Obstructing the railway - Guilty: 24/01/22

Outcome
Court date

Court:

 

Inner London Crown

Hearing date:

 

24/01/22 – 27/01/22

Bench (DJ or JPs)

 

Judge Silas Reid

Charged with:

 

Obstruction of the railway

Represented by:

 

Owen Greenhall, defence barrister for M, Garden Court Chambers and Mr. Gould (not sure of chambers) for J

Please outline key points in prosecution and defence cases.

 

This was the trial of the high publicity Canning Town Jubilee Line Action.  The defendants and other rebels involved were subject to physical violence and there was a high level of disruption to rush hour tube passengers. The trial covered these aspects of the event, and the trial was conducted with sensitivity.  XR live video recordings of the action was produced by the prosecution, alongside BWV from the police.

The legal rulings took up over 30% of the trial with the jury out, while the defence of necessity and proportionality were discussed. Necessity as a defense was dispensed with quickly but proportionality and the balance between Ziegler and Brown (James) were discussed in minute detail.  The Brown appeal judges decided that the level of disruption and ‘chaos’ went beyond proportionate. M in his summing up pointed to the fact that the law around climate change, protest and justice was new territory for the Law. This was echoed by the Judge and quite obvious in the complexity of the discussions that took place throughout the trial. On the last day the trial the Judge decided that in the light of Brown and taking into account other European Court rulings (Zildburg[?]) on human rights in relation to protest and a public authority’s’ right to set rules , that  the defendants did not have a legal defence and the barristers stood down.

Key  elements:

The definition of the impact of climate change was agreed and read into the record. It included, fossil fuels have created the greatest concentration of CO2 in 2 million years; ecosystems are under threat, resulting in food provision problems; greenhouse gas concentration is causing a 1.3°C temperature increase already, affecting more than 2 billion people and trillions of pounds damage and the recognition that civilisation, as we know it, could disappear.

The defendants acknowledged that they obstructed a train.  They regretted the violence. They felt that the planning was not well done but maintained their innocence, in the light of climate change. After their legal defence was withdrawn, the defendants gave their closing statement and the Judge provided the summing up.  A full record of the daily proceedings from the trial support team is attached.

Was defence evidence submitted in writing?

Yes but only by M.

 

Did defence witness(s) give evidence in person? Were they cross-examined?

 

Yes, all gave statements.  Both defendants were cross examined thoroughly

What was the verdict?

 

Guilty

What was the sentence?

 

J has 9 previous convictions and 14 offences.  This was one of three incidents and t was part of a a co-ordinated series of actions organized by Extinction Rebellion which went very wrong. The two defendants were ignorant of London and did not understand that Canning Town was not in the financial district as they believed. There was a great deal of discussion between Reid and the Defence Barrister. Both defendants were motivated by Climate Change but Reid thought this was irrelevant.  They have both been involved in previous actions and have conditional discharges.

 

J - 12 months conditional discharge (? not sure of my notes here). Community service 60 hours unpaid work over 12 months.

M - 12 months conditional discharge (? not sure of my notes here). Community service 60 hours unpaid work over 12 months.

What were the court costs?

 

J - Fine £600 + £85 surcharge payable at £50pm starting on the 1st May

M - Fine £480 + £85 surcharge payable at £40pm starting on the 1st May.  

 

 

 

Please add anything else relevant.

 

 

 

Recordings

 

DLR4 trial Inner London Sessions (Crown Court).  Trial date 24/01/2022

Judge Silas Reid presiding.

 

Day 1,

 

This is the action that got all the publicity in October 2019.  Were the protesters were pulled from the roof of the train and attacked.

 

The trial began at 12 noon.  The time until the 1pm lunch break was taken up by legal discussions.  After lunch the Jury was sworn in and then dismissed.  The legal discussions continued until 3.30pm.

 

The legal discussions began with ‘necessity’ and the Ziegler ruling and if proportionality within the right to protest was applicable in this case. The defence of necessity was ruled out as a defence directly.  Proportionality was contextualised by the appeal by James Brown.  As I understand it, without reading the detail from the appeal, Ziegler had been used within the appeal and although the sentence was reduced, the conviction stands. This as I understand has an influence of other protest cases that seek to use the element of proportionality in sections 10 and 11 of the Human Rights Act as a defence.  As in the last DLR case, the Judge is still working on interpretation of Ziegler in relation to different charges and across all protest cases. He discussed this with the defence and prosecution, alongside rulings from the Chief Justice. What was agreed is that it is applicable to this case (and others) but it does not “inoculate” protesters from arrest and prosecution. 

There was discussion whether it should be subject of the Judge’s ruling or left to the jury.  It was decided at this point to leave it to the jury.  The prosecution said that his case is that it was a matter of balancing the human rights of protesters with rights of the public and that the protesters in this case had “gone too far”.  The Judge said he would give direction to the jury in his summing up. The ruling on the James Brown appeal:  “The right to peaceful protest should not lead to tolerance of behaviour that is far removed from conveying a strongly held conviction but instead seeks to cause chaos and as much harm as possible to members of the public.”  The judge did not rule out the possibility that the defendants might find that they have no legal defence at some point in the trial.  He seemed reluctant to see this happen as the barristers would have to leave the case to the defendants, which would confuse the jury and complicate the case but was not ready to make a decision.

There was another discussion about violence during the action.  J at one point kicked out at one of the commuters trying to drag him off the top of the train and there was a discussion about whether this was self-defence or otherwise.  Also the protestors and a rebel filming were subject to violence on the platform. It was agreed that the violence was a not relevant in this case but that it might come up during the trial and the Judge would deal with it if it did.

.

The trial starts at 10.30 tomorrow, Tuesday the 25th February.

 

Day 2, 25/01/22

Prosecution, Mr. Greenall, used 6 witness statements and 5 videos to show that the action started at 0642 on 17th October, 2019 with both defendants putting a ladder against the westbound Jubilee Line train at Canning Town station. They climbed onto the roof, unfurled a black banner with the XR hour-glass logo stating, “Business as Usual is DEATH”. Almost immediately, passengers were calling on them to get down, becoming angry and then they started to throw things at them: money(!), empty coffee cups, full coffee cups. Meanwhile the platform was filling with more prospective passengers. The trains were meant to run every 120 seconds, giving an idea how quickly the platform filled up and trains backed up. Meanwhile, the crowd spotted XR’s live streaming cameraman up high and pulled him off his perch. He was no longer able to continue, but his footage was used, including the last bit with the camera shooting at all angles. Up on the train, a man had been helped onto the roof and approached M who decided discretion was the better part of valor and slid down the side of the carriage, was hit by one man, the others preventing more. J lasted a bit longer, he ran along the roof, away from a bystander, decided to sit down to show he was peaceful. Someone pulled at his leg. He kicked back before being pulled down. He landed on his back and a rail employee fell on top of him to protect him. The employee (a witness) said, “I told him he was safe now and could get up, but he stayed put”. He eventually helped J° to his feet and escorted him away, handing him to the police, who had just arrived. M was arrested by a police dog handler and led away. The whole incident lasted 24 minutes; 10 trains were cancelled; the station was closed for 75 minutes to clear the passengers off the platform; 48,000 commuters were disrupted.

Both made No Comment interviews. Only M gave a written statement. It said, “I was protesting against the government doing nothing for climate breakdown. I felt I must take protesting to a higher level”.

Agreed Facts

These are what both prosecution and defence agree on, so the jury needn’t make any decision on them, but they provide background information. Each juror has a copy, and J’s barrister, Mr. Gould read them “into the record”. The main item was the definition of the impact of climate change. He read out 10 points which included, fossil fuels have created the greatest concentration of CO2 in 2 million years; ecosystems are under threat, resulting in food provision problems; greenhouse gas concentration is causing a 1.3°C temperature increase already, affecting more than 2 billion people and trillions of pounds damage. It finished with civilisation, as we know it, could disappear.


Defence of J

He got on top of the train “to avert the collision course that civilisation is on with the iceberg of climate breakdown”. He saw how the April 2019 Rebellion had disrupted 3 bridges over the Thames, was enthused and joined in the October Rebellion that year. He wanted to disrupt the big business in Canary Wharf that is accelerating climate change. He was involved in the planning, but not about the site chosen. The idea was to arrive on the platform at 0600. The team was delayed so didn’t reach the platform until 0645. This made a big difference to their plans because there were a lot more people there than would have been there at 0600. The follow-on from this was that more trains would be disrupted than planned and the police would take longer to reach them. This was borne out in the resulting violence that occurred. He had leaflets to hand out, but didn’t manage to give one out.

On cross-examination he was asked why he continued when they were late and he saw the crowd. He explained it was the adrenalin and the worry of letting the team down. Also, he had no way of communicating with the rest of the team. Prosecution missed out there because a glue-on member of the team decided to not glue on, showing one person had stopped. He was surprised at the reaction of the commuters. He put that down to the non-violent nature within XR affecting everyone’s prediction that others would be reasonable. Why did he choose a climate-friendly mode of transport? He wasn’t focusing on the mode, he was focusing on the commuters working for companies which were perpetuating climate breakdown. Did you think you would disrupt 48,000 people? Again, the delay in starting, we knew we would disrupt quite a few but not that many. Asked if they considered a less disruptive way of protesting, he said, “I haven’t come across a way to protest that doesn’t affect the public which worked”. When asked about “stamping” the person who tried to drag him down. He simply said, self-defence, even though he was generally non-violent. He said that the filming made it look worse than it was because only a few people were shouting, but the video made it look like the whole crowded platform was shouting.


Prosecution finished there at 16.19. Judge Silas let the jury go, then asked the prosecutor if he considered the jury should make the decision or not. He said No. This shows that the judge has still not decided to let the jury decide on “it going too far”.

 

Day 3, 26/01/22

Jury  included 9, mostly young women.

M gave his evidence.  In 2019 he was 36 years old.  He is a Buddhist teacher and committed to non-violence and to a deep love of the planet. Mr Greenall questioned him. 'Why did you climb on the train?'

The breakdown of our climate threatens everything.  The Government had not done anything. He felt that he had to do something and his primary motivation was love for the planet.  He didn't expect disorder.  He had got it wrong.  It was a mistake.  As a Buddhist one of the tenets of his belief is to do no harm.  He is sorry that people were affected. 

There was planning for the action by a group of people.  The protests in April 2019 had been successful in raising awareness of climate change. The Government had declared a Climate Emergency but had done nothing. In October M felt that the protests weren't getting enough publicity and there was a call out a week before the action to which he responded. There were 2 meetings of 20/30 people. There was a great deal of discussion about the safety of the action and M felt they were covered. Canning Town was above ground.  The platform was wide and an island. They did not want to disrupt a lot of people during rush hour and arranged it earlier than 7am. There was a triple system.  Arrive at the station from Stratford and pull the communication cord.  Stand in the doors. Sign to the driver and climb on to the train using a telescopic ladder.  The planning team had spoken to the police to let them know of the protest but not its location, however the police were only informed on the morning of the action. M felt that safety measures were met.  He would not have done it otherwise. 

He also thought that Canning Town was in a financial district and the protest was targeting people who work there. He took this information on trust.  There is a lot of unethical investment in fossil fuels. It was also a symbolic gesture to stop the train and pull the emergency cord.  M thought that the police would get there quickly.  They didn’t arrive until 20 minutes into the action.  

There were J, M, 3 de-escalators, and 3 others with cameras in the team.  M climbed up followed by J. A sandwich was thrown at him and there was increasing hostility from the crowd.  He didn't imagine it would escalate into violence.  He was frightened when the camera man was attacked but he didn't know what to do.  If he got down he would be attacked.  He kept thinking that the police would come any minute. J was pulled down and assaulted and M was pushed off the train.  He was kicked and his hair was pulled. Eventually after about 20 minutes the police arrived.  

"Did the action go according to plan and would he do it again?'

No. Disrupting the public is not a good idea. But he has been an environmental campaigner for 10 years, written petitions, given talks, been on marches and nothing has changed and he was motivated by compassion for the world.  

M was then questioned by Mr Blackburn for the prosecution.  

M is from Bristol and does not know London and he did not know that Canning Town is not in the financial district and that he was targeting the wrong people.  He took that on trust but he doesn't blame anyone. He would not do it again.  Society is too polarised and alienating people is counterproductive.  

There was then a note from a Juror.  It's a very interactive Jury! It questioned if M and J were chosen because they did not know London. Judge Silas did not read this bit out in front of the Jury, but the Juror asserted that any Londoner would guess how the crowd would react on a busy week day morning.  M felt that they weren't chosen for this reason and that anyway he volunteered.  In a way he was fearless (initially) because of his Buddhist training. With hindsight it was the wrong place.  

That was M's defence.  He came across as an honourable, truthful, young man. The Jury were dismissed and asked to come back tomorrow morning. 

The next bit took all day! We sat for 3.5 hours in the morning and another 3 in the afternoon! The Judge talked to Counsel and discussed Articles 10 and 11 and whether they were relevant.  Sorry but I didn't really understand all the legalise to-ing and fro-ing.  Was this lawful assembly?  Was Zeiglar relevant?  Is this an act of expressive nature? It was a very technical discussion and the two defence barristers put up an intelligent, spirited argument to the Judge.  They certainly earned their money.  Mr Blackburn asserted that it was an outbreak of disorder but that the defendants did not want to incite violence.  It was a conscientious, thorough discussion. 48,000 people were impacted by the protest and many passengers were stuck on the train for 20 minutes.  They discussed the European interpretation of Articles 10 and 11.  

It appears the decision that the Judge is trying to reach is whether the defendants have a defence.  If they don't then the Jury would be ordered to ignore all of the defence evidence in arriving at a verdict.  (This would be very difficult wouldn't it?). Mr Gould for J (who was excellent) said that it was a balancing exercise, the right to protest and the prevention of disorder.  There was a lot of technical debate about different laws. The Judge will decide overnight and tell Counsel of his decision at 9.30 Thursday morning. The Jury will come in at 11am.

Day 4 Thursday 27/01/22

09.30 - Judge Silas Reid gave his judgment that there was no defence available to go to the jury. This was to the court in the absence of the jury.

The judge left court and the defendants and their barristers discussed how the trial should proceed.

10.40 -  Judge, barristers and defendants but no jury back in court. Mr Goold for Jand Mr Greenall for M said their clients were no longer instructing them (as expected), the defendants would address the jury themselves.

Judge said the barristers could watch the case from another room by TV link. He suggested the barristers might be instructed again if there was an adverse verdict. He commented that he needed to look closely at the Court of Appeal judgment in Brown to consider the section on Sentencing.

The judge asked the defendants to move from the Dock to the row behind the barristers so that they could talk to the jury.

The defendant barristers left the court.

Judge explained to the defendants that he would direct the jury on the law. The prosecution must establish guilt. The jury will consider all the evidence. He gave the defendants 2 documents, saying he would tell the jury it was the defendants right to dispense with their barristers. He specifically checked with J that he was happy for the judge to say something to the jury about his Asperger’s diagnosis which J’s barrister had emailed him about last night. One of the documents was a paragraph the judge was going to say about J’s diagnosis. There was some discussion with judge and J about this, around J’s use of language and reaction to conflict. J agreed that sometimes he takes a literal view of language.

The other document was the judge’s directions on the law. Neither were read out.

Judge said prosecution would not speak again. Prosecution did not object to defendants speaking to the jury.

Judge said M had been in front of him on another trial and had mentioned a case to the jury (about jury not having to follow judge's direction on the law) and asked what he intended to do. M said he would speak from the heart. Judge told him he could not tell the jury to go against the judge's ruling. J said he was thinking of saying "you could acquit us if you feel compelled to".

After asking prosecution view Judge told J and M they were not allowed to invite jury to go against his rulings or invite the jury to acquit if they believed the defendants were guilty, but the jury could use their conscience. Judge said he would not go through the evidence with the jury as the defendants had effectively admitted the offence.

10.55 Judge left court.

11.07 judge back

11.13 jury in court.

Judge told jury the defendants have dispensed with barristers and this was their right, it should not be seen as sinister. He outlined who would speak.

Judge said his area was the law. Jury must accept his legal directions. Jury consider the evidence and decide if offence is proved. He mentioned Js Aspergers diagnosis. There was no evidence produced about this. The jury can draw inferences from what they have heard but must not guess or speculate. Prosecution must prove guilt. Defence do not have to prove innocence.

Judge read out the offence and that there had to be an unlawful act and an obstruction. The defendants were on the train roof, that was unlawful. This obstructed travel. The defendants accepted this.

Judge said you have heard defendants beliefs, the agreed facts on climate change but none of those give a defence to the charges. We have a democratic right to protest. Defendants actions went too far. Right to protest is not a defence. You have to follow that. If I have that wrong a higher court will decide. All you have to consider is has the prosecution proved they committed the offence. Did the defendants breach the by law? If unsure it must be not guilty. If you are not sure they obstructed the train it must be not guilty. This case is not about emotion or sympathy. Not about a saint or a sinner, or being put in a position by others, simply has the prosecution made you sure. You may think each defendant has shown

guilt in the evidence.

11.24 J

# to the jury:

Invite you to consider your conscience. No sanction on you if you reach a not guilty verdict and feel called to. The agreed facts show severe effects of climate breakdown in next 20, 30, 50 years. Famines will hit the developing world. Decrease in living standards in our society, food shortages, conflicts. Our civilisation in crisis. I endlessly wrestle with was it right to do this but climate breakdown is happening and will intensify. Others may ask in the future what did you and why did you not do more. Action as proportionate to the emergency we face. It was an opportunity to send a message that goes around the nation to be discussed. I want to be a good ancestor, to make a difference.

11.27. M address to jury

We didn't expect to break with our lawyers but we are told there is no legal defence. I am addressing you as a human being. I am not going to ask you to acquit or convict. I don't know if we are criminals for doing what we did. Our barristers tell us we have no legal defence and I don't dispute what the judge has said as he is the legal authority in this room. I don't feel like a criminal. Only your opinions matter. I was moved to see you 12 coming to decide this case. What a wonderful system. Your oath to give a true verdict on the evidence. It is important that if you feel we are not criminals there is no sanction on you to give a not guilty verdict. I completely trust in the process and in you. I bow down and accept there is no legal defence for what we did. There are lots of case law and precedent that lawyers can point to. In this situation of radical climate action, unprecedented levels, this threat to the planet, it is not in the law, it hasn't happened before. I have no problem with what the judge said. As a lay person this this is unprecedented. You can decide if a couple of guys who bring attention to it are criminals. It is not pretty it did not go well. It was horrible. But the question is was it criminal to do it. When I got on top of the train I did not expect it to go away. I hoped there would be change. I knew I could go to prison for two years but that was the least of my concerns. I thought if I could get some attention on the climate, time in prison, my freedom is insignificant, in the light of what could come about. My bag is packed for prison. I can look my niece and nephew in the eye when they are older and can be proud that I tried. I may have made a mistake but I tried to do something. Thank you.

11.36 Judge Reid to the jury

You saw the evidence, each defendant on the train. They came down, they were interviewed. They made no comment. There is nothing wrong with that. M read a statement. No issue arises from that. Each defendant admits the elements of the offence. There is no defence of motivation. J describes waiting for the police to arrive, having leaflets he did not distribute, seeing the videographer assaulted, feeling guilty about pushing a member of the public with his foot. He explains his feelings. You may think he is a pacifist. J was kicked on the ground. M got on the train. His Buddhist beliefs and his reasons, his motives are not a defence. His reasons are not relevant. The action was designed to cause disruption. He had no expectation of violence. He was told Canning Town was in the financial district. He hadn't noticed the station was busy.  He thought the police would be there any minute. M continually weighed up the safest response. His aim was to de-escalate. He considered getting down and subjecting himself to violence, he saw violence to the cameraman. His heart fell out. M could not say if he should stay up for his own safety. He says he would not take part in such an action again.

The prosecution say that the defendants have admitted guilty as charged. J invited you to be good ancestors. You can see his passion but you decide on the agreed facts. M questions whether he is a criminal but this is not relevant. He invites you to decide. Imprisonment is not a relevant consideration for you as his jury. He may have said it to evoke sympathy. He feels his motives were pure. There is no sanction for a not guilty verdict that is correct. You need to weigh up. You must be sure the offence was committed to find guilty. Whatever your view is if the Defendants are criminals or not you must deliver a true verdict. The verdict must be the same for you all. You should elect a chair who will deliver and say the verdict. You must all have your say.

11.45  Jury bailiffs sworn and jury out.

Judge raised question of anything relevant in defendants records. J may have a conditional discharge that a conviction would put him in breach of.

Judge commented to M that he was not expecting him to refer to the consequences of conviction but felt it was not to get sympathy but to show that he had considered all the consequences of his actions.

Judge asked defendants to make a note of their travel expenses. They were bailed to the precincts of the court and asked to wait on the floor below. 

 

 

12.35 called back to court for jury question. Can they make a statement when they give their verdict? Judge and prosecution considered Archbold. Judge decided to say they can make a statement but after the verdict. Jury in and told this. Jury out 12.45.

 

14.20 called back to court for verdict.

Foreman confirmed the guilty verdict in both cases.

Clerk read each charge and foreman gave the verdict as guilty for each defendant.  The foreman read the statement:

We as your jury want you and the court to know that we wholesomely support your cause. Our verdict is based on the law and not on our personal beliefs.

A note of the statement was retained by the judge.

 

Judge considered sentence and said the defendants have deep held beliefs.  M had glued himself to a train in April 2019. Judge wants to consider what the Brown case says about actions like these. Some actions are so serious they may need a prison sentence. M and J have other convictions from demonstrations. He commented that the barristers were probably watching on TV link and asked if defendants wanted them to come into court.  Defendants agreed. 

Judge addressed the jury: We had a long break to discuss the defence in law. I decided they had no defence. Another court might say I am wrong. That does not matter to you. This is not the usual type of case and it is important that you gave it the consideration that you did. Thank you for being an important part of our justice system.

The court does not look at motives. I will sentence the defendants in a few weeks. You can contact the court to find out if you are interested.  It might be in the media.

14.35 Jury dismissed.

M went to get the barristers. Mr Gould had gone to another case  but Mr Greenall came back to Court.

The judge asked for pre sentence reports by 10 March.

Provisionally 18 March fixed for sentencing hearing. Judge felt that custody threshold may have been reached. Asked defence barristers to file submissions (mentioned Brown CA judgment) by 28 Feb. Prosecution response by 14 March.

Both defendants confirmed in answer to the Judges question that they had moved away from direct action.

Mr Greenall indicated that the case of Judge Perrin (the diggers?) was now not to go to appeal.

Judge said to prosecution that he should ask if the Attorney General could give guidance to the courts on sentencing in case of this type.

Judge then addressed the defendants. They had been convicted, pre sentence reports had been ordered, this was an opportunity to discuss with probation officer and perhaps mention the possibility of reoffending was nil. All options for sentence remained open. Unconditional bail granted until 18 March.

14.46  Court rose