Two climate change protesters were acquitted of criminal damage in the United Kingdom in a rare success using what has been called the necessity defense to justify civil disobedience.

A jury in Southwark Crown Court in London took the minimum time of two hours to reach a unanimous ‘not guilty’ verdict for Roger Hallam and David Durant, despite instructions from the judge that they should not consider the defendants’ claim that their actions were necessary to address the climate crisis.

When ordinary people faced the truth, they understand the climate and ecological emergency better than our politicians,” said Hallam, one of the co-founders of Extinction Rebellion, an action group that staged high-profile protests that disrupted large parts of central London last month.

Both men had been charged with criminal damage following a fossil fuel divestment campaign in 2017. Hallam, Durant and six others had sprayed chalk paint inside a building at King’s College. Four of the people involved were released without charge, while the other two pleaded guilty in court.

Hallam, 52, was also charged with a separate offense of criminal damage, for painting the words ‘divest from oil and gas’ on a wall at King’s College a month earlier.

Hallam and Durant were charged with causing nearly $10,000 (£7,000) of damage and faced a maximum sentence of 18 months in prison.

Both men represented themselves in the three-day trial. Durant said they could not afford a lawyer and were not eligible for legal aid, and they also believed by arguing their own case they had “a bit more leeway to make arguments that our lawyer didn’t want to make. We wanted to present ourselves as just normal people to a jury.”

Both admitted they had caused the damage but pleaded not guilty, arguing that their actions were a proportionate response to the climate crisis.

The judge, Michael Gledhill QC, repeatedly interrupted Hallam and Durant, saying climate change was “irrelevant” to the case and told the jury that the defendants could not rely on the necessity defense.

We were shut down quite a lot,” Durant said. “We’d try to read out case law and we were shut down.” He said he and Hallam snuck climate arguments into their defense and were helped when the prosecution showed clips of their filmed divestment campaign. “That was really handy,” he said. “That was making the case for us.”

Durant, 25, said the 2017 campaign was successful because King’s College London subsequently announced it would divest £14 million from fossil fuels and pledged to become carbon neutral by 2025. “Now I’ve won this court case it feels like I’ve won again,” he said.

Tim Crosland, director of climate campaign group Plan B and a legal adviser to Extinction Rebellion, described the decision as “incredibly significant.”

This comes just after we’ve had Extinction Rebellion in London, so members of the jury will have been conscious of all of that”, he said. “It’s a test of public opinion and how a randomly selected sample of the population have responded to this”.

More than 1,000 people were arrested during the week-long Extinction Rebellion protests in the UK. Around 50 were charged with an offense and will be appearing in court over the next few weeks.

Crosland said the decision does not set a strict legal precedent but will still be influential. “It’s going to give the prosecution pause for thought. Do they spend more money prosecuting these cases now? And future jurors will read about this and feel emboldened to do what their peers have done.”

The first known success of the necessity defense came in 2008, when six Greenpeace activists, charged with shutting down a coal-fired power plant in Great Britain, successfully used a version of it and were acquitted. Other activists in the United States and elsewhere have tried to use the defense, but haven’t had clear-cut success.

A case against protesters known as the valve-turners went to trial last year in Clearwater County, Minn., after an appellate judge ruled the protesters could use the necessity defense to justify their shutting down of a tar sand pipeline. The trial ended in an acquittal of the protesters, Annette Klapstein, Emily Johnson, Steve Liptay and Benjamin Joldersma, but in anti-climatic fashion when the judge ruled the pipeline company could not prove the activists had caused any actual damage with their protest.

In the case of another valve-turner, Ken Ward, in Washington State, an appeals court last month overturned his conviction for burglary after he broke into a pipeline facility and turned off a valve. The Washington Court of Appeals ruled that the trial court had violated his Sixth Amendment right to present a defense when he was not allowed to use the necessity defense. Ward was granted a new trial.

Isabella Kaminski

First published by Climate Liability News, 10 May 2019