Last summer, 29 people stopped a morning train carrying 1,000 tonnes of coal on its way to Drax power station in Yorkshire. Drax is the largest single source of carbon dioxide in the UK and the largest single producer of the acid-rain-forming nitrous oxide in Europe. If it were a country it would be ranked in the top 100 greenhouse gas polluting nations. It burns coal - a lot of it. Like 13 million tonnes of it every year.
So it is for these reasons that 29 people, concerned about climate change and frustrated by government ineptitude felt obligated to take direct action. They stopped the train with a bright red flag on a stretch of track which only went to Drax. Careful to follow standard railway safety rules, calmly boarded it as some people spoke to the driver, and began shovelling the coal off the train.
One was dressed as a canary traditionally used by miners to warn of dangerous pollution in the air. They dropped a banner saying ‘Leave It In The Ground’ - the only surefire strategy to stop runaway climate change unlike some other pseudo-solutions promoted by government and industry.
They were eventually arrested, but they made a bold and effective statement, caused no harm and only minor disruption and the resultant media they generated helped draw attention to the climate-damaging impacts of burning coal.
A few days ago their trial began, and it was clear that the Crown Prosecution Service was intent on influencing the jury to ignore the climate change arguments they expected the ‘Drax 29’ to use. In their closing arguments, the prosecution made a cynical effort to dismiss the activists’ political and moral convictions as some sort of gambit to win-over the jury: ‘The Crown suspects that what is happening here is that the defendants may seek to play on your emotions, and your sympathies with their cause, if you have them, so as to find them all not guilty.’ And in order to bully the jury into towing the line, the CPO added: ‘If you were to do this, by effectively ignoring the evidence, that would not be true to your oath or affirmation. If they are guilty in law of the offence, then the only true verdict is one of guilty. The Crown says that they are preparing a misuse of the court process to continue the protest action which they started when they boarded that train just over a year ago.’
The next day, the defendants tried to build up their defense by calling in expert witnesses and evidence on the damaging effects that coal burning has on the climate on the basis that they were motivated to take the action they did (which they didn’t dispute was illegal), on the basis that it was justified in light of the greater crime of climate change. The judge however repeatedly stopped them from building such a case and instructed the jury to ignore the climate evidence and focus only on whether or not they were guilty of the specific crimes.
The argument the defendants used was precedented. A similar case involving six Greenpeace activists accused of property damage at the Kingsnorth power station in Kent, was acquitted on the basis that the protestors had a ‘lawful excuse’. Unfortunately, the presiding judge, Justice Spencer, did not see fit to permit this justification in the court proceedings and so the defendants were left to cobble together what defence they could.
And what a defence! Here is the closing arguments made by one of the defendants Jonathan Stevenson yesterday:
Members of the jury.
I’m going to try to summarise why we feel that we are not guilty, why we feel that what we did was right, despite the very proper laws against obstructing trains, why we feel that it was the wrong decision of the Crown Prosecution Service to prosecute us in this case, and why we don’t feel that we are guilty of a crime.
I want to start by responding to your request for clarification yesterday about “lawful excuse”. His honour may say [in his summing up] that it’s true that there are ways in law to make space for circumstances, to allow a bigger picture to be considered.
These ways can have different names for different offences — so for example “lawful excuse”, which you asked about yesterday, applies only to the charge of criminal damage. For example, last September, a jury in Kent found six protesters not guilty of committing £30,000 worth of criminal damage to Kingsnorth coal-fired power station, since the group were acting to prevent a greater crime. Those on trial did not disagree that criminal damage is a crime, just that, in certain circumstances, it may be necessary and proportionate to cause some damage to prevent a great crime. That jury agreed.
His honour may explain that there is a legal defence of “necessity”, that applies to most laws, and that it was on the basis of “necessity” — the fact that we believed our actions were going to save lives and that we had to act — that we prepared a legal defence before this trial. Along with many legal professionals we were very disappointed by his honour’s decision prior to the trial that this defence was not available to us in law. Nonetheless we decided not to appeal against it. We felt that you the jury would be free to decide on the facts of a case as you find them - and not just the ones his honour tells you are relevant.
It’s up to you to decide whether what we did was necessary. I would like to emphasise to you that we believed and we still believe that it was urgently necessary to do what we did, and proportionate to the scale of the problem, that the consequences of that train taking coal into Drax are so serious that any reasonable person would understand our reasons for stopping it. To help explain why we were so sure of the links between Drax’s activities and deaths around the world we had expert witnesses lined up to talk to you about the immediate and ongoing harm that Drax’s emissions cause. However from what evidence we have been able to get across to you, with his honour’s indulgence, we hope that you can see that these facts speak for themselves, and our actions, though harmful, were indeed necessary to try to stop a greater harm. And if you agree with that then you still have a legal right – as the jury - to find us not guilty.
You’ve heard it said already I think, that the judge decides about the law, but the jury decide about the facts. What does that mean? It means you the jury can decide as you see fit. You the jury have a constitutional right to follow your own judgement and not necessarily follow the judge’s directions to find us guilty. In other words, you get to make the final decision. In law this principle is called the jury’s power of nullification, and it’s been a right that has been regularly used over the years when juries have felt the law has been applied harshly, or inappropriately, or unjustly, or incorrectly.
Perhaps I can explain this with a quote from a very senior judge, Lord Denning. He said:
“This principle was established as long ago as 1670 in a celebrated case of the Quakers, William Penn and William Mead. All that they had done was to preach in London on a Sunday afternoon. They were charged with causing an unlawful and tumultuous assembly there. The judge directed the jury to find the Quakers guilty, but they refused. The Jury said Penn was guilty of preaching, but not of unlawful assembly. The Judge refused to accept this verdict. He threatened them with all sorts of pains and punishments. He kept them ‘all night without meat, drink, fire, or other accommodation: they had not so much as a chamber pot, though desired’. They still refused to find the Quakers guilty of an unlawful assembly. He kept them another night and still they refused. He then commanded each to answer to his name and give his verdict separately. Each gave his verdict ‘Not Guilty’. For this the judge fined them 40 marks apiece and cast them into prison until it was paid. One of them Edward Bushell, thereupon brought his (case) before the Court of the King’s Bench. It was there held that no judge had any right to imprison a juryman for finding against his direction on a point of law; for the judge could never direct what the law was without knowing the facts, and of the facts the jury were the sole judge. The jury were thereupon set free.”
This was affirmed as recently as 2005, in relation to the case of Wang, where a committee of Law Lords in the highest court in the land, the House of Lords, concluded that: “there are no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty”. So you do have that right to decide for yourselves. And unlike in 1670, his honour won’t be able to fine you, or put you in prison for making what he sees as the wrong decision.
There have been many cases over the years where juries have decided, on reflecting more broadly, to find people not guilty despite directions from the judge. For example, the case of Zelter and others who were accused of damage to an aircraft about to be used for bombing civilians. In all of these and others the judge said that the defendants admitted the offence and so must be found guilty. But the jury chose to look outside the limited view of the court room, and to find them not guilty.
The freedom that you have is what enables the law, where necessary, to move forward. It is what allows you to look beyond the confines of this court to the wider world, and to make a judgement based not just on law, but to make a judgement based on justice. Justice is the force that underpins and breathes life into the law, and it is your role as the jury to see that justice as you see it is done.
We all know that times change, and what was acceptable in one era may not be acceptable in another. You have heard of how it was once legal to own other people, how it was illegal for women to vote. Well one way or another we are going to have to stop burning coal and move on from the fossil fuel era. And that means that the law will eventually have to change and acknowledge the harm that carbon emissions do to all of us, by making them illegal. The only question is whether the law will catch up in time for there to be anything left to protect.
We are not trying to tell you how to decide. We are only trying to say that it is up to you, and we are grateful for that.
I want you to think back to that situation of there being a person on the tracks ahead of that train going on its way to Drax. Members of the Jury, it may sound like a strange thing to say but in truth there is a person on the branch line to Drax. The prosecution have not challenged the facts we presented to you on oath about the consequences of burning coal at Drax. 180 human lives lost every year, species lost forever. There is a direct, unequivocal, proven link between the emissions of carbon dioxide at this power station and the appalling consequences of climate change. That many of those consequences impact on the poor of other nations or people in Hull we don’t know and should not in any way negate the reality of this suffering. We got on that train to stop those emissions, because all other methods in our democracy were failing. Just because we don’t know the name of the person on the tracks or where they live or the exact time and day of their dying, does not in our view mean they are less worthy of protection.
We don’t dispute that there’s a law against obstructing trains. We don’t dispute that obstructing trains is a crime and should continue to be a crime. We just argue that in this case, we should not be found guilty of a crime for trying to block this train on its way to Drax.
On Tuesday the prosecution argued that what we did was quite simply a crime, and as a result we should be found guilty. They were trying to suggest that if you find us not guilty, the whole world would fall apart. We argue that the more likely route to the whole world falling apart is if we continue burning coal in the enormous quantities that it is being burnt at Drax.
His honour may say that we have been telling you stories, that we are trying to introduce emotions into the trial to distort the evidence. But we have been telling you the facts. If those facts move you, that’s because they are moving, and they are what moved us to do what we did.
We are happy to be judged by you, the jury.
Thank you for taking the time to listen to us.
Justice Spencer however was unmoved. Not only that, but he insisted that the jurors should disregard the climate arguments. He wrote:
‘I rule as a matter of law that … evidence concerning the burning of fossil fuels and global warming is inadmissible. To rule otherwise would allow these defendants to hijack the trial process just as surely as they hijacked the coal train.’
As Greenpeace’s Ben Stewart (who was one of the six Greenpeace activists who were acquitted in their trial for alleged criminal damage to Kingsnorth power station) observed, Judge Spencer didn’t even seem to agree that there was any particular need for urgency with climate change – something the government, the UN, the scientific community, the Tories and even Drax don’t dispute! ‘There may well be people who would argue against it, certainly against the urgency [of acting], I don’t know, but it’s irrelevant.’
The defendants now face a £30,000 fine, plus legal expenses and possible community service along with a permanent criminal record. It’s unclear whether they will appeal, many of them must feel exhausted by the whole affair by now. Despite that, there was no sign that their exceptional conviction and determination was in any way diminished by the process. Brian Farrelly, one of the activists said after the guilty verdict was passed: ‘Justice Spencer may think global warming is irrelevant but that doesn’t mean the British public does. The climate change movement is growing with every passing week and we’re not waiting for the politicians to act. This won’t be the last case where climate protesters are in court for taking peaceful direct action, and while some judges may think climate change is irrelevant, they won’t be able to hold back the tide forever.’
And it’s not as if there aren’t mixed messages coming from our political leaders. Was it not Al Gore who said: ‘I can’t understand why there aren’t rings of young people blocking bulldozers, preventing them from constructing coal-fired power plants.’? And wasn’t it the UK’s own climate minister Ed Miliband who invoked the Suffragettes and the anti-Apartheid and feminist movements (none of which were well-known for their law-abiding tactics): ‘When you think about all the big historic movements, from the suffragettes, to anti-apartheid, to sexual equality in the 1960s, all the big political movements had popular mobilisation… Maybe it’s an odd thing for someone in government to say, but I just think there’s a real opportunity and a need here.’
This weekend a coalition of groups ranging from Greenpeace and the National Union of Students to Oxfam and the Women’s Institute will be taking Ed Miliband’s words to heart when they encircle Kingsnorth to form a giant human band or ‘Mili-Band’ to protest against the expansion of coal power generation on the site. When the Women’s Institute mobilise their members to encircle power stations in order to prevent ‘A World Without Jam’, government and industry can no longer simply dismiss climate activists as being just a fringe group of ‘radicals’. One thing is for sure, Ed Miliband is right to allude to the need for civil disobedience on a scale akin to what past movements such as the Suffragettes and the ANC depended upon in order to effect meaningful and lasting change in society. We require the actions of brave individuals like the Drax 29 to help us get our foot of the gas pedal before we drive off the cliff of runaway climate change.
To help contribute to the Drax 29’s legal expenses, please make a donation to:
Midlands Conservation Club
Sort Code 30-98-00
Account number 02911400
For more info on the Mili-Band action at Kingsnorth this weekend, visit the No New Coal website.