Daily archives: March 8, 2023

Fascist Judges 169

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.

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.

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 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 UK and of the principle of the mixed economy.

The Belgrano was sunk deliberately and completely unnecessarily 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 UK embarked on an entirely misleading campaign to talk up the threat posed by the Belgrano, and by referring to the zig zagging denied it was heading back to the mainland and away from the Falklands.

MOD 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.

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.

In 1989 the UK 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 Colston 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 Eichmann 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 UK 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.


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