We hardly need to recall the words of District Judge Wilkinson in his recent summation at Wolverhampton Magistrates’ Court, after fining nine Just Stop Oil supporters for blockading an Esso Refinery in April 2022. His words of praise for the defendants – describing them as intelligent, articulate, good people responding to a cataclysmic global threat – have gone viral. They’ve been shared and re-shared by people fascinated by a judicial system that seems to be at odds with itself: on the one hand, condemning and fining; on the other hand, praising and admiring.
Vested interests and agendas in our law
But for the conservative press and legal bloggers who later added their take on the controversy, it was the first part of Judge Wilkinson’s statement that was of most interest. Here he said that the law should be applied ‘without fear or favour’, and that a court of law is not a court of morals.
In theory, this position is right. The law has to transcend morality if it’s to work as a fair, stable structure – protecting citizens from the subjective flux of other people’s opinions.
This impartiality is the foundation of justice: an essential aspect of the rule of law. But at the same time it’s a long way from what happens in the real world. The law is made by politicians in the first place, so inevitably reflects the priorities of power. Secondly, even in its application – while meant to be ‘without fear or favour’ – it can be captured by vested interests and agendas.
Insulate Britain trials
There’s no clearer example than the Insulate Britain trials currently proceeding through the courts. From the moment the CPS decided on their charge, the cards were stacked against the defendants.
Rob Stuart, in Open Democracy, describes how being charged with public nuisance led to him, and his fellow Insulate Britain defendants, being silenced.
“The prosecution chose to break with legal tradition by pursuing the archaic common law offence of causing a public nuisance. This is worrying – if a charge is not defined in statute, there are no prosecution guidelines to follow.
“The decision had abhorrent consequences. According to the judiciary, public nuisance is interested only in the consequences of an action, i.e. whether we supporters of Insulate Britain had caused a nuisance to the public. There is no consideration at all of the circumstances of the action, i.e. our motivations for doing what we did.”
So, by selecting one charge over another, the CPS laid the ground for Judge Silas Reid’s silencing of the defendants. Because motive is not taken into consideration in public nuisance cases, the defendants could be forbidden from even mentioning the climate crisis and fuel poverty.
They were left literally defenceless, enduring show trials which involved the utterly wasteful, Kafka-esque exercise of poring over traffic data to prove a point that was already obvious: they meant to create a traffic jam, and they did.
Unable to accept this absurdity, three defendants, David Nixon, Giovanna Lewis and Amy Pritchard bravely committed contempt of court by telling the truth despite the prohibition. And merely for mentioning the crises that provided the full context for their actions, Judge Reid gave them prison sentences. Despite taking an oath to ‘tell the truth, the whole truth and nothing but the truth’, they lost their liberty for doing just that.
For Judge Reid, the reasoning goes like this: bringing wider moral considerations into the courtroom is emotional manipulation, skewing the neutrality of the legal process. This is the position taken by conservative legal writers and thinkers, like Matthew Scott and David Allen Green, who argue that the law should be applied impartially, rising above moral and political positions.
On the cusp of legal and social change
Yes, in an ideal world, it should be. But in fact, the opposite is happening: the law is being weaponised and manipulated by state interests, with charges specifically chosen to preclude defences, which then means defendants can’t speak about context and motivation. This is surely a huge red flag to lawyers wanting to defend the historic purpose of the law.
There’s another really important truth emerging through these legal discussions and controversies. Agreed: a court of law is not a court of morality. But equally, if morality is constantly and intensively pushing in the opposite direction to legal principles, we have a crisis in the making. When that happens, we know we are on the cusp of major legal and social change.
After the April 2019 uprising of Extinction Rebellion, District Judge Noble suggested that he and other judges wouldn’t be allowed to carry out too many of the ensuing trials, lest “our sympathies overwhelm us”. What could be more revealing? If the law is threatened by a moral imperative that’s too huge, too inescapable, too overwhelming, to be subdued by its current structures, then those structures have to change. And change they will.
The law must catch up
Many examples from history come to mind here. Just over a century ago, it was still illegal for women to vote. But the moral course of history changed, and so eventually did the law. Law Society member Jonathan Goldsmith reminds us of Gandhi, on trial for resisting the Raj, meeting a conflicted response from Justice Robert Stonehouse Broomfield. In the 1982 film by Richard Attenborough, Justice Broomfield stands in respect, and asks the whole court to stand with him, when Gandhi is brought before the court. The judge bows before him, before sentencing him to six years in prison.
The same happened in Wolverhampton Magistrates’ Court this February. A judge was torn between an overwhelmingly powerful moral position and the abstract machinery of the law. And when this starts to happen, again and again – when the conflict becomes more acutely uncomfortable with every trial – we know one thing for sure: change is on the way.
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