kennedy was party to an email address through which campaigners shared information (some of which was privileged) about the progress of the  information.

None of this came out at trial. Hence, there was a formidable case, accepted by the Court of Appeal, that the trial had been vitiated by non-disclosure of information.

So what then is the downside of the judgment for supporters of direct action? At a pre-trial hearing, Flaux J had given two rulings favourable to the defence. First, he said that the defendants were entitled to argue at trial that their intended conduct was justified or excusable on the grounds of necessity or duress – because they were impelled to act as they did to prevent imminent death and serious injury to others as a result of burning coal and its resultant emissions. Second, they could say that they intended to use reasonable force to prevent various crimes including public nuisance and various wildlife offences (being consequences of those emissions.) The Crown did not appeal these rulings. And the trial then duly proceeded on that basis.

The CA said, whilst it was not appropriate to go behind Flaux J’s ruling:

Neverthless we entertain reservations about it. The circumstances in which what would otherwise amount to criminal conduct may be justified on the basis of the honestly held, political beliefs of the perpetrators, will need reconsideration in this court on another occasion.

The CA could not help observing that Flaux J “found himself unable to follow” observations of Lord Hoffman in R v. Jones (Margaret) (approved by 3 other members of the House of Lords) – concerning Iraq war protesters

In a case in which the defence requires that the acts of the defendant should in all the circumstances have been reasonable, his acts must be considered in the context of a functioning state in which legal disputes can be peacefully
submitted to the courts and disputes over what should be law or government policy can be submitted to the arbitrament of the democratic process. In such circumstances, the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest, cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury.

So a warning shot from the CA that the next climate change courtroom battle may not be fought on such favourable legal turf as this one was.

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