The jailing of three U.K. climate activists should provide another warning to anyone expecting judges to defend liberties. The current legal establishment will adapt itself to whatever legal framework is ordained by the rulers.
By Craig Murray
Three climate activists in two separate trials have been sent to jail by Judge Silas Reid using the entirely arbitrary powers of Contempt of Court, because they insisted on telling the jury that their protests had been motivated by the climate crisis and “fuel poverty,” the inability of people to keep their homes adequately heated.
Juries are an essential safeguard from injustice by the state.
That ordinary, randomly selected people decide on guilt or innocence has been fundamental to the criminal law in the United Kingdom for many centuries.
The simplistic maxim is that the judge determines the law while the jury determines the facts. However, it is often more complex than that. There are several areas of law (the misuse of computers act is an example) where a public interest defence is permissible, and the jury may find themselves deliberating on whether a disclosure was in the public interest.
Perhaps the most famous example in my lifetime was the trial of Clive Ponting under the Official Secrets Act. Clive was a member of this blog community and a fairly regular commenter here.
Nécrologie de Clive Ponting, haut fonctionnaire puis historien britannique notamment connu pour avoir divulgué des documents sur le naufrage du général ARA Belgrano pendant la guerre des Malouines (source : Washington Post) pic.twitter.com/bSjQdgYR93
— Florian Louis (@flr_louis) August 18, 2020
[Tweet in English: Obituary of Clive Ponting, senior civil servant then British historian, notably known for having disclosed documents on the sinking of General ARA Belgrano during the Falklands War (source: Washington Post)]
Clive had been a very straight and professional middle-ranking civil servant in the Ministry of Defence at the outbreak of the Falklands War. He blew the whistle on the truth of the sinking of the Argentine battleship, the General Belgrano.
For those who do not know, Argentina had occupied the Falkland Islands one month before the attack on the Belgrano. A British naval task force had set sail to retake the islands. Furious diplomatic efforts were underway to find a peaceful solution, led by the United States and by Chile.
When the British nuclear submarine Conqueror sunk the Belgrano, killing 323 people, it ended the prospects of a peaceful settlement to the conflict.
The resultant Falklands War catapulted Prime Minister Margaret Thatcher from extreme unpopularity to extreme popularity on a frenzy of jingoism. It thus enabled Thatcherism and the destruction of both heavy industry in the U.K. and of the principle of the mixed economy.
The Belgrano was sunk deliberately and completely unnecessarily [outside Britain’s declared Exclusion Zone] in order to precipitate full on war, at a time when it posed no threat to British forces and was 250 miles south west of the Falklands and steaming away from them. While there was a zig zag pattern to Belgrano’s movement to try to evade detection, the pathway is undeniable. It is the bottom-most track on this map.
The scale of loss of life was such that the U.K. embarked on an entirely misleading campaign to talk up the threat posed by the task force, and by referring to the zig zagging denied it was heading back to the mainland and away from the Falklands.
The Ministry of Defence’s internal communications were of course quite clear that the Belgrano was heading away when it was sunk, and these are what Clive Ponting leaked to Labour MP Tam Dalyell.
(Readers of this blog will see a particular irony as Clive became a staunch supporter of Scottish Independence while Tam was a stubborn opponent).
Clive never denied it was he who had leaked the documents. His defence, when tried at the Old Bailey, was that it was in the public interest to reveal the truth.
This defence was flatly rejected by the judge. He refused, in closed court without the jury, the defence barristers’ argument that it was for the jury to decide whether the leak was in the public interest.
Jury Defies Judge’s Order to Convict Ponting
In his instructions to the jury, the judge directly ordered them to convict and specifically stated that the public interest could only be whatever the government of the day defined as the public interest.
Here is an account from one of Ponting’s legal team:
“Ponting instructed my firm on the recommendation of Liberty (then still the National Council for Civil Liberties). Brian Raymond, our criminal law partner, conducted the case. Brian was a pioneer in media relations. He recognised the importance of frank contacts with serious and capable journalists. The public was told Ponting’s side of the story.
The public interest defence was clearly arguable. Mr Justice McCowan at the Old Bailey trial allowed defence evidence on governmental and constitutional practice from the former Home Secretary Merlyn Rees and the eminent Cambridge professor Henry Wade but in the jury’s absence he rejected the defence submission that whether or not Ponting had acted “in the interest of the state” was an issue of fact for the jury. Astonishingly, his ruling meant that what was in the interest of the state was whatever the government said it was.
After that, conviction and imprisonment seemed a foregone conclusion. Before we came to court next morning we had a farewell breakfast at the Savoy Hotel. Our client arrived with a small suitcase containing toothbrush, shaving kit and other items he would need as a guest of Her Majesty.
While the jury deliberated, we gloomily discussed our grounds of appeal and the prospects of winning in Strasbourg. Then came the verdict. When the foreman said “not guilty” there was a gasp of amazement followed by spontaneous applause. It was an incredible result because it meant the jury had flatly ignored the judge’s direction. Plainly they thought Ponting had done the right thing.”
The judge was furious. He could not actually send the jurors to prison for disobeying his direct instruction to convict, but he banned them from future jury service — which they probably weren’t too sad about.
Official Secrets Act Amended
In 1989 the U.K. government amended the Official Secrets Act to make plain that there is no public interest defence permissible. Nevertheless I know for certain that in the cases of both Katherine Gun and myself, whistleblowers were not prosecuted for fear the jury would refuse to convict.
Arguably the acquittal of the removers of the Coulson statue in Bristol were also acquitted by a jury returning what the establishment call a “perverse verdict.” There have been a whole series of acquittals of activists carrying out actions against the Raytheon arms factory in Belfast.
The notion of people not being allowed to explain their actions to the jury has a distinctly draconian tinge. The judge can tell the jury to ignore the arguments, and the jury can decide whether or not to listen to the judge, but to not allow the accused to put their arguments at all?
It sounds pretty fascist to me.
I do not know whether Judge Reid’s vicious approach is personal or part of a state backlash to protest, particularly over climate change. Jonathon Schofield had asked the Ministry of Justice under a Freedom of Information request whether there has been an instruction to judges. His simple FOIA request has not been answered and is now past the deadline.
I have recently finished reading Irmtrud Wojak’s biography of Fritz Bauer, the concentration camp survivor who became the most important prosecutor of the Nazis in Germany, tracking down Adolf Eichmann, a major organizer of the holocaust, and putting the Auschwitz management on trial.
Bauer was repeatedly frustrated by the German legal establishment of which he was a member, and what comes strongly out of the book is that the Nazis did not have to find their own lawyers and judges. Great chunks of the German legal establishment had simply adapted themselves to applying Nazi laws.
The same legal establishment continued seamlessly post-Nazi rule, pretending nothing much had happened. As Wojak writes:
“However, Bauer’s views did not catch on in West German rulings, which, while acknowledging them on an ethical level, denied them legal legitimacy and accepted them only under highly restricted conditions. In many cases, the relevant rulings even went so far as to accept the validity of the Nazis’ system of norms, down to the principle of the right to self-assertion of the state.”
As the U.K. continues with the harsh slide towards authoritarianism, it doesn’t need new judges, however far it moves toward fascism. The current legal establishment will adapt themselves to the legal framework of whatever sort is ordained by the rulers.
Anybody expecting judges to defend liberties is likely to be sorely disappointed.
They will happily remove the ability of juries to defend liberty too.
Craig Murray is an author, broadcaster and human rights activist. He was British ambassador to Uzbekistan from August 2002 to October 2004 and rector of the University of Dundee from 2007 to 2010. His coverage is entirely dependent on reader support. Subscriptions to keep this blog going are gratefully received.
This article is from CraigMurray.org.uk.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
Same as it ever was….
Judges in England on being sworn in, are required by various statutes to take two oaths: the oath of allegiance and the judicial oath :
Judges’ first Oath of Allegiance:
I… do swear by Almighty God that I will be faithful and bear true allegiance to His Majesty King Charles the third, his heirs and successors, according to law. So help me God.
Judges’ second Judicial Oath:
I… do swear by Almighty God that I will well and truly serve our Sovereign Lord King Charles the third in the office of…, and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will. So help me God.
They serve the monarch first and foremost. And for the monarch, read the Esthablishment, of which the monarch is the personification.
As do the police, armed forces, Church of England clergy, various civil servants and members of parliament.
Its not negotiable. Members of parliament, for example, elected to the House of Commons, to the Scottish Parliament, or to the Welsh Senedd who refuse to take the oath or affirmation are barred from participating in any proceedings, and from receiving their salaries.
Members of the House of Commons could also be fined £500, and have their seat declared vacant “as if [they] were dead”, if they attempt to do so.
Our so-called national anthem, “God Save The King”, makes no mention of the nation, the people. Its focused entirely beeseeching God to look out for the interests of the monarch (read as : the Esthablishment).
The rest of us have to just take our chances.
The British national anthem (like that of a couple of other European countries) was introduced in the wake of the French Revolution as a pro-monarchy propaganda measure. At least in places where republican sentiment was stronger, the citizenry were ordered to attend mass gatherings to practice singing the new anthem, under the watchful eye of government officials — with good reason, as shown by a report from Newcastle-on-Tyne. The people in the back of the crowd, who could not be identified, sang an alternative version, “God save great Tom Paine” ….
And yet, the US, Britain and the collective West insist they are waging war on authoritarianism promoted byRussia and China. Do these people have any understanding of the term hypocrisy?
No, they don’t. As far as they are concerned it is one of those things that others do, not them. They are always right, others are always wrong.
That’s how they operate, by either redefining the term or bluntly denying any possibility of guilt or responsibility.
Agreed. It was mostly a rhetorical question. Washington is overdue for its comeuppance from the whole world. It’s coming and sooner than these smug posers think.
Thanks to Craig for reminding us of these matters especially Clive Ponting.
One need only note the social circles in which judges (especially those assigned to the most significant courts) circulate to realize the strata with which their sympathies can be expected to lie.
As a wage-payer, “the people” is far too nebulous an entity. It’s much easier, instead, to assign “payer-power” deference and respect to officials in charge of the payment apparatus. Without a doubt, THOSE are the individuals (clearly, not the jurors) on whose good side their beneficiaries will take great pains to be on.
Everybody knows this; but the belief in (the fiction of) a free and fair judiciary is so essential to convincing people to “go along to get along” blinds us both to that reality and to its logical extensions.
That said, the Controllers are finally arriving at the point in their grand plan where their usual concealment techniques are proving ineffective, leaving only explicit expressions of wholly indifferent power as the preferred and practical go-to.
How far they with that depends on how cowed, distracted and possibly co-opted we the people truly are.
Well said, Bruce. As is in this post, Craig Murray.
Very good comment to a equally good article. Unfortunately for modern civilizations the establishments’ only audible voice is the MASTER’S VOICE. Only popularly-caliberated megaphones can breech through elite deafness !
Craig Murray, thank you so much! for bringing to all of us the truth.
All our respect and admiration to you!
The judge held them in contempt for disobeying his order not to use climate change as a defense, as that had no legal bearing on the case. In fact, everyone is aware of climate change and fuel poverty, and the views of Insulate Britain are well known. But their actions, closing roads, have lost any sympathy the public may have had.
As a lawyer for 58 years I know what Murray says is true.
No wonder Ireland wants to remain separate from these sick f*cks and Scotland would like to become so.
Strange that Scotland had the chance in 2014, but voted to remain with the UK. I will never understand that.
In the 1980s, Dr. Henry Morgentaler provided abortions in Montreal and elsewhere in Canada in flagrant violation of the law.
When a case against him came to trial, the defence conceded that facts of the case, which on the face of it compelled conviction.
However, the jury acquitted him.
Canada’s crown prosecuted him again, and again a jury acquitted him. Eventually, the government realized it could not get
a jury to convict Morgentaler and stopped trying. Soon after, the government* started a process to legalize abortion.
(* a Liberal government; large factions of the Conservative Party would still like to outlaw abortion in 2023)