A pair of Just Stop Oil activists have denied allegations of criminal damage and interference with key national infrastructure in relation to an incident where they sprayed paint on aircraft at Stansted Airport.
Jennifer Kowalski, 28, of Dumbarton, and Cole McDonald, 22, of Brighton, also denied an allegation of aggravated trespass when they appeared in custody at Chelmsford Magistrates' Court on Saturday, 22nd June 2024.
You can read more about these particular offences in my earlier articles about them:
- Criminal Damage
- Public Order Act 2023: Locking On, Tunnelling and Interference with Key National Infrastructure
- Aggravated Trespass
As the pair have denied these offences, I am limited in what I can say about them.
However, there is no dispute that the allegations arise from the pair's visit to the airport on the morning of Thursday, 20th June 2024.
As their visit was filmed and uploaded to Just Stop Oil's social media channels, there is also no dispute that they cut a hole in the perimeter fence, approached several aircraft and discharged fire extinguishers containing orange paint at them.
Having heard all that there will be many readers scratching their heads and thinking "how on Earth can they plead not guilty?"
The matter in dispute will undoubtedly be whether or not the pair had a lawful excuse for their actions, which is a defence against criminal damage; and/or a reasonable excuse for their actions, which is a defence against interference with key national infrastructure.
At the first hearing the prosecutor provisionally valued the cost of the clean up at £52,000. The cost of repairing the fence and additional security has not yet been quantified.
The prosecutor also told the court that 75 flights had been disrupted during the 38 minute incident, which had negatively impacted on thousands of passengers.
Kowalski and McDonald were remanded in custody until their plea and trial preparation hearing at Chelmsford Crown Court on Monday, 22nd July 2024.
That's enough scene setting. Now to the title topic.
These offences could probably have been dealt with by summary trial (e.g. at the Magistrates' Court) although it is quite evident that many Just Stop Oil activists have a preference for trial on indictment (e.g. by jury at the Crown Court). I have previously discussed some of the perceived advantages and disadvantages of each mode of trial.
In England and Wales a Crown Court jury has 12 members, of which at least 10 need to agree in order to reach a majority verdict. That is quite a high bar to achieve and so it should be, when potentially a person's good name, liberty and livelihood are at stake.
As things currently stand, it is a defendant's right to elect jury trial when accused of an either-way offence. There are two main advantages of this to Just Stop Oil defendants. Firstly, it affords their cause greater public interest and a much wider audience; secondly, as the bar for conviction is so high, there is a real chance, particularly in cases like this where the victims are anonymous and faceless, that some jurors may be sympathetic to the Just Stop Oil cause.
In a recent Court of Appeal judgment (AG Ref 1 of 2023 [2024] EWCA Crim 243) the court held that the "political and philosophical beliefs" and "reasoning and motivation" of a defendant offering a climate change defence were "too remote" to constitute a lawful excuse for any damage caused.
Bearing that in mind, there is little prospect that a District Judge or Magistrates would ever accept such a defence on its own merits. It is entirely possible, however, that a Crown Court jury, even when clearly and correctly directed by the judge, might still give weight to such an argument. Of course, with the decisions of the jury being regarded as sacrosanct, no-one would ever know if certain jurors, sympathetic to the defendant's cause, were swayed in such a direction.
This is a bit of a problem, particularly when you have defendants putting forward such divisive, political opinions that resonate with the public at large. It is entirely possible that defendants who are guilty according to the law, are acquitted due to sympathetic jurors being swayed by their emotions.
So what can be done to mitigate the risk of a jury arriving at a verdict clouded by their own sympathies and prejudices?
It's a tricky one, given the reverence attached jury trial. Anyone who dares to suggest that improvements might be needed, as I am doing, faces the prospect of being shot down in flames.
What I would say is that in the Scottish criminal courts a jury consists of 15 members, of which at least 8 - e.g. a simple majority - are needed to reach a verdict. For centuries such a system has served Scotland well. Perhaps that is the direction we need to head in England and Wales?
Alternatively, do we need a system whereby the verdict in ideologically divisive cases is reached via a combination of both judge and jury fact finding? The jury can decide on matters of actus reus, whereas the judge can determine facts of mens rea? Trials suitable for such hybrid verdicts would be determined by the Divisional Court beforehand.
I'll park those ideas for now.
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