Climate Defence – a Wild Way Forward

7 January 2011 by

This week 18 defendants were sentenced after being found guilty of conspiracy to commit aggravated trespass. Guest blogger Eleanor Cooombs of Wild Law reports.

Their crime was to attempt the shut-down of Ratcliffe-on-Soar, the UK’s third largest coal-fired power station. Yet, they argue that they are not criminals but defenders of the very future of the planet.

Their defence raised the argument of necessity which makes it excusable to commit an act which would otherwise be a crime, in order to prevent death and serious injury. A classic example is that it would be legal to break the window of a burning house in order to save the life of a child who was inside it. The defendants posited that they were acting to prevent the greater crimes of death and serious injury caused by climate change. They hoped their actions would prevent around 150 thousand tonnes of carbon emissions from being released into the atmosphere and would draw attention to the ‘failures of our present political system’ -the perceived lack of government action towards meeting its legal duty to cut emissions by 80% by 2050.

Climate activism has swept the UK since 2008-we have seen the trials of the ‘Climate 9’ , ‘Drax 29’  and Kingsnorth activists . The trial of 17 people who temporarily shut down Manchester Airport begins in February . Yet the legal system has failed to distribute even justice. In the Ratcliffe case the activists’ defence of necessity failed , whereas in the Kingsnorth case, the jury acquitted the defendants. Mike Schwarz suggests that juries are less concerned with future generations and the world community in these economically austere times . However, it cannot be acceptable to have such different outcomes based on the changing moods of juries.

The time has come for a radical re-think about how we frame our laws to reflect our concern as a society about climate change and its impact on future generations.  A dialogue needs to take place to decide who are the real criminals in this arena. A growing number of lawyers and others are involved in the international Wild Law movement which seeks to shift laws away from an anthropocentric approach, and to promote law which supports, rather than undermines, the environmental integrity and health of the Earth . Wild laws could grant legal standing for parts of the natural environment in the UK, as has been seen in other countries . It is time to take collective responsibility and to use the law to protect our planet.

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  1. This is just the tip of the iceberg so to speak in the
    British justice system. Thousands of remand inmates await their
    obvious declaration of innocence, which often results in their
    arbitrary continued denial of bail based on false claims by
    inordinate perpetual arrest, prosecution and judicial bias in
    favour of a system that keeps the weak incarcerated for long
    periods of time without the slightest regard for their civil
    liberties. (the fact that they would raise hell at the prospect of
    their family members falling fate to these circumstances is of no
    consequence) Meanwhile the prosecutors and defence milk a legal aid
    pot. The environmental activists in this case are fortunate they
    were on bail. I know of cases where individuals have been held in
    custody for nine months thereafter in a 15 minute court appearance
    they were told there was ‘no case to answer’ This strengthens the
    argument in support of grand jury’s. Dr. Iverson Taylor

  2. James Wilson says:

    Ms McDonald: I think you will find the UK system of
    government, for all its (many) flaws, to be more democratic and
    more respecting of freedom of speech, the right to protest etc than
    the vast majority of countries in recorded history, including the
    present day. You could stand for election on constitutional reform
    as well as climate change if you were so inclined. By contrast
    China, who emits far more CO2 than us, seems rather less impressed
    with those notions of rights and freedoms and democracy. The sad
    thing is that if the UK became carbon neutral overnight China alone
    would make up the difference within two years, never mind the US,
    Russia, Brazil and others. I’m afraid what the UK says and does is
    of very little consequence if all the worst scare stories about
    climate change are true. Which is by no means to suggest we should
    do nothing about our energy policy, quite the reverse: all the
    cheap sources of oil and gas are being bought up by the Chinese and
    others, so we won’t be able to afford our the present lifestyle
    even if we disdain the environmental effects (and we should not
    disdain them). All these matters are, however, for public debate
    and the ballot box. People have a right to lawful protest, but if
    they commit criminal damage in the course of it, then they should
    be tried and, if the case is proven, convicted accordingly. That
    they might have acted out of what they believed to be altruistic
    motives is a matter relevant only to sentencing, not conviction.
    The necessity defence would fail: the effect on the climate (given
    the UK’s contribution) would be minimal to say the least; on the
    other hand, cutting power to a region might actually have fatal
    consequences (eg a hospital mid-operation). As others have pointed
    out, there are a fair few religious zealots, political extremists
    and others out there who are just as convinced of the urgency,
    importance and fundamental righteousness of their cause as
    environmentalists; if they were all permitted to break the law the
    result would be chaos.

  3. Melanie Strickland says:

    Well done Eleanor for writing this piece! I for one support
    the view that civil disobedience can be justified in certain
    circumstances. Civil disobedience to raise awareness of man made
    climate change, which is violating the rights of many and
    destroying precious ecosystems and habitats – is a cause worthy of
    civil disobedience. The idea that we should only seek to make
    changes by standing for an election fails to recognise that our
    planet is in a state of ecological crisis. Civil disobedience is
    not the same as anarchy as the previous entry suggests (read the
    relevant section in John Rawls ‘A Theory of Justice’ for a rational
    account of civil disobedience). Gandhi also said that the voice of
    conscience is a higher law than man-made law. The protestors in the
    Ratcliffe case were non violent and the judge acknowledged that
    they were acting selflessly and with integrity. Wild law advocates
    rights for nature and I encourage those interested to read more

  4. Marc Daniels says:

    Yes, what a brilliant idea. Let’s replace our flawed democracy with a society where anyone – , whether Left or Right, Christian or Muslim, hunt saboteur or hunter, simply breaks laws they don’t like. That’s bound to work well.

    Let’s also forget everything Gandhi and Martin Luther King ever wrote about civil disobedience. Trying to actually persuade people is soooo boring – the normal political process is too much like hard work. And having to calmly face the consequences of your actions and accept jail time – that’s just so 1960s.

  5. ObiterJ says:

    That a defence of “necessity” exists in English law is, as far as I know, generally accepted these days. In Hasan [2005] UKHL 22, Lord Bingham said:

    “The only criminal defences which have any close affinity with duress are necessity, where the force or compulsion is exerted not by human threats but by extraneous circumstances, and, perhaps, marital coercion under section 47 of the Criminal Justice Act 1925.”

    Judges appear to have tried to keep the defence within very narrow limits. Perhaps Dickson J in the Canadian case of Perka v The Queen 1984 came closest when identifying the necessary conditions as including “urgent situations of clear and imminent peril” in which “compliance with the law [would be] demonstrably impossible”.

    Breaking the window of the burning house to rescue a child known to be in there is perhaps a good example.

    The power station protesters planned a trespass with a view to disrupting activities there. They would also have known that their actions would obtain publicity for their “cause” and it has indeed achieved this. However, there is nothing like the immediate imperative to act in a way which breaks the law which would justify a defence of “necessity.”

    Having said all of this, I have political sympathy with their views. British governments have known for years that – (a) the UK will face a serious power crisis unless action is taken to acquire new power stations and (b) that the continuance of fossil fuel burning cannot be the way of the future.

    We cannot turn the clock back to some kind of “non-electric” society and so, for a sustainable future, power generation will be vital. However one analyses this problem, there seems to be only the nuclear power option which has the capability of generating all the power needed. [Sea power might be either an alternative or a major supplement]. Of course, to say “nuclear power” raises the spectre of further protests.

    Regrettably, rational debate in this area is very difficult but it is time that such debate took place and it is time for politicians to lead that debate. Unless and until they do so people will view that political process as a waste of time and protest will continue.

  6. Moira Macdonald says:

    Dear Mr Daniels,
    which democracy are we living in of which you speak as arbiter?

  7. Marc Daniels says:

    How about a completely different proposition: we live in a democracy and if individuals or pressure groups wish to change the law (on energy or anything else) they are free to stand for election on that platform. What they are not free to do is try to sidestep the democratic process by taking the law into their own hands, and then avoid the consequences of their own actions by bogus legal defences.

  8. Moira Macdonald says:

    Do I agree? Do I! …busy spreading the word re your blog
    on my Facebook…

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