The precedent of ‘Necessity’.
We continue the strange saga of Gail Bradbrook’s surreal trial. If you haven’t read Part One. here it is!
When the prosecuting counsel questioned why she thought her opinion more important than others’, Gail responded that, “I just want a better apocalypse”.
Ms Wilkinson then exclaimed: “Civil disobedience has consequences”. Gail’s riposte: “Yes, there are times in history where people have to face the consequences. You wouldn’t be standing here as a prosecutor if a suffragette hadn’t broken a window”.
“What you did today was to draw attention to a topic?” … sneered Ms Wilkinson.
Gail interrupted: “This is not a ‘topic,’ it’s about the future of my children”.
“No doubt you acted on your beliefs” interjected the Judge to which Gail replied: “These are not beliefs, they are facts”.
Prosecution: “Who do you think will pay for the windows?” Gail (to applause): “The insurance companies”.
Prosecution: “You are not allowed to cause criminal damage to property. Where would we be if people were allowed to damage property?” Gail: “What about the damage to our common home, our air, water, soil, earth?”
Gail asked why the recording of one of the interviewing officers “choking up” had been edited out of the interview tape. The Judge said: “The officer expressed an opinion which should be ignored”. The implication that a recorded police interview is not reliable evidence will be news to those previously convicted and flies in the face of legal protocols.
Former Barrister, now academic Kate Haworth has written of the aberration when:
“Interview data undergo changes in format en route from interview room to courtroom, substantially affecting the integrity of the evidence. This ‘contamination’ of verbal evidence makes a stark contrast with the forensic treatment of physical evidence, which according to long-accepted principle must be preserved as intact as possible.”
“’I am not crazy, my reality is just different from yours’ said the Cheshire Cat.”
Gail’s central theme, that of Necessity, met with predictable intransigence. Having heard her rehearsal of the well-trod analogy, that her act was akin to smashing a window in a burning house to rescue your family, Judge Edmunds said: “There is no nexus between a window being broken and climate change. The nexus in this case is between a window being broken and drawing attention of others, including police and the media”. Despite being reminded of previous successful cases, not least of all that of XR co-founder Roger Hallam, who had used climate necessity as the basis of his defence on a charge of criminal damage, the Judge merely repeated his claim, metaphorical fingers in his ears, that the defence of necessity would never have been available to cases such as this.
It has, in fact, been a defence available in many key cases since that of the Attard sisters where a moral argument was to be made. Others include that of whistleblower Clive Ponting who, unlike Gail, was allowed to present his reasons for breaking the official secrets act with his revelation that the Belgrano was sunk while sailing away from the Falklands. If he hadn’t, the Government would not have been held to account.
In another case, Lynn Gilderdale was accused of the murder of her daughter but found not guilty when it was deemed to be a case of assisted dying. The Jury had listened to wider evidence and context and the Judge thanked them for their humanity.
However, it seems now, as Judge Silas Reid made clear in a previous case under the new restrictions, the law does not concern itself with morality, much less humanity.
When Gail hinted to the Jury that she had been prevented from stating her case due to changes in laws relating to protest, the Jury submitted a request for clarification. While they were out the Judge ruminated on the bind he was in: that to answer, he would himself break his own injunction.
“Alice sighed and gave it up. ‘It’s exactly like a riddle with no answer!’ she thought.”
Judge Edmunds concluded: “The law is for me to explain”.
Gail sought to argue the point from the perspective of the Jury:
“As Sir Patrick Devlin wrote in 1956, ‘If the direction is ignored, the court must, I think, accept the verdict. There is no way in which a verdict of acquittal can be nullified.’ As Lord Chief Justice Mansfield put it in 1784, ‘It is the duty of the judge in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.’”
At least she would have if the Judge had not once again attempted to gag her.
“‘Hold your tongue!’ said the Queen, turning purple. ‘I won’t!’ said Alice.”
Judge Edmunds: “Is it your intention to breach restrictions imposed by law? Are you clear of the consequences?”
Gail: “I do what I have to do and you do what you have to do”.
Then came the character witnesses.
During another jury break, Judge Edmunds sought to preclude from witness testimonies views of Gail’s courage. He said: “That would fall outside their role as character witnesses”. Nonetheless, her witnesses spoke of her courage and her moral fortitude. How, one wonders, back in the real world, could the law deem courage unrelated to character, and her character irrelevant to her actions?
“‘That’s not a regular rule: you invented it just now.’ said Alice”
Gail made her closing statement successfully jumping the hurdles of judicial objections: “I have an inalienable right to protect my children and all of life. The Government’s actions present a grave threat and all of us are facing death and destruction at levels we can’t begin to imagine. This is fact, not belief.”
Judge Edmunds made one last impotent objection to ‘the whole truth’ being told: “I asked you to propose what you meant to say so I could approve it,” he blustered.
Gail parried: “It seems to me that the cumulative effect of these interruptions is to prevent me presenting a defence and the jury is just there to rubber stamp the direction of the Judge”.
He responded with a wink!
When the Jury had retired to consider its verdict, Judge Edmunds turned to the public gallery. “When the verdict is laid down, you will receive it in silence and with no facial expressions of support”.
“‘Everybody laughed, ‘Let the jury consider their verdict,’ the King said, for about the twentieth time that day.”
Over fifteen interventions and fifteen rational rebuttals later, in any logical world … checkmate!
But on the third day came the judgement: “Guilty!”
“Alice thought the whole thing very absurd, but they all looked so grave that she did not dare to laugh.”
We have all entered a world of mirrors, and through a glass darkly we see experts shunned, conscientious protectors demonised and the brave silenced. To quote Kafka’s Josef K: “The lie made into the rule of the world”. Judge Edmunds set the date for sentencing seven weeks hence. We shall see whether anything of Gail’s powerful irrefutable testimony stuck, but dark totalitarian forces have been at work. Gails’ trial date had been moved several times pending the outcome of a ruling handed down in September.
During those three years, other activists had been acquitted, first by sympathetic magistrates and then increasingly by juries who bucked the direction of Judges – perverse verdicts are obviously a thorn in the side of the judiciary but are not illegal. Indeed the inscription on the facade of the Old Bailey says as much:
“Jurors: you have an absolute right to acquit a defendant according to your conscience”.
Using the Colston protest as a touchstone to redefine the law (something that Judge Edmunds had denied happening), the Court of Appeal has since ruled that damage to property could be considered ‘violent’ thus taking Gail’s action outside of the protection of the European Convention of Human Rights. This ruling on defendants’ rights to protest, essentially made sure that the legal landscape had changed sufficiently to allow for a more draconian sentence.
Lord Robert Carnwath, a former British Supreme Court judge predicted, in a report for the Grantham Institute, that cases of climate change litigation will inevitably rise, particularly where human rights and constitutional violations are cited in arguments. He proposed that:
“Within this context, judges and the rule of law have an important role to play. Recent scientific evidence, particularly attribution science, makes it clear that urgent system change is needed to address climate change.”
He went on to say:
“The law can provide a bridge between the uncertain position in which communities and societies currently find themselves in the face of manifest climate change impacts, and the clarity and direction that will be required in the very near future. Judges can and must offer at least some of the building blocks for the law’s response to climate change. … The courts have a responsibility to act now and to consider the rights of those who will be most affected by climate change and the court’s decision in both the present and the future”.
Whatever the sentence, as Gail said outside the Department for Transport: “Nature is the highest court”.
“I can’t go back to yesterday–because I was a different person then’ said Alice.”
Ed: West England Bylines does not support any particular organisation or company. We do however give space to those who promote progressive and sustainable goals.
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