Tony Greenstein | 10 April 2023 | Post Views:

We should not forget that Democratic Rights were Won in the Teeth of Opposition by a Reactionary Judiciary

Contempt For Justice

Today in Britain we have an unpopular Government and an almost equally unpopular Opposition, both of which agree on the need to curtail democratic rights and direct action. As environmental disaster beckons, we have a government intent on ramping up carbon emissions by approving of new oil fields in the North Sea.

Their answer to direct action protests is not to change course but to attack the right to protest. The judiciary, which likes to think of itself as independent, has joined forces with the Executive.

As groups like Extinction RebellionClimate Action and Just Stop Oil take direct action in response to the climate crisis, the government, in hock as it is to the oil industry, has resorted to repression.

First there was the Police, Crime, Sentencing and Courts (PCSC) Act and today a Public Order Act which puts greater power in the hands of the same police forces which are riddled with corruption, rapists and racists (in no particular order).

This legislation was preceded by the Overseas Operations Bill which made it much harder to prosecute British personnel for serious crimes – including torture – overseas as well as the Covert Human Intelligence Sources (Criminal Conduct) Bill (Spycops Bill) which was even more abhorrent. It granted a host of state agencies the power to commit grave crimes with legal immunity. This is a giant leap forward to a police state yet British judges have remained silent.

There was a time, in the 1990s and 2000s when a succession of liberal judges presided over the Supreme Court and as Lord Chief Justice such as Thomas Bingham, described as ‘the greatest jurist of our time’Lord Taylor who presided over the  Hillsborough Disaster Inquiry and uncovered Police malfeasance, Lord SteynBaroness Hale and Stephen Sedley. It is perhaps no accident that Taylor, Sedley and Steyn were Jewish.

Today we have seen a return to a reactionary judiciary under Lord Reed, President of the Supreme Court and the execrable Lord  Burnett who presided over the Assange hearing.

If   Burnett had any integrity he would have recused himself from the Assange case since he is a close friend of former Minister Alan Duncan, who described Assange as a “miserable little worm”.

Assange is a litmus test for the judiciary. He has been imprisoned for four years, without charge because of an extradition request from the United States. His only offence being to reveal multiple war crimes.

This is not my paranoia. Last year The Economist published Britain’s Supreme Court takes a conservative turn. Prospect Magazine carried The government wanted to rein in the Supreme Court. Now it may not need to. After the backlash from the right-wing press and the Mail with its ‘Enemies of the People’ headline, when the Supreme Court rejected Johnson’s prorogation of Parliament, the Judiciary have unilaterally surrendered to the government.

The Supreme Court’s shameful decision on Shamima Begum, which was contrary to international law on statelessness was one indication of the new ‘security minded’   court.  In another decision, where two mothers challenged the government’s decision to restrict tax credits and universal credit to two children, Reed went out of his way to attack those bringing the action.

Nicholas Reed Langen lamented the “trend towards deference.” This is the political backcloth to the attack of government and judges on the right to protest. This increasing judicial reaction occurred as juries have been returning what the Right see as authorities are ‘perverse verdicts’ of  ‘not guilty’ against direct action protesters.

The Establishment was outraged by a Bristol jury which acquitted those who dumped the statue of Edward Colston, a mass murderer and slave trader, into Bristol harbour. The government sought ‘clarification’ from the Court of Appeal as to whether defendants could cite human rights in their defence in a case of criminal damage.

One wonders whether the judges would have approved of a statue of Hitler being erected in Golder’s Green yet the Court of Appeal found that human rights defences should only be considered by courts in protest-related cases if the damage is ‘minor’ and ‘low-value’. It thus put a threshold on when people can enact their human rights.

The affront to Black British citizens never crossed the minds of these miserable judicial wretches who knew the price of everything and the value of nothing. The courts have always prioritised the needs of property over people. It was another reactionary judge Lord Denning who ruled in LB Southwark v Williams that

“necessity would open a door which no man could shut…If hunger were once allowed to be an excuse for stealing the plea would be an excuse for all sorts of wrong doing. The courts must take a firm stand.”

The ruling by the Court of Appeal found expression in the decision of Judge Silas Reid in climate change cases to gaol for contempt defendants who mentioned why they took direct action. This has meant that people are unable to put forward any defence and is clearly contrary to Article 6 of the European Convention of Human Rights:

In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent
and impartial tribunal established by law.

It is also contrary to Article 50 of the EU Charter of Fundamental Rights, the right not to be tried or punished twice in criminal proceedings for the same offence.

It is or should be obvious to all except the most narrow minded judge that if you can’t say why you are innocent the trial must be unfair. None of this is surprising since the history of British justice is a history of conflict between protest and a reactionary judiciary.

In Fascist Judges Craig Murray described how in Irmtrud Wojak’s biography of Fritz Bauer, a concentration camp survivor who became the most important prosecutor of the Nazis in Germany, Bauer detailed how the Nazis didn’t have to find their own judges. Most of the German legal establishment had simply adapted themselves to applying Nazi laws.

It was one of the scandals of the post-war Federal Republic of Germany that judges who had served the Nazis so well continued in post. Does anyone seriously believe that if a fascist regime arose in Britain that the judges would defend our rights? Craig wrote how

The current legal establishment will adapt themselves to the legal framework of whatever sort is ordained by the rulers. Anybody expecting judges to defend liberties is likely to be sorely disappointed. They will happily remove the ability of juries to defend liberty too.
Judge Silas Reid – a model fascist judge

Silas Reid would have no difficulty in becoming a model Nazi judge, dispatching a British Sophie Scholl to the guillotine or gallows.

Sent to prison by Silas Reid for trying to “tell the whole truth”

David Nixon

In October 2021, David Nixon took part in an Insulate Britain roadblock whose aim was to arouse the public and media to the need to insulate homes, to tackle fuel poverty and reduce carbon emissions.

Six previous trials of people involved in similar actions had ended in two acquittals, two guilty verdicts, and two deferred (in one of these the Judge asked the prosecution whether it was in the public interest to continue).

Protesters are being tried for the ‘archaic’common law offence of causing a public nuisance. Silas Reid told the defendants at Inner London Crown Court that while they might genuinely believe that they had been performing a public good and not a public nuisance jurors should not take their motivations into account.

Appearing at Inner London Crown Court with three others, Nixon was warned by Silas not to mention climate or fuel poverty during the trial. In response to an accusation that 8,500 people had had their bus journeys disrupted Nixon told the jury that coincidentally 8,500 people had died that same year as a result of fuel poverty.

Silas Reid cleared the court and demanded Nixon apologise. As Reid directed the jury to leave the court, Nixon continued:

That’s before moving on to climate change. Posters around the court building are saying that we are on a highway to climate hell with our foot on the accelerator.

“You’ve not been able to hear these truths because this court has not allowed me to say them. Our safety is at risk, our society is at risk.

“I have only one apology: that Insulate Britain did not get our demand met.”

When he refused to apologise on the grounds that his duty was to ‘tell the whole truth’ he was sentenced to an eight-week prison sentence for contempt of court. Reid has been accused of “stripping away” protesters’ legal defences following the sentencing of Nixon because he defied Reid’s instruction not to cite the climate crisis as motivation for his participation in the same Bishopsgate roadblock in 2021.

After the jury returned, Reid told them to disregard Nixon’s statements. Reid told jurors:

This is not a trial about climate change, fuel poverty, etc. Matters relating to that are not relevant to your deliberations, no matter how much Mr Nixon wants them to be.

While the jury went out to consider their verdict, Nixon admitted contempt and declined two offers from Reid to apologise, telling Silas Reid: “I wish I could but I don’t think it would be genuine.”

The jury returned to court and found the four protesters guilty. Nixon was standing trial alongside Kai Bartlett, Alyson Lee and Christian Murray-Leslie. Reid said he would sentence them at a later hearing.

On four occasions, defendants have defied Silas’s instruction in their closing speeches to the jury. Those trials were immediately halted, juries sent out, and the defendant removed to a cell for ‘contempt of court’. In three cases, Judge Reid has then gone on to sentence the defendant to several weeks in prison. Perhaps because of the concerns expressed, he decided to take no further action in the last case. Barrister Paul Powlesland said:

“Judge Reid jailing David for speaking the truth to a jury in his defence is an outrageous threat to some of our oldest and most precious liberties…. If you are on a jury trying a peaceful climate protester, the judge may be preventing them from mentioning the climate crisis in their defence. Remember that you have an absolute right to acquit them on your conscience.

“Such an acquittal cannot be appealed and you will never be asked to explain or justify it…. Citizens pushing back on judges is what has kept the right to jury trial alive over the centuries.”

Several leading lawyers protested outside the court during one of the contempt of court hearings. In an interview Powlesland reminded us about the 17th century Bushel’s case, where a judge locked up the jury without food and water for two days to try and force a guilty verdict, but which ended up setting a legal precedent – the right for a jury to acquit on their conscience. The case is celebrated by a plaque inside the Old Bailey (where it is visible to court users, including jurors).

Former Barrister Tim Crosland, who himself has been disbarred for telling the truthsaid:

“The British courts have lost the plot. Infuriated by the habit of juries acquitting climate protestors, a new policy has been adopted in which the judge bans climate protestors from referring to climate change during their trial, and when the defendant honours their oath to tell the whole truth and explains to the jury why they did what they did, the judge holds them in contempt of court for defying their gagging order.”

Amy Pritchard & Giovanna Lewis

Giovanna Lewis, 65, from Dorset; Amy Pritchard, 37, from London; and Paul Sheeky, 46, from Warrington, were accused of blocking a major junction in central London on 25 October 2021 at around 8am. All three denied the charges.

The jury heard that 25 arrests had been made that morning as protesters lay in the road while others glued themselves to the ground, bringing rush hour traffic on Upper Thames Street and Bishopsgate to a standstill that lasted hours.

In his opening address Reid warned that the defendants had hoped being able to talk about climate and ecological crises as motivation for their actions would “touch people’s hearts” and bring morality to proceedings. Reid said:

“It seems to me that the desires of the defendants to speak about the motivations of their actions is that they believe that the jury will look at the case in a moral way rather than in a legal way. That would be wholly wrong.”

This is an amazing statement that confirms that judges like Silas Reid live in an ethical free zone devoid of all morality. See ‘For history to judge, not the jury’: judge rules climate crisis ‘irrelevant’

This latest crackdown followed a ruling by the Attorney General after the Home Secretary’s appeal against the acquittal of the Colston Four (who toppled the Bristol statue). The Attorney General’s ruling, along with the earlier Ziegler ruling, restrict the defences available to someone accused of protest-related charges such as criminal damage or public nuisance, ruling out any balancing exercise relating to human rights or any defence of ‘necessity’ (attempting to prevent a greater evil).

Although there is some leeway for judges to decide how much a jury can hear from defendants, protest trials often begin with legal arguments where the prosecution ask the judge to rule out all such  defences at the start of the trial, while defence lawyers argue the jury should hear them. The judge can also direct the jury at the end of the trial to ignore elements that are deemed irrelevant in law.

Real Media reported the five-week trial of Burning Pink activists during which evidence of the extent of the climate crisis was heard. All but two out of 20 charges against 12 people ended in acquittal.

A group calling themselves Fair Justice Project have been posting notices in the streets near the Old Bailey displaying legal information about the right for jurors to acquit on their conscience.

The right to acquit on conscience (but the jury mustn’t know)

On the morning of 27th March, retired social worker, Trudi Warner, used similar wording on a banner and stood for half an hour on the pavement of the road leading to the juror’s entrance at the court.

When she returned to court later that week, she was ambushed by police and arrested for contempt of court. Held in a cell for the rest of the day, she appeared before the British version of Roland Freisler, President of the Nazi People’s Court, at 5pm and told she must appear at the Old Bailey on 4th April for contempt proceedings (“contempt in the face of the court attempting to influence the jury”).

After hearing from her solicitor, Mr Justice Cavanagh gave his decision that:

 “It is not the case in any trial that jurors can acquit by their conscience if by that it is meant they can disregard evidence and directions given by the judge and decide on their own beliefs whether a defendant is guilty of a criminal offence. To do so would be a breach of their jury oath and cause injustices.”  

Cavanagh’s ruling is a clear attempt to roll back the rights of a jury and is indicative of the period we are living in. A jury can acquit for any reason whatsoever. They are not accountable for their decision to anyone. It is clearly stated on the plaque that adorns the Old Bailey, celebrating the decision in Bushell’s that

Chief Justice Vaughan delivered the opinion of the Court which established “The Right of Juries” to give their Verdict according to their Opinions.

Either Cavanagh is an ignorant bigot or he is determined to overturn a celebrated decision of over 500 years standing in the  Judges’ attempt to bow the knee to the present Tory Government. (see below)

Cavanagh ruled that the case should be referred to the Attorney General. In the meantime, appeals have been lodged in relation to several of Reid’s Insulate Britain trials and several trials scheduled for after Easter have been deferred until those appeals are decided.

A woman who attended in support, was arrested at the Old Bailey for allegedly “attempting to pervert the course of justice” in connection with putting up a poster near Inner London Court. If anything it is Cavanagh and Silas Reid who are guilty of attempting to pervert the course of justice.

Bushel’s case sets a so-far inalienable right in law. So the question is, where can it be legal to display a banner celebrating this case, and more importantly, where and why could it NOT be legal to display this tenet of British law?

Hidden forces pushing change in our democracy and rights, exposes some of the power and money behind the recent crackdown on protest rights. See also Climate protester confronts judge over ‘amoral’ order on what jury could hear

Another road-blocking protester who could face jail confronted Silas Reid over the decision to ban him from mentioning his climate-related motivations to a jury. Stephen Pritchard used his speech ahead of his sentencing to condemn the order made by Silas Reid:

I think that your rulings were amoral; I believe also they were irrational given the situation that we’re in

The Buddhist and former parish councillor appeared at Inner London Crown Court alongside former probation officer Ruth Cook, 71, gardener Roman Paluch-Machnik, 29, and carpenter Oliver Rock, 42.

All four were convicted by a jury of causing a nuisance to the public by obstructing the highway after they stopped traffic at Junction 3 of the M4 on October 1 2021. Insulate Britain said they are the first protesters to be convicted of causing a public nuisance – a common law offence which carries a maximum penalty of life imprisonment.

Silas Reid had ruled that they should not mention their climate motivations during their trial, but asked them to “concentrate as much as possible on motivation” in their speeches ahead of sentencing. He told them:

“Blocking the road in the way you did, if it was done for no reason, is a serious matter and would result in a prison sentence.”

Addressing Reid, Pritchard said:

“People’s lives are being lost. The only possible way I could imagine stopping peaceful civil resistance in this context is for you to tell me that this country has stopped pumping greenhouse gases into the air.

“I’m well aware of what prison is like, having been to prison. It’s not a very nice place. But I feel like I’m already a prisoner of my conscience.”

Cook said she had spent decades “upholding the law” but resorted to disruptive protests so she could “look her grandchildren in the eye”.

Speaking about Silas Reid’s imposition of limits to their defence, the grandmother from Frome gestured to the jury bench and said:

I’m really aware of those empty seats. I am going to say things now that I wish they would have been able to hear, so that they weren’t discussing traffic data and listening to boring statistics about traffic, but knew why we did what we did.

Cook, who is also a Quaker, said her work delivering aid in Africa on behalf of Oxfam and the Refugee Council and seeing climate refugees on the continent

“changed me fundamentally. I saw the impact that the climate emergency was having on their lives

The defendants also mentioned the impact the campaign had had on their friend Xavier Gonzalez-Trimmer, who killed himself after spending time in prison over an Insulate Britain protest. Pritchard said:

“He was a brave, gentle and caring human being who could see the future we were facing and was desperate to do something about it, and now he’s dead.”

Paluch-Machnik used his speech to highlight the impact of climate change, adding: “This isnt a belief system of mine, this is a measurable process.” The four will return to the same court for sentencing by Silas Reid.

The Rights of A Jury and Bushel’s Case 1670

Prior to Bushell’s Case, for nearly four centuries, jurors had been subject to coercion, fines and imprisonment if they disregarded the wishes of the judge. The jury was not independent as it is today, but more a ventriloquism act, “the judge with thirteen voices” any time the judge wished to determine the verdict. The grandfather authority for the coercion probably was a case in 19 Edward III (1346), which suggested that jurors “might be dragged about in carts at the tail of the [Circuit] Justices from assize-town to assize-town until they could make up their minds”. [The Four Jurors in Bushell’s Case, Wilmer G. Mason, American Bar Association Journal, JUNE 1965]

In August 1670, William Penn, who went on to found Pennsylvania, and William Mead were charged with “unlawfully and tumultuously” assembling to preach and speak during a Quaker worship session on London’s Gracechurch Street. The jury found them not guilty. The outraged judges, the Mayor and Recorder of London, refused to accept the decision and told the jurors to keep deliberating. The jury was sent back with the warning that

“you shall not be dismissed until we have a decision that the court will accept; and you shall be imprisoned up, without meat, drink, fire, or smoke…. With God’s aid, we’ll get a decision, or you’ll starve to death.”

The jury returned two days later, finding both defendants not guilty. For contempt of court, the judge fined them. One of the jurors, Edward Bushel, refused to pay the fine required for his release. Instead, he petitioned the Court of Common Pleas for a writ of habeas corpus, contesting the legality of his detention. He was released two months later after the court approved the writ.

The case of Bushel resulted in a landmark ruling on the role of jurors. Lord Chief Justice Vaughan declared the fines and imprisonment imposed unconstitutional and held that a jury could not be punished for its decision, effectively ending judges’ ability to control verdicts based on political whim and establishing the jury’s independent power. Bushel’s Case established the concept of jury nullification, in which a jury overturns an unconstitutional statute by declaring a defendant not guilty, regardless of whether the jury believes the prisoner is guilty precisely by the wording of the law.

Lady Justice Hallett Blackstone Lecture  on Trial by Jury.

In May 2017, LJ Hallett gave an interesting lecture on the role of the jury. For Lord Camden it was ‘the foundation of our free constitution’. For Lord Eldon the ‘greatest blessing which the British Constitution had secured to the subject’. For Lord Devlin, ‘the lamp that shows that freedom lives.’ For Lord Judge, ‘a safeguard against oppression and dictatorship’.  Blackstone refers to it as “the sacred bulwark of our liberties.” Thomas Erskine said that

 ‘Criminal justice in the hands of the people is the basis of freedom. While that remains there can be no tyranny, because the people will not execute tyrannical law against themselves. Whenever it is lost, liberty must fall along with it. . .’

Similarly, in the early nineteenth century, people were still being hanged for sheep, horse and cattle stealing and for robberies to the value of 40 shillings – raised in 1827 to £5. Juries deliberately undervalued goods stolen to avoid sending offenders to the gallows.

Heather Hallett stressed in her lecture that a jury may refuse to convict in spite of the law and the evidence because it concludes that the law is an unjust law. The jury passes its verdict on the law. Secondly, it ensures that the prosecution and the judge are on trial. Hallett went on to quote Professor Michael Zander that the jury can set aside ‘unjust laws, oppressive prosecutions and harsh sentences.’ 

Hallett gave the example of the case of Dr Leonard Arthur a highly respected consultant paediatrician who, as he saw it, put the interests of his patients and their parents first. John Pearson was born with Down’s syndrome and abnormalities of his lung, heart and brain. Dr Arthur wrote in the case notes, “Parents do not wish the baby to survive. Nursing care only.”

Despite what to the lawyer may have appeared a confession to the charge of attempted murder, the jury acquitted him. Their verdict has been construed as a refusal to convict a doctor of murder for ‘allowing a severely handicapped baby to die’ even if the law was against him.

The case in 1985 of Clive Ponting, a civil servant, was another example. In the judge’s view he had broken the Official Secrets Act by passing on secret information to a politician but the jury refused to convict, upholding his claim that disclosure was in the public interest.

To again quote Hallett, the jury

is a check against the authority of government and Parliament, which ensures that they take heed of the judgment the public passes on what they do. It is the means by which individuals can ‘feel that the law is theirs’, that the law reflects and continues to be consistent with the ‘attitudes and mores’ of society generally.

Lord Sumption: civil disobedience has begun

The views of Lord Sumption, a member of the Supreme Court between 2012 and 2018 on civil disobedience are also interesting.

Sometimes the most public spirited thing that you can do with despotic laws like these [COVID laws] is to ignore them. I think that if the government persists long enough with locking people down, depending on the severity of the lockdown, civil disobedience is likely to be the result. … whatever Mr Hancock says. People are doing that to some extent already.

Sumption went on to say that :

“I feel sad that we have the kind of laws which public-spirited people may need to break. I have always taken a line on this, which is probably different from that of most of my former colleagues. I do not believe that there is a moral obligation to obey the law… You have to have a high degree of respect, both for the object that the law is trying to achieve, and for the way that it’s been achieved. Some laws invite breach. I think this is one of them.”

I point these divergent views out, even amongst the judiciary because there is now a clear attempt to suggest that the powers of the jury are confined within the limits that a trial judge sets. There are many instances when, in order to achieve social change or achieve the abolition of a bad law, it was necessary to break the law.

Rosa Parks sitting in the bus

Rosa Parks by breaking the law on segregation helped change the law when she refused to give up her seat for a white man.

Hallett’s observations are the answer to those who say that a jury must blindly follow the law, or the Judges’ interpretation of the law. There are times when an oppressive law deserves to be broken. The Poll Tax was an obvious one. Let us not forget that hiding Anne Frank was against the law whereas deporting her was legal.

In June-July 1945, the London Conference preceded the Nuremberg trials of the major Nazi war criminals. The Conference created effectively a new law, Crimes Against Humanity. Under the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal. London, 8 August 1945

‘Individuals would be responsible for the perpetration of war crimes irrespective of ‘whether or not in violation of the domestic law of the country where perpetrated.’

This was the answer to the defence of Goering, Streicher & co. that they were only obeying orders.

The Suffragettes (dramatisation) | History – Tales from the Old Bailey

The suffragette’s breaking of the law in order to reform the law was another. They were told, by the prosecuting barrister in the BBC’s reconstruction of a trial that:

Suffrage is not the issue, it is the criminal behaviour of the suffragettes and their incitement to partake in militant activity at which 54 windows were broken

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Tony Greenstein

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