I was in the Westminster Magistrates Court this morning observing the trial of ‘M’ (defendant wishes to remain anonymous for this Facebook post).
It was another Section 14 Public Order Act offence, but this one was in Parliament Sq on 19 April 2019.
The case was heard before Judge Dean
I sent M a lot of material prior to the hearing to help prepare her for the trial. When it came to the day M felt there was a limit to what she could cope with and so focussed her defence upon those issues of greatest concern to her (the defence of necessity).
I had alerted M to the fact that the courts have so far refused to accept a defence of necessity for S14 charges and so M put her defence in such a way as to establish why the Judge/CPS felt our thinking was flawed.
What was revealed today is of great importance to all those who argue that they were justified in taking the action they did because they acted out of necessity to save life. Please do all that you can to ensure anyone you know who is pleading Not Guilty has access to this report.
The case kicked off with the CPS explaining to the Judge that there had been an administrative mix up. There were due to be two cases held today and M was also due to be charged for two offences but only M would appear today and she would only be charged for a S14 offence on 19 April.
M had also been arrested on 21 April and that charge is now scheduled for a 3 day trial between 1 and 3 October. She would be on trial along with several other people who were arrested at the same time and location.
The trial today was solely for the S14 offence on 19 April. The CPS had sent the arresting officer’s statement, the body worn footage and the Senior Police Officer’s statement, in which he explained why he had decided to impose the S14 condition to M. The CPS was not aware of the nature of M’s defence and so both officers had been called to court to give evidence.
When M was called into court she was sent to the dock. At Westminster Magistrates Court the dock is behind a glass wall. It is quite large but looks quite intimidating. It must feel a bit like a glass cage when you are inside it.
After some initial points on procedure the Judge suggested that M be asked to sit in the open court room because this was not a serious criminal case.
When she came into the court room she asked if she could have a McKenzie Friend sit with her. The Judge agreed, though he explained the limitations upon what the McKenzie Friend is permitted to do. “JB” was asked to come forward and sit with her. When he gave his name to the court the CPS staff present did a check upon him and within a few seconds asked to notify the Judge of the fact that JB had also been arrested on another occasion for a S14 offence.
The Judge ruled that JB could still act as a McKenzie Friend and noted: “I am sure he will behave as he should in Court”.
The Judge then noted the fact that M was not legally represented and so told her how the proceedings would unfold. She was asked if she had seen all the evidence and was informed of her right to cross examine the CPS’ witnesses.
The CPS Prosecutor said she had given a No Comment interview and was released “pending further investigation”. She had pleaded Not Guilty at her plea hearing. He then read out Section 14 of the Public Order Act.
“Section 14: -
Imposing conditions on public assemblies.
If the senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that—
it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or
the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do, he may give directions imposing on the persons organising or taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such disorder, damage, disruption or intimidation.
A person who takes part in a public assembly and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control.”
CPS: Noted that Acting Chief Inspector Richard Galvin had made the S14 order, and his statement had been sent to M. The arresting officer’s statement, Police Constable ‘KM’, had also been sent to M.
The Judge asked if she had received them.
Judge: Do you accept them.
M: Well, Yes.
English is not M’s first language and, although she speaks good English, she may not have realised that under a ‘necessity defence’ she should probably have explained that she did not agree with the senior police officer’s statement. When I observed M I felt she was occasionally struggling to keep up with what was being said to her. (See the Judge’s summing up at the end of this report.)
The Judge then said he would spend a few minutes reading the statement from the senior officer. The public present were not told what was in it but, from my previous experience, I am sure it would state that the senior officer had to weigh the rights to demonstrate against the right of the community to go about its normal business. The officer had assessed that the scale of disruption could not be justified and so he implemented the S14 order, directing that all protesters must leave Parliament Sq and go to the designated site – Marble Arch. The report would include an assessment of the scale of the impact upon London and it later emerged the impact included three emergency ambulance services that were delayed.
When the CPS prosecutor spoke to the Acting Chief Inspector he posed various questions about the date and timing of his statement and his recollection of the facts. He then confirmed that: -
- 100s of police officers were deployed over the period of the demonstration;
- A police Support Unit had 3 sergeants and each sergeant was responsible for 21 PCs;
- He was Level 1 trained in Public Order law’
- Many of the officers drafted in were Level 2 trained and had to be briefed before deployment on the day;
- The protesters had been in Parliament Sq for 4 days and had taken over the highway; and
- He considered that the scale of disruption upon the community could not be allowed to continue.
The CPS then referred to a second statement from the officer which was handed to the Judge.
The Judge asked M if she had any questions to ask of the senior officer.
The senior officer was in witness box for around 15 minutes and left.
The CPS then called the arresting officer to give evidence. PC ‘KM’.
KM gave various details about her rank and what form of uniform she was wearing that day (to establish it was clear she was a police officer). KM explained her role, with the CPS posing questions to demonstrate that she had given all the required warnings and instructions to the defendant. The PC gave evidence to show that M would have heard the warnings given and that around 2 minutes was allowed for M to comply.
The body worn footage was then played in court which showed M ignoring the warnings given and being arrested. Unlike others I have seen arrested, M was handcuffed.
When M was carried to the police van and set down on the ground, it is at that point that M becomes more conversational. I interpreted that as M feeling that she had then done her job.
The non-verbal communication in court between the arresting officer and M was interesting. They smiled at each other, like they were friends.
KM said that, at the police van, she asked why M had refused to move and had to be arrested. KM had said that M explained it was due to climate change. KM said that it was necessary to search M at the police van and she was fully cooperative.
The Judge asked M if she had any cross examining questions to put to KM.
M replied “no”. And added that “I am sorry I didn’t talk to you before you arrested me, it is a coping mechanism to remain silent. I was fearful and felt it best to remain silent.”. KM smiled to her. (They appeared to be two perfectly reasonable people, who happened to be on opposite sides of the law.)
KM left the witness box and the CPS said that completed the prosecution’s case.
The Judge then directed M to the witness box where she was invited to sit or stand as she preferred. She took the oath.
M said she had some notes. The Judge asked to read them. M explained that they ran to 3 pages but there was some material she wouldn’t read. The Judge asked for copies nonetheless and directed the court staff to get copies.
Three copies were produced after a 5 minute delay. (A defence barrister would not be granted that latitude).
When M was in the witness box, waiting for the copies to be returned to her, she struggled to contain her emotions. From her perspective she was up against a male Judge, a male Court Clerk, a male CPS prosecutor, two male CPS support staff - and her McKenzie Friend was some distance from her. This is not an easy experience for anyone.
M went to the crux of the matter straight away.
She said that she was being charged for a S14 offence in Parliament Sq and she admitted she was there and heard what was said. But she said she acted out of necessity. She said that she understood that the CPS prosecution was arguing in other S14 cases that the defence of necessity did not apply, but she could not understand why. She said that “because I am not legally qualified that may explain why I do not understand”.
She went on saying “I understand that the police need to restrict demonstrations in exceptional circumstances, but the climate crisis is an exceptional circumstance. The police need to take into consideration the scale of the climate emergency before us and the catastrophe that we now face”.
So, she said she couldn’t understand why the defence of necessity was at fault.
She then went on to challenge those who called XR extremists. She said she was not seeking a political revolution; this was a matter of our long term survival.
She called for the government and the media to convey the scale of the emergency to the people and then for the creation of a citizens’ assembly to guide us in the decisions that need to be made – to decide our future.
She returned to the arrest and said she didn’t have much to dispute about the arrest. But she said she didn’t feel the senior police officer had given enough thought to the exceptional circumstances that had resulted in the protest. She added that the police need to consider “the terrifying implications of the coming catastrophe”.
M was a little emotional, so the Judge asked if she wanted some water. M declined.
M went on, “given the threat of climate heating, it is not his job (senior police officer) to adjudicate on the protest”. “It is not his job to adjudicate on such a crisis.”
M added that the Police conducted themselves impeccably.
She then returned to her key theme with “I know all those charged are being found guilty, regardless of the circumstances. But I did not act out of malice. I was justified. I was justified because of the necessity for the prevention of loss of life.”
M went on to refer to overwhelming evidence of an impending catastrophe due to the over consumption of resources. She referred to the frightening implications of environmental breakdown and geo-political conflict. (She did not offer sources for this information.)
M accused government of wilfully failing to act. As a consequence, she said, already today people in the global south are dying. There is “enormous suffering and death”. She emphasised that hundreds of thousands are dying, the climate catastrophe is already destroying lives.
Returning to government she said “government does not have a mandate not to act”. “We are complicit in genocide; not a genocide of intent, but a genocide of neglect”.
She added that the 2050 target was too late. She said the evidence was that we are on track to overshoot the 1.5C and 2C targets. “At 2C of heating there would be more harvest failings, more food shortages, more starvation and mass migration. But the IPCC says we could be on track for 4C of warming.”. She went on: “4C of heating is incompatible with organised civilisation. We are on track for the collapse of civilisation.”
M said that if we accept the warnings from the IPCC of further heating; the risk of methane being released from melting permafrost, the additional heat as a result of overcoming ‘global dimming’ as coal is phased out, and the loss of carbon sinks as forests are consumed by wildfires, then there will be no complex life left on the planet. She referred to a near dead-rock travelling through space. The planet would survive us, but without all complex life.
At this point I noted the Judge look up from reading his copy of her paper and he looked bored. Or perhaps exasperated at having to listen to something he disagreed with.
M didn’t notice the Judge and wrapped up by saying that unless we act, this process will not stop. “I cannot stand by and let this happen, I have to take non-violent direct action to stop this heart breaking outcome”.
CPS Cross examining of M.
Throughout the hearing, and later on, the CPS Prosecutor was very polite to M but after his first question he raised his voice to M. This was classic bullying that we see on TV screens. People need to prepare themselves for this when being cross-examined.
CPS to M: Did you hear the direction to move?
M: yes. I tried not to hear what she said, but I did hear it.
CPS: Do you think she (arresting officer) acted lawfully?
CPS: Do you accept that Marble Arch had been offered to you as an alternative site to continue with your protest?
CPS: So you ignored the officer?
CPS: Do you accept you were impeding on the rights of others to travel?
M: Yes. But only in part. If we carry on with business as usual, the consequences will be the worst for the poorest section of society. We (XR) are trying to do this for them.
CPS: What about the three London ambulances? They had rights? What about their rights?
M: I don’t understand.
CPS: It is not just about your right to protest; your protest has an impact upon others!
M: There is another point, it wasn’t just me on Parliament Square. There were others on their way to join the protest.
I know others were impacted and I feel sorry.
CPS: What gives you the right to protest to secure your objective and put that over the right of the London Ambulance Service to get patients to hospital?
The Judge then asked some questions.
Judge: How long were you in Parliament Sq for?
M: About three days prior to the arrest.
Judge: Do you not think you had already proven your point? Was it necessary to go one stage further and get yourself arrested?
M: We had tried everything for many years. We hadn’t been successful until we went for non-violent direct action.
Judge: Why didn’t you go to Marble Arch?
M: Marble Arch would be less effective. Sadly it was the case that disruption was necessary.
The Judge then asked M to leave the witness box and sit back at the desk with her McKenzie Friend. He then explained that because she had not brought any witnesses, the CPS could not offer a closing statement, but she was still at liberty to do so.
M said she would do so. There was a short break and M then wrapped up with these words (I tried to get everything down but will have missed a couple of bits).
“The CPS prosecution says it accepts that climate change is real and it accepts the science, but the CPS is not fully engaging with the implications. There have to be structural changes to society that are scientifically based. Extinction Rebellion, and society at large, need to act. There needs to be an emotional engagement with the implications if there is to be a future for the biosphere.
We could lose all that we hold dear. This may be an abstract concept until someone you know dies. You can only understand death when someone you love dies. Earth, as a concept, can be seen as our mother, and she is dying.
We scar her.
We burn her.
We suffocate her.
We destroy her; and through that, our own life support system.
Maybe all that will be left on this planet will be micro-organisms. Some say that it is a natural process, what-will-be-will-be, that life will eventually bounce back. But this is not a natural death, we are killing entire species 1,000 times faster than the natural rate of extinction should be. We are destroying all life, this vast long line of life, of individual creatures that are all trying to survive. Some species are being destroyed after surviving for millions of years.
We act out of love. Unlike others we will never commit atrocities to achieve our aims.
The Judge then summed up.
He reminded the court of the charge and said that it is the task of the CPS to prove that the defendant knowingly failed to comply with the S14 order. He said the Crown had done that.
Turning to the question of “justification”; whether the defendant was justified in her actions, the Judge said that: “the CPS has proven to me that you were not justified in your actions”. He said that: “you could have moved but the only thing that stopped you from moving was your strongly held belief”.
The Judge added that the senior police officer had to consider the Human Rights Act articles 10 and 11, the right to freedom of expression and of assembly. They were engaged by the S14 decision but they are not absolute rights . They can be interfered with.
(Note: The Human Right to life is an absolute right and cannot be interfered with).
The Judge went on to say that in setting the S14 condition the senior police officer had acted reasonably, fairly and proportionately. He said that “M” had not challenged the fact that the senior officer had acted reasonably.
Returning to “justification” the Judge said that climate change could lead to a degree of outcomes. The degree of change remains a subject of debate in society. He noted that M had deeply held views and added that not everyone agrees with those views. There are differences of opinion relating to the speed and acceleration of climate change. As you would expect in a free democracy, climate change is still the subject of debate. And M’s view is not necessarily shared by others.
The Judge then said that: “the defence of necessity has not been made out. I am satisfied that the case against M is proven.”
The Judge then said he noted M was 42 years of age and a person of previous good character. She is not in the habit of breaking the law. He added that it enhances her credibility because she gave evidence on her own behalf.
The Judge asked the CPS what it was looking for.
CPS: £620.00 costs.
The Judge ordered that the court rise for 5 minutes to allow time for M to complete the means form.
When the Judge returned he asked M if there was anything more she wanted to say in mitigation. M replied that she had already said it.
The Judge ordered that M be conditionally discharged for 9 months and explained the meaning of this to her. He then awarded cost of £500.00 plus the £20.00 victim surcharge, to be paid at £80.00 every 28 days, with the first payment in 14 days.
He said he would make a collection order for the debt and explained to M that if she did not pay, the bailiffs would collect it and this would add further costs to her debt.
The Judge reminded her to attend the next hearing at Hendon Magistrates Court on 1 October for the trial of her second case.
Outside the court M met with a team of 6 XR supporters who made a right old fuss of her! A lot was said about a number of points that I won’t mention here. But M received lots of support and unanimous agreement that she had just been through quite an ordeal.
Everyone involved in XR cases need to carefully consider the implications of what the Judge said. He appeared to dispute the science that mass loss of life is already occurring and will be unprecedented going forward. Mass loss of life is surely grounds for “necessity”, we are justified to act to avoid that outcome. We need to be more precise with our wording and provide the sources of our information.
We need to ensure that we set out what the science shows at future hearings. The CPS claims it does not dispute the science of climate change, but what emerged today was that the science relating to mass loss of life is NOT accepted as fact by the Courts. That is plain wrong and grounds for appeal.
There is, of course, a debate to be had around how many people will be killed by climate breakdown. There isn’t universal scientific agreement on that. But the evidence from the IPCC, WHO, World Bank, Global Humanitarian Forum and many other bodies is that mass loss of life is already occurring, and this will accelerate. The slower we act the more people will die. Fact.