Holding a placard outside court isn’t illegal, judge rules – is that the best British democracy has to offer?

The UK High Court recently dismissed the case against environmental activist Trudi Warner, who was referred for contempt of court in March 2023. Civil liberties campaigners hailed the decision as a “huge win for democracy”, but is it?

Warner had stood outside the Old Bailey, England’s most important criminal court in central London, with a sign that read “Jurors have an absolute right to acquit according to their conscience”. She did so at the start of a trial of climate activists who had been charged with public nuisance for obstructing traffic. Warner’s sign paraphrased the text on a plaque on display at the Old Bailey itself.

Known as jury equity, the legal principle evoked by this statement dates back to 1670 and is often cited, not least by leading legal figures and in the decisions of the higher courts, as a cornerstone of English democracy: juries can decide according to their conscience, and cannot be bullied into finding as the law dictates.

Indeed, many legal commentators saw the case against Warner as perverse. Since the threat of contempt proceedings was brought by the solicitor general (a government minister responsible for legal advice), Warner’s protest has been repeated outside courtrooms throughout the country at the instigation of campaign group Defend our Juries.

Why have juries became so important for protesters in the UK – and are they any more secure in their right to protest as a result of the High Court’s decision?

Jury equity and protest trials

Among recent protest prosecutions, Warner’s case is unique: as she saw it, her aim was to educate jurors on their rights.

For most non-violent disruptive protests being dealt with in English courts, defendants (like Warner) typically accept they did what they are alleged to have done, but argue they had a lawful basis for doing so. This is the case in many trials, from Extinction Rebellion to Palestine Action.

Over the last five years, this basis has been whittled away through government referrals to the Court of Appeal and decisions by that court which have removed the protection of lawful excuse and necessity defences in protest cases.

Meanwhile, new public order legislation has turned minor acts of disruption (such as occupying the highway) into serious acts of criminality punishable by prison sentences. The Court of Appeal endorsed long sentences for two non-violent activists who closed the Queen Elizabeth II bridge on the M25 in October 2022. Such is the parlous state of the court system following a decade of austerity that judges are under pressure to manage trials quickly.

Warner’s case brings each of these dynamics into sharp focus. Activists now regularly find themselves in court unable to present a defence in law for their actions, but remain committed to justifying them, because being publicly accountable is important to them. The only way they can avoid potentially severe punishments is by persuading juries not to convict them through the sincerity of their arguments and the public utility of their actions.

As such, jury equity is now often their only recourse. But judges, seeking to manage trials, regularly impose limits on what defendants can say in court, and for how long they can say it, particularly when they have no defence in law. In fact, Warner’s action stemmed from the widely publicised rulings of Judge Silas Reid in several Insulate Britain trials, who forbid defendants from addressing the jury on the climate emergency, and imprisoned two defendants for contempt for defying his order.

Restoring faith in British justice?

Does the High Court’s denial of permission to prosecute Warner indicate that the courts now seek to give greater protections to non-violent, disruptive protesters? Warner herself seems to think so, saying the decision “has restored my faith a little in British justice”.

The High Court ruled that Warner’s actions did not meet the threshold for contempt and that it would not be in the public interest to prosecute her. In fact, the court noted it would be “a disproportionate approach to this situation in a democratic society”. This can be read as affirming that protest is central to democratic life, rather than an irritant existing outside of it, and certainly gives some support to Warner’s faith.

But other elements of the court’s reasoning are less supportive. By noting that jurors swear an oath to make decisions according to the law, the court upheld a principle we have seen in numerous climate activist trials: defendants cannot invite a jury to apply the equity principle, nor even to inform them of it. This decision may allow people not involved in a case to do what Warner did, but in the courtroom itself, jury equity is to remain something of a dirty secret to be kept from jurors.

In deciding whether Warner’s actions were sufficient for contempt, the court also made much of her passivity in simply holding her sign; Warner did not attempt to engage with anyone entering the Old Bailey. She was, in both her own words and those of the judge, simply “a human billboard”.

Would the court have decided differently had Warner been more assertive? Where is the line between her permissible actions and those that would be deemed an unlawful hindrance of jurors entering the court?

A closer reading of the judgment suggests that, despite Warner’s victory, little has changed in the law’s view of protest. There is a good chance that Warner’s actions were tolerated for the very qualities that made her case so compelling: through her deliberate passivity, in the eyes of the law, she corresponded to the ideal of how protesters should behave. The court’s decision very much fits with a tolerance only of protest which is not disruptive (and, we might argue, not particularly effective).

It is unlikely then that the Warner outcome signals a return to a more liberal understanding of the role of protest as a democratic right. The court’s decision, if welcome, serves rather to underline how diminished the opportunities for real democratic agency are in Britain today.

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Steven Cammiss is currently funded by the British Academy to carry out observations of the criminal trials of social movement activists.

Graeme Hayes is currently receiving funding from the British Academy to carry out observation of the criminal trials of social movement activists.