Voices: Sending climate protesters to prison shows the law is an ass

Trudi Warner, a 69-year-old climate change activist, is facing legal proceedings for allegedly holding up a sign in front of jurors  (PA Wire)
Trudi Warner, a 69-year-old climate change activist, is facing legal proceedings for allegedly holding up a sign in front of jurors (PA Wire)

Trudi Warner is, in many ways, an unlikely rebel. The 69-year-old former child mental health social worker is, in her retirement, a keen organic grower, and last year spent part of the year looking after sheep on the Isle of Eigg.

She is also worried stiff by the threat of climate change, and – after the resounding European Court of Human Rights verdict against the government of Switzerland this week – who’s to say she’s wrong?

Her concern about the climate crisis and how to draw attention to it has led to the prospect of being sent to jail. She is being prosecuted by the attorney general for, as we shall see, telling an accepted truth, or, as the authorities would put it, contempt of Court. Her crime, if that’s what it is, was to tell the truth in the wrong place – on a pavement outside the Inner London Crown Court.

She probably wouldn’t have fared much better if she’d been inside the court. One of the judges, Judge Silas Reid, frequently tells any environmental protesters who appear in front of him that they must not mention climate change as a motivation for their actions – at least until they’ve been safely convicted. One activist who ignored him, David Nixon, a care worker from Barnsley, was duly jailed for two months for contempt of court.

Trudi was appalled – and was even more dismayed a little later when her lodger, Amy, and a fellow protestor also insisted on mentioning fuel poverty and climate change. Reid was having none of it.

“It seems to me that the desires of the defendants to speak about the motivations of their actions is that they believe that the jury will look at the case in a moral way rather than in a legal way,” he said. “That would be wholly wrong.” They, too, went to prison – a seven week sentence.

Judge Reid instructed the jurors to ignore the protestors’ motivations. “It is for history to judge and not the jury,” he said. He is reported to have warned another jury: “It is only on the evidence you are able to try the case and not on conscience…”

Well, up to a point, your honour.

Judge Reid will know that there is a plaque in the Old Bailey commemorating one particularly obstinate juror: Edward Bushell, who, along with his fellow jurors, came up with the ‘wrong’ verdict in refusing to convict two Quaker preachers (including William Penn) in 1670.

Bushell was jailed, but still refused to budge. And as the plaque points out, the case “established the right of juries to give their verdict according to their convictions.” Or, to put it another way, their consciences.

Out of this grew the idea of “jury equity” – the idea that a jury, even when the evidence is overwhelming, can refuse to convict. “That” – says the judiciary’s own website of a jury’s right to draw their own conclusions from the evidence – “is the basis of our jury system.”

Back to Trudi Warner. After Amy, her lodger, was jailed, she drew a placard which read: “Jurors – you have the absolute right to acquit a defendant according to your conscience,” as celebrated by the plaque in the Old Bailey.

She held this placard, telling no more than the truth, outside the court – and was duly hauled before the learned judge. The judge packed her off to the Old Bailey. The Old Bailey sent her off to the attorney general. So here we are.

Anyone who has spent five minutes looking at the history of juries will appreciate that they have a long and distinguished history of returning the “wrong” verdicts – exasperating centuries of judges, politicians and attorneys general.

They reached the wrong decision with the four protestors who hauled down the statue of Edward Colston in Bristol. They reached the wrong decision when they decided to acquit Clive Ponting, a civil servant who leaked confidential documents during the Falklands War. They reached the wrong decision with the trials of John Lilburne, the leader of the Levellers, in three trials between 1649 and 1653.

The then solicitor general, Edmund Prideaux, complained that it was unfair, that Lilburne had sought by “glossing speeches or insinuations, to wind into the affections of the jury, as he cunningly and smoothly hath done, by calling them his fellow citizens and the like”. Which sounds awfully like Judge Silas Reid to me. Solicitor general Prideaux only lasted a year in office. Michael Tomlinson, who recommended prosecuting Trudi, was out in 15 months. Soon forgotten – unlike the centuries-old tradition of juries being free to act on their own consciences.

Lord Devlin, a great judge of the old school, described the jury as “the lamp that shows that freedom lives”. But in 1978, he warned of the gathering signs “that the jury has another half-century or so of life to be spent in the sort of comfortable reservation which conquerors, bringing with them a new civilisation, assign to the natives whom they are displacing”. That would take us to 2028.

Legal opinions may differ on Judge Reid’s approach. Jury intimidation is clearly a wrong thing. But can you imagine anything less intimidating than an elderly woman with a polite, handwritten placard? Vinnie Jones would not be cast in this movie.

I have had a dog in this fight. In 1997, still finding my feet as editor of The Guardian, we defended a libel case brought by five policemen caught up in a corruption probe. Such actions were commonplace then: in the previous 33 months, the police union, the Police Federation, had brought no fewer than 95 defamation actions. The score was at that point 95-0.

I believed in the integrity of our reporter, Duncan Campbell, and that this was a story that deserved to be told. We ended up in front of an aged and ailing judge about whose grasp of the case it is perhaps kindest to say little.

His summing up was intended to leave the jury in no doubt as to who should win. Magnificently, the jury ignored him and voted with their conscience. To them, the case smelled rotten. They were right.

Trudi is up before the High Court on 18 April, trying to stop the case against her, with the redoubtable KC, Clare Montgomery, arguing her case. And, rather wonderfully, protestors have started turning up outside Crown courts all over Britain with the same placard that got her into such deep water.

Trudi has single-handedly made the law look an ass. It is incredible, with a 66,000-case backlog in the criminal justice system, that a single hour of court time is wasted on trying to convict and jail her.

If the ridiculous happens – and Trudi is arraigned at the Old Bailey – I’ll be there with my placard. And I hope thousands of others. And I hope they eventually give her a plaque alongside Edward Bushell.

Alan Rusbridger, a former editor of The Guardian, is editor of Prospect magazine