Protesters charged with non-violent offences should not be forced to disavow their motives when defending themselves at trial or seeking mitigation on their sentences, academics have said.
In a challenge to the current approach to protest trials, a study argues courts should allow defendants to explain the reasons for their actions as a defence, and respect their integrity as a mitigating factor.
What they ought not be expected to do, the authors say, is express remorse.
Dr Graeme Hayes, a reader in sociology at Aston University and one of the three authors of the paper published in the Oxford Journal of Legal Studies, said: “The way courts currently handle protest trials forces activists into an impossible position – either abandon their political stance or face harsher punishment.
“Protesters acting in defence of their communities should be able to fully account for their actions in court, with juries – not judges – deciding whether their actions were justified and proportionate.”
The research comes amid a tightening of restrictions around the defences granted to defendants prosecuted for disruptive, non-violent protest actions, and a ramping up of sentences for those found guilty.
Last week, the court of appeal reaffirmed long custodial sentences handed to 10 climate activists. Although the sentences of six were quashed, they were replaced with terms that were only slightly shorter, by a panel of judges led by England’s most senior judge.
Defendants in other recent cases were given strictly limited periods within which they could offer explanation for their actions, with juries in most cases then told to disregard their statements before reaching a verdict.
Hayes and his colleagues’ research is based on years of observations of trials of protesters in English courts. “[It] is linked to what we see more broadly now as more of a repressive space in the courts, where the courts are increasingly cracking down both in sentencing and the availability of defences,” said a co-author, Steven Cammiss, an associate professor of sociology at the University of Birmingham.
Core to their argument is an understanding of the role of the trial as a “communicative process” in which communities seek not only to hold defendants to account by determining the truth but also their motivation.
In a normal trial, an expression of remorse is seen as crucial to the rehabilitation of an offender, a recognition of how their actions have strayed from communal norms and standards. But the authors argue that in a protest trial, this is inappropriate.
Instead, they say, courts should apply an “integrity principle” that respects defendants’ moral consistency and philosophical beliefs, and allows them to attempt to justify their actions in law.
Altering court processes in this way, which could be done through legislation, would remedy a narrowing of rights to protest and protection of philosophical beliefs previously respected by the courts. It would reintroduce defences of justification and allow for mitigation based on the moral integrity of defendants’ actions, the authors say.
Such a trial would look like that of the Colston Four in Bristol, where four defendants who helped pull down the statue of a slave trader and push it into a river were acquitted by a jury, despite broadly admitting the prosecution’s claims.
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“In the Colston trial, the Colston Four were given a lot of space to talk about Colston,” Cammiss said. “They had [the historian] David Olusoga’s expert witness talk about Colston’s place [in history] … you had members of the public talk about what the statue … and the history of Colston meant to them as people of colour in that city.”
Jolyon Maugham, the director of the Good Law Project, which has supported climate protesters, backed the study’s findings. He said: “The notion of incentivising protesters to lie – to affect remorse for conviction views – is both madness and consistent with a legal system that protects those who destroy the planet for personal enrichment and attacks those who selflessly try to save it.
“This paper wrestles with how to try and restore the important connection between morality and protest law and it would be nice to think a Labour government will engage with it.”
But the former supreme court judge Jonathan Sumption said he “fundamentally disagree[d]” with the study’s argument, saying that the court of appeal had made it clear that integrity could not be a defence when it ruled on the Colston Four.
Democracies already have procedures for resolving public disagreements on issues such as fracking and climate change, he said. As a result, “resort to coercion is never legitimate, because it is an attempt to impose the protester’s view regardless of the outcome of our decision-making procedures, on the ground that his is the only legitimate view.
“That is an essentially totalitarian and anti-democratic approach. We have no right to have our own way, only a right to be heard, and a right to argue our case in the hope of persuading people.”
Source: theguardian.com
