Free speech victory

Lady-Justice, statue on the Old Bailey / Credit : Commons Wikimedia - Lonpicman

Julie Ward on pushing back on Tory curbs on right to protest

#WeAreAllTrudiWarner became a growing cry on social media sites last year when the then Prosecutor General, Tory MP Michael Tomlinson KC, decided to pursue a case of contempt of court against a Quaker and retired social worker in her late sixties for holding up a placard outside a Crown Court in London in March 2023, bearing the words: “Jurors: You have an absolute right to acquit a defendant according to your conscience.”

These words echo a plaque on the wall of the Old Bailey which highlights the principle of “jury equity” dating back to 1670 when a jury returned not guilty verdicts regarding two Quakers who were on trial for “preaching to an unlawful assembly” having violated the Conventicle Act which forbade religious assemblies of more than five people outside the auspices of the Church of England. The jury found the two “guilty of speaking in Gracechurch Street” but refused to add “to an unlawful assembly” which infuriated the judge who decreed that the jury “shall not be dismissed until we have a verdict that the court will accept”.

The jury modified the verdict to “guilty of speaking to an assembly”, whereupon the judge locked them up without food, water or heat. After a two-day fast, the jury returned a not guilty verdict. The judge then fined them for contempt of court and removed them to prison until the fine was paid. William Penn (one of the accused preachers who was later the founding father of Pennsylvania) protested that this violated Magna Carta, and was forcibly removed from the court. The jury foreman paid the fine but jury member Edward Bushel refused to comply and successfully applied for a writ of habeas corpus. The remaining jurors were subsequently released.

This case established the independence of our jury system, and it is this principle which the #DefendOurJuries campaign focused on with silent protests outside courts across the land all bearing placards with the same reminder that Warner had used. Warner’s initial action took place outside a courtroom where people were on trial for causing a public nuisance by sitting in a road to protest the government’s failure to tackle the climate crisis, demanding that the government take urgent action to insulate homes. The judge refused them permission to tell the jury why they were protesting, banning them from mentioning the words “climate change” or “fuel poverty.”

Warner has been supported by the Good Law Project, a crowd-sourced justice project, which along with other organisations such as Liberty, voiced concerns about the erosion of our democratic right to protest.

A spokesperson for Liberty, said, “This decision is concerning, especially when seen in the wider context of increasing attacks on our right to protest. We all have the right to make our voices heard on issues that matter to us, but this government has continually narrowed our options for standing up for what we believe in.”

The Public Order Act 2023 builds on an existing legal framework governing the policing of protests, introducing new and expanded police powers, creating a new criminal offence of intentional obstruction during a suspicion-less, protest-related stop and search. The crime is punishable with up to one months’  imprisonment, a fine of up to £1000, or both, and puts peaceful protesters at risk of being criminalised.

The new Act came hot on the heels of the Police, Crime, Sentencing and Courts Act passed in 2022, enabling the police to impose new conditions on a protest beyond its location, timing and the numbers involved, as laid out in the 1986 Public Order Act. An unjustifiably noisy protest may now be shut down. People taking part in a protest no longer have the defence of being ignorant of the conditions imposed upon them. The maximum prison sentence for someone who has damaged a statue has been increased to 10 years. A new statutory offence of “intentionally or recklessly causing public nuisance”, which previously existed in common law, was introduced, carrying a maximum prison sentence of 10 years.

Many of the hundreds of people like me taking part in silent protest vigils in solidarity with Warner as her case was being heard knew that we too were risking arrest for reminding jurors of the importance of their role in safeguarding our democracy. A UN Rapporteur warned of a dangerous growing trend across Europe for governments to limit freedom of assembly and the right to protest, particularly in relation to climate protesters. Sadly, the UK leads the field in repressive laws at present. Thankfully, for Warner common sense prevailed as on April 22nd a High Court judge dismissed the Solicitor General’s case against her, saying that she had “accurately informed potential prospective jurors about one of their legal powers”. She was, in effect, ‘a human billboard’ according to her lawyer.

As Warner’s case reached its conclusion news broke that Dr Sarah Benn, a GP and NHS doctor of more than 30 years, who served on the frontline during the COVID pandemic, had been found guilty of  “professional misconduct”’ for holding a sign saying “Stop New Oil”, in breach of an injunction against all forms of protest obtained by the fossil fuel giant, Valero. This is quite clearly not a time to rest on our laurels.

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