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Jury Nullification

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Very elegantly put, although very amusing since CO2 emissions are not responsible for damaging the planet.

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.

Written by anubis

October 1st, 2016 at 10:02 pm

Magna Carta

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Many people regard Magna Carta as the first Constitutional guarantee of the basic liberties of the English-speaking world.

Fewer people know that Magna Carta wasn’t imposed on King John just because he abused his power (which after all has been true of most kings and governments throughout history), but because he had handed away the sovereignty of England to a foreign governing institution in Europe. That institution was The Holy Roman Empire.

John had unilaterally handed England to Pope Innocent because earlier arguments with Rome had left England under an interdict (a kind of nationwide ex-communication), so John was facing the possibility of an invasion from a strong, Catholic France with a papal blessing that would have made finding allies impossible and inevitably led to John’s defeat. To split his enemies, and peel away the Church from France, John gifted the pope sovereignty over his entire country and leased it back as the pope’s vassal. For a time, Britain was ruled from Europe.

For the barons at Runnymede, that was the last straw: they responded to the fundamental transfer of power out of their country and forced Magna Carta on John.

More than 500 years later, the (British) founders of the USA, in the very tradition of which Magna Carta was an early part, would make explicit the intuitive principle on which the Barons had acted then, and many have acted since: that the power to govern is delegated by the people governed, in whom it entirely resides. But that principle is so deep in the Anglo cultural psyche that even the barons who faced King John at Runnymede were not the first to state it in some way or another: the Charter of Liberties of Henry I had already formally established in the year 1100 that the rule of the king was by consent and that those who made the Law were not above it.

By this long-standing principle, power is lent by the people, in whom it resides, for a limited time to those in government for the purpose of protecting the rights of those people. A British prime minster today has not more right to give his country away to a foreign power than King John had to give the country away to a pope, and it makes no difference how the prime minister is chosen. And no king or prime minister has any more right to do either than a tenant of my house has to sell or give my house away just because he is temporarily living in it. Power to govern is no more possessed by those who are allowed temporarily to exercise it, than my house is possessed by the person temporarily allowed to live in it.

The argument today for moving power further away from the people upward to a trans-European super-state is wrong on its face: it rests on the idea that legitimacy follows from the fact that the representatives who gave away that power are democratically elected, as if democratic election gives them something they can never possess, or the right to give away something that can never be theirs.

Since that idea is false, the European Union as currently conceived is anti-democratic and anti-liberal by definition.

Moreover, as has been said many times, since democracy is the exercise of kratos (power) by the demos (people), there can be no democracy without a demos . Britain, France, Spain etc. all have their own demos . Europe does not. Setting up an election and putting lots of people from many countries in one building on fat salaries does not make it so.

A weaker claim to self-justification made EUrophiles is that the “important” decisions in the EU are made by unanimous consent … indeed, they point out, didn’t Prime Minister Cameron recently veto some proposed regulation that would hit London’s financial center?

The response from principle is two-fold. First, the British government retains a veto only in some areas of policy that affects Britons. In the rest, Britain carries a weight of about 8% in the making of decisions, so if the British want control over their waters for the purposes of fishing, for example, even if every single Briton and every single British representative voted in Europe to keep what is theirs by international law and convention, then it would make no difference if most of Europe would rather keep taking it. This is exactly why the demos is important: lack ofdemos is what turns a situation in which five sheep or five wolves are voting on what to eat for dinner into one in which four wolves and a sheep are taking exactly the same vote.

In this fishing example, if the British had 0% of the decision-making power in the EU, because it was out of it, it could keep 100% of the rights to its waters and its fish. The British people know this, even if many cannot articulate it in those terms: they know they don’t need to be “in Europe” to persuade the European masters with only 8% representation, to stop doing things that hurt them – when the only reason for the discussion in the first place is that their government gave away their national resources and right to properly demo(s)cratic representation.

Evidently, based on the results of elections throughout Europe last weekend, the demos of other nations feels just the same way – as they should.

The drawing of a line at the giving away of governmental power is a very basic, human and healthy self-protective instinct, which has been evident at many more points in history than just 1215. In 1258, for example, the Provisions of Oxford against Henry III, which established parliament, was also a response to the King’s giving away power to a foreign European aristocratic class. Hundreds of years later, the Glorious Revolution would follow the exiling of a king on account of his desire to bring French law and religion to England. And as the normal, healthy act of a real demos , UKIP’s victory in the UK’s European elections is a similar reaction to a similar travesty.

UKIP’s leader, Nigel Farage, was recently called a bigot on account of his remark about being able to understand people’s discomfort at a group of Bulgarians or Romanians to move in next door, and many have sought to insult his supporters with the same accusation.

I have traveled much of the world and I am convinced Britain is one of the most tolerant nations in it. What Nigel was getting at, albeit clumsily, was that the lack of power of the people to control even who comes into their country is a very serious thing indeed. Bulgarians and Romanians are the current placeholders because they are the latest groups who non-British politicians have determined should be allowed into the British nation, regardless of any consequences for the people who are already there. It is the latest, highly visible symbol of just how completely the kratos of the British demos has been given away.

Britain has welcomed foreigners and diversity for as long as I have been alive. It’s not that Bulgarians and Romanians aren’t welcome there. To use the metaphor of the rented house again, it’s not that the owner doesn’t welcome guests: it’s that basic fairness and common sense demands that the owner should be the one to choose whom he welcomes and on what terms – rather than the current situation in which the person who chooses who enters the house and on what terms is some foreign chap who got hold of it in a fraudulent sale by a recent tenant who never owned it.

With respect to Farage’s notion that Britons might be more concerned about an influx of Bulgarians than of Germans: as history shows, it’s human nature to feel more concerned when the uninvited people in one’s house are less familiar, appearing, rightly or wrongly, to have very different house rules and fewer means to support themselves – especially when the owner is no longer allowed to decide who may or may not take out of the family’s rainy-day fund that has been carefully built up over generations.

In summary, none of this is about ethnicity or race. It is about fairness, rights and their flipside, responsibility .

Kipling said it best.

The Saxon is not like us Normans. His manners are not so polite.

But he never means anything serious till he talks about justice and right.

When he stands like an ox in the furrow, with his sullen set eyes on your own,

And grumbles, “This isn’t fair dealing,” my son, leave the Saxon alone.

Voting UKIP doesn’t make someone a bigot. It makes him human, with a wish to protect his fellow countrymen, what is good in his culture, and what has been earned by a demos at great cost over a long time. A UKIP voter is likely drawing the line exactly where it has always been drawn throughout history: where those who are temporarily delegated power by one demosgive away the kratos that is not theirs, to those who are part of another demos altogether.

It’s not bigoted to resist that. It is right. Moreover, in historical time, liberty and democracy both depend on it.

No. A bigot is someone who, as a result of their own prejudices, treats members of a group with fear, distrust or hatred. A much better example of one would be a person who treats those who vote differently from himself as inferior based not on knowledge of them as individuals, or of the reasons why they see their country as they do, but on a simplistic assumption about them made only because of the political party they support – allied, perhaps, with a poor sense of history or, for that matter, democracy.

Those who enjoy irony, or historic parallels, or both, will appreciate the following.

King John, after signing the Magna Carta, immediately appealed to the Pope to annul that pesky referendum on, and limitation of, his power. Pope Innocent gladly obliged; he would have made a good President of the European Union today, refusing to accept any of the national referendums that rejected the European Constitution.

That act of bad faith by John, rejecting the will of his people in favor of the will of his European overlord, caused the barons to revolt, and open war to break out in England …

By that standard, and the standard of most of history, UKIP’s electoral victory seems like a very minor protest indeed.

Written by anubis

August 10th, 2014 at 8:40 pm

Posted in Uncategorized