Rosemary Webster & Ors v The King

This is an appeal against conviction brought by the 3^rd, 4^th and 5^th appellants with leave of the single judge. The 1^st appellant applies for an extension of time in which to renew her application for leave to appeal against conviction, following refusal by the single judge. She also applies for leave to vary her appeal notice, pursuant to CrimPR 36.14(5), by adopting the grounds on which leave has been granted to the appellants identified above. The 2^nd appellant renews her application for leave to appeal against conviction, following refusal by the single judge.

The 1^st and 2^nd appellants made it clear at the hearing of the appeal that they wish to rely on the same ground for which leave was granted by the single judge in the other cases. All five appellants stood trial together and that ground concerns a direction given by the judge which affected all cases equally. The 1^st and 2^nd appellants lodged grounds of appeal which took different points, or expressed the same point differently, which explains why leave was granted only in three cases. The 1^st appellant was also late in lodging her appeal notice because it was sent to an incorrect email address. We consider that it is in the interests of justice that all appellants should have leave to rely on this common ground and we therefore grant the extension of time and leave to vary the appeal notice in the case of the 1^st appellant. We grant leave to appeal to both the 1^st and 2^nd appellants to advance this ground. Mr McMinn on behalf of the 1^st appellant did not make any additional submissions in support of it and adopted those of Mr Blaxland KC and Mr Greenhall. We grant a representation order for his work on this case. The 2^nd appellant did lodge written submissions and made oral submissions at the hearing. The leave we have granted extends only to the common ground of appeal.

These appellants were tried by a jury at Inner London Crown Court before His Honour Judge Reid. The trial took two working weeks. It started on Monday the 19 February 2024 and verdicts were returned on the Friday of the following week, on the 1 March 2024.

The indictment contained one count which alleged an offence of destroying property, contrary to section 1(1) of the Criminal Damage Act 1971. The particulars of offence were given in these terms:-

“PAMELA CLAIRE BELLINGER, AMY PRITCHARD, STEPHANIE AYLETT, ADELHEID RUSSENBERGER and ROSEMARY WEBSTERon the 1st day of September 2021 without lawful excuse destroyed glazed windows and panels belonging to JP Morgan Chase Bank intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged.”

The appellants were shown on extensive CCTV footage in the act of causing this destruction, and admitted that they had done so. They had come equipped with tools to damage the windows and panels and used them. The cost of repairs was put at over £200,000 which came as a surprise to some of those who had done the damage. The sole issue at trial was whether they had a lawful excuse for doing so. Section 5 of the 1971 Act provides:-

(2)

A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse—

(a)

if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances;

Each appellant gave evidence at the trial that she had believed that the shareholders of JP Morgan Chase Bank were entitled to consent to the destruction of the windows and panels, and that if they had known of the destruction and its circumstances would have consented to it. Their action was designed to advance the cause of Extinction Rebellion which is a group which sought to carry out various types of protest activity in order to promote their views about climate change and the appropriate governmental response to it.

They were sentenced on 12 June 2024:

The prohibited activity requirement stated that they were not to enter any part of any commercial airport in England and Wales (except in specified circumstances).

A victim surcharge of £156 was ordered in each case. In the case of Russenberger, the 3^rd appellant, the conviction placed her in breach of an earlier conditional discharge and the appropriate surcharge should have been that stipulated at the time of the earlier offence, and was £149 rather than the £156 imposed. We direct that the surcharge amount should be varied accordingly.

This ground of appeal is in these terms:-

On the first day of the trial, 19 February 2024, posters were found displayed on the street in the vicinity of the court. The posters made reference to the right of jurors to acquit according to conscience. Some stated:

“MESSAGE TO THE PUBLIC: If you are on a JURY you have an ABSOLUTE RIGHT to acquit (not guilty) a Defendant on your CONSCIENCE for any reason you choose” [emphasis as in original].

Prior to jury selection, the judge indicated that he intended to direct the jury in relation to the posters that what was written was not correct in law. A draft direction was provided to counsel which was the subject of argument. In the form given to the jury later that day it read (with the key sentence for this appeal underlined):

SYMPATHY / PREJUDICE

Judges need to approach cases without fear or favour to either side. You 12 are now Judges – the Judges of the facts in this case. You have to approach your task without any sympathy or prejudice. You will hear some evidence that this case arises from action taken under the banner of Extinction Rebellion. You may have seen things about actions taken by people associated with Extinction Rebellion or other organisations such as Insulate Britain or Just Stop Oil. You may have views about those actions or those organisations. You may have views about Climate Change and the like.

Whether you do or do not have any views about any of those matters you have to put all of those to one side. Similarly you must put aside any sympathy or prejudice to any defendant at all stages. Your task is to try this case only on the evidence which you hear in this trial and to approach that evidence coolly and calmly without any sympathy or prejudice for or against any defendant. This is not a trial about Climate Change or whether the actions of any of the organisations I have mentioned should be applauded or condemned. It is a trial about criminal damage and in particular it is a trial about what happened on 1September 2021 and the involvement of these defendants – it is nothing more than that and nothing less.

BURDEN OF PROOF

The prosecution bring this case and it is they who must prove the defendants guilty. The defendants do not have to prove their innocence. The burden of proving a defendant’s guilt always rests on the prosecution.

STANDARD OF PROOF

How does the prosecution prove a defendant’s guilt? The answer is by making you sure of it. Nothing less than that will do. If after considering all the evidence you are sure that a defendant is guilty then you have to find them guilty. If you are less than sure then you must find them not guilty.

ROLE OF THE JURY

Some of you may have seen posters directed at jurors as you came to court this morning. There is no suggestion that these 5 defendants have anything to do with those posters at all.

Whoever has written the posters directed at jurors and put them up is misstating the law and, even worse, is improperly trying to influence jurors. You have each taken an oath or affirmation at the start of trial to return a true verdict according to the evidence. It is only on the evidence you are able to try the case and not on conscience or favouritism or the like. If you are sure of guilt on the evidence you have to convict. If you are not sure then you have to acquit. It is a criminal offence for a juror to do anything from which it can be concluded that a decision will be made on anything other than the evidence in the case. It is a criminal offence for people to encourage jurors to do so.

Sometimes jurors are unhappy that they have to convict sometimes jurors are unhappy that they have to acquit but, as I know you will ensure, justice is only done where jurors follow their oaths or affirmations and try the case on the evidence and provide a true verdict according to that evidence.

This is one of the reasons why I gave you the direction on Sympathy and Prejudice and why it is so important.

It is agreed that when the judge referred to “a criminal offence” in the passage underlined, he had in mind section 20C of the Juries Act 1974 which is in these terms (so far as relevant):-

20C Offence: jurors engaging in other prohibited conduct

(1)

It is an offence for a member of a jury that tries an issue in a case before a court intentionally to engage in prohibited conduct during the trial period, subject to the exceptions in subsections (4) and (5).

(2)

“Prohibited conduct” means conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue.

(3)

An offence under this section is committed whether or not the person knows that the conduct is prohibited conduct.

On the fifth day of the trial, Friday 23 February, a juror sent a note stating that they had “anxiety issues” and that there were four protestors outside court and that one had “raised a placard” whilst the juror was smoking outside the court. The juror turned away and when they turned back the placard was lowered. The judge responded to the note at 11:32am as follows:

“Members of the jury, just before we carry on with the case, I had a note from one of your number. I think they were excellently prompt at court this morning, in fact probably early, and they said this: ‘When I entered through the stone gates there were four protesters. Two stood each side. I stood in front of the entrance to the building, and an older male protester stood facing me, and raised his placard whilst I was smoking. I turned away, and when I rotated, the sign was lowered and the protester rotated away.’ Members of the jury, in relation to that, there are some people outside court, I think today, and yesterday, and maybe as we go on in the trial (usually I think in the mornings) who think it is a good idea to hold up placards which refer to jurors. Those people are trying to influence jurors. In doing so, it seems (to me, at least) they are committing a criminal offence. Sadly, it is not the first time we have had such people outside the court. What we can say from all the experience we have is that these people are entirely peaceful, and to my knowledge, have never sought to speak to a juror. The important thing is, members of the jury, that if you do happen to see such people or such placards, just ignore them. Your role is to try the case on the evidence and to return a verdict according to the evidence. I do not expect any person holding a placard or otherwise to try to speak to you. As I said at the start of the case, I have never come across that happening. In the unlikely event that anybody does, let me know about it, I will then get them arrested, and they will likely go to prison, but, as I said, I do not expect it to happen, and I will be very surprised if it does.”

The placard referred to contained these words:-

“JURORS YOU HAVE AN ABSOLUTE RIGHT TO ACQUIT A DEFENDANT ACCORDING TO YOUR CONSCIENCE”.

An identical placard displayed in the same place on 27 March 2023 during an earlier trial was the subject of an unsuccessful application by the Solicitor General to commit Trudi Anne Warner for displaying it. This was rejected by Saini J in a judgment handed down on 22 April 2024, [2024] EWHC 918 (KB) (“Warner”), a few weeks after the events with which we are concerned.

Another reference was made to arrests by the judge on the fifth day of the trial when he asked jurors to consider the possibility of the trial needing to sit beyond the original time estimate. The judge said:

“I know each of you is only expecting to do two weeks of jury service. I do not expect any of you to do a day over two weeks of jury service, if even for the whole 10 days, but can I just ask you over the weekend (I am not going to ask you on Monday - it is just in case this arises) just to think about if we run into unforeseen problems in this trial, and your jury service needed to extend to the start of the week after, would there be any fundamental problem with you doing so? Can I tell you something that would not be a fundamental problem is: ‘My employer might have a difficulty with it, and might give me trouble in my job’, because no employer is going to give you trouble in your job about attending for jury service. If they do, they will see what that dock looks like, and off they will trot to prison when I jail them for contempt, so that is not a concern people need to have, although it may be something that you want to check.”

The judge summed the case up to the jury on the afternoon of 28 February 2024, when he dealt with the law, and on the afternoon of the 29 February when he dealt with the facts. Counsel and the 4^th appellant in person made their speeches between the delivery of those two parts of the summing up. The legal directions were given to the jury in writing, and they had retained copies of the direction we have set out at [12] above. Because we are required to consider the overall impact of what the judge said to the jury in order to decide whether that earlier direction rendered the convictions unsafe, we will deal with the summing up in a little detail. It is not criticised in any ground of appeal which is pursued before us.

The judge began with a conventional direction about the different roles of the judge and the jury in a jury trial. This included :-

“In this trial our functions have been and they remain quite different. Throughout the trial the law has been my area of responsibility. I now have to give you further directions as to the law which applies in this case. And, when I give you legal directions, you have to accept them, and you have to follow them. If I get the law wrong, there is another court, it is the Court of Appeal, to set me right. So, if I tell you something about the law, you have to follow that.

I am also obliged to remind you briefly of the prominent features of the evidence you have heard. But, although it is my job to remind you of it, it is only your responsibility to judge the evidence, and your responsibility to make all decisions about the relevant facts of this case. And, when you come to consider your verdicts, it is you 12 and you 12 alone who will do that.

Now, you do not have to decide every point which may have been raised during the trial. You only have to decide such matters as will allow you to say whether the charge laid against each of the defendants has been proved. You do that by having regard to all of the evidence. You form your own judgment about the witnesses, which evidence is reliable; which, if any, is not.”

Later, the judge dealt with the document we have set out at [12] above, by saying this:-

“On the first document, 'Sympathy and prejudice', remember that applies. It is probably worth, at the start of your deliberations, just reading through it again, I am not going to go through it now. But the most important thing is that you are judges, and judges act without fear nor favour to one side or the other, they do not allow any sympathy one way or the other to come into their mind. They take a cool hard look at the evidence, and they decide where that evidence brings them.”

The judge had directed the jury about the burden and standard of proof at the start of the trial and he repeated that in his summing up before saying this:-

“Role of the jury, I will not repeat other than this: You may have seen some posters, you may have seen some people with placards. Ignore it all. You take the law from me, not from people who think they know what they are doing sat out on the street.”

The judge dealt with the issue in the trial, lawful excuse, in a further document which he read into the record in these terms:-

As I directed you earlier, someone only has a lawful excuse if someone has an honest belief that (a) the person she honestly believed would be entitled to consent to the damage, (b) would have consented to the damage, (c) had they known of the damage and its circumstances.

Now, I have already told you that the question is whether there was an honest belief. It is immaterial if a belief is justified, it matters not whether it is reasonable, and it does not even matter if it is mistaken, so long as it is honestly held.

Now, in relation to (c), the damage is the actual damage done, not any damage which may have been planned. Further in relation to (c) 'its circumstances' means the circumstances of the damage. That may include a number of things.

Now, it is important to note that the circumstances which are relevant when you are coming to consider the case are those of the damage and not other circumstances.

Now, in this case the circumstances would include the fact that it was being undertaken by people acting under the Extinction Rebellion banner, it was being done just after 7 am, it had been planned with a risk assessment having taken place, and the people doing it wanted to bring attention to J P Morgan's involvement in the funding of fossil fuels, or wanted to make a connection with J P Morgan, because they believed it was vital that J P Morgan changed their policies immediately.

The circumstances of the damage do not include any climate crisis which may or may not exist in the world at the moment, nor does it include whether non-violent direct action can prompt change. Whether climate change is as dangerous as each of the defendants you may think clearly and honestly believe, or it is not, is irrelevant as it does not form any part of the circumstances of the damage.

That is why at the start of the trial I told you this is not a trial about climate change. If it were, then you would need to hear detailed evidence from expert scientists about such matters, and you would need to make decisions as to how serious climate change is for the human race, but you do not need to make any such decisions as they are irrelevant to your deliberations. You need to concentrate on what is relevant.

As an example, if your conclusion was that a defendant did or may have honestly believed that the person they believed entitled to consent would have consented to the damage if they had the same information and views on climate change as the defendants, then that would not be a lawful excuse. If however your conclusion was that a defendant did or may have honestly believed that the person they believed entitled to consent would have consented to the damage if they had known that the defendant was committing the damage in order to bring attention to J P Morgan, and their, that is the defendants', belief that J P Morgan needed to change its policies, together with the other relevant circumstances, then that would be a lawful excuse, and the prosecution would have failed to prove the defendant's guilt.

So, those are just there as examples. In relation to that, it is your consideration as to whether the prosecution have disproved the defence or not. Remember the burden is on the prosecution, not the defendants. The defendants have raised evidence about it. Having done so, the prosecution have to make you sure the defence does not exist.

The judge provided a route to verdict to the jury which required them to consider and answer two questions. He put it this way:-

“Therefore, in respect of each of the defendants you should answer the following questions. If you do so, you will reach the true verdict for that defendant, whatever that verdict may be. I have not repeated the questions for each of the five defendants, because you will remember you need to treat them separately, so you are going to need to ask yourselves these questions five separate times:

So, question 1: Am I sure that the defendant, that is whichever one you are considering at the time, did not think about who would be entitled to consent to the damage prior to committing the damage on 1 September 2021?

Second question is: Am I sure that on 1 September 2021 the defendant did not honestly believe that whoever you conclude they did think or may have thought would be entitled to consent to the damage would have so consented if they had been aware of the damage and its circumstances?

Now, if the answer is yes, I am sure, in respect of either of those questions, then you would be sure, whichever defendant you are considering, is guilty. Because the prosecution would have disproved an honest belief in consent. If, on the other hand, you conclude that whichever defendant you are considering did or may have thought about who would be entitled to consent to the damage, and that the defendant did or may have honestly believed that person or persons would have consented to the damage, then that defendant is not guilty, and the reason they are not guilty is because in those circumstances the prosecution would have failed to prove their guilt to you.”

Each appellant had made no comment when interviewed by the police. As they were now saying that, as a matter of fact, at the time they destroyed the windows and panels they had each held a belief that the shareholders would have consented to the destruction in its circumstances (as defined years later by the judge), the judge gave a direction on the adverse inference which may be drawn from a failure to mention when questioned something which an accused person later relies on in court. No criticism is, or could be, made of the decision to give such a direction or of the terms in which it was given.

There were other legal directions including a direction about the relevance of the previous convictions of each appellant for offences related to protest, but nothing turns on them.

The factual part of the summing up dealt with the case of each defendant separately. In dealing with Bellinger, the 5^th appellant, the judge summarised her evidence on the consent issue.

“She said she had really thought that the shareholders would consent to what she had done because, due to the shock of having the windows broken, they would have no choice but to take action. She really believed that the shareholders would have consented, and that the damage caused was inconsequential compared to the size of their business.”

She also said that she had not discussed this belief with any of the others on trial, and that she was not aware at the time of the destruction that it would amount to a defence. This was the situation for all five appellants. They had each independently come to the same belief about something which none of them then realised was important because none of them then knew that it might afford them a defence. Having done so, they each independently failed to mention it to the police.

Ms Pritchard, the 2^nd appellant, said much the same about consent, and explained that she believed that the shareholders of JP Morgan would consent to the destruction and she wanted to create rapid and drastic change in J P Morgan's investments and businesses to stop harm. She wanted to change their behaviour.

Ms Aylett, the 4^th appellant said that she thought that JP Morgan were “green washing” which “she said was a fancy word for lying, and that J P Morgan were fiddling the numbers and lying about their figures.”

Notwithstanding her belief in JP Morgan’s dishonesty, she said:-

“……she believed there would be consent if the full circumstances were understood, because it might save people involved in J P Morgan's children's lives. The reason they would have consented is because the damage would have woken them up, so they could act, which was necessary, as they are not changing now, and have not done for the past 30 years. Had they been aware, that is J P Morgan, that there was an existential threat, and that direct action can work, then she believes they would have consented.”

She said that she had told the police about the fact that she believed the shareholders would consent, referring to words recorded on body worn cameras at the scene of her arrest, which were:-

“You know what the worse thing is? They full well know about it, J P, I just – and in 2017 they pledged by 2020 they would be converted to 100% renewable energy, but now we're in 2021, and they're continuing to open new or fund new coal mines, increase their exploitation of oil, gas and tar sands, we could go on and on and on, and they are funding – and they are killing our children, they are preventing us from being able to function”

These observations suggest strongly that she did not believe that this company would act, as she would say, decently and consent to their building being damaged if it would help the fight against climate change. On the contrary, she was saying that she believed that the company was entrenched in its homicidal behaviour and that she hoped that the damage would wake them up. If the change of heart happened as a result of the damage, it could not explain consent at the time of the damage. If at that time the company was willing to consent to its own property being damaged to wake itself up to the danger from climate change it would already have reached a state of enlightenment which would mean that the damage was no longer necessary. The judge commented only in these terms:-

“Well, it is a matter for you, but you may think that there is significance in her comment, 'They fully well know about it, J P'. And you may wish to consider how that fits in with believing that anybody associated with J P Morgan would consent to damage being caused.”

On one view of her evidence, the 4^th appellant was saying that she believed that JP Morgan would not consent to the damage at the time when it happened but that she hoped that it would persuade them to a state of mind where they would do so at some stage in the future. That would amount to a confession of guilt.

Ms Russenberger, the 3^rd appellant, gave evidence which was similar to that of Ms Aylett in that she was critical of JP Morgan but said that she believed that they would have consented to their property being damaged in order to persuade them to change their ways.

Ms Webster, the 1^st appellant, gave evidence to the same effect. The judge summarised it in this way:-

“She wanted by the action people within J P Morgan to connect with their heads and hearts their damage that they were causing. She said, 'Maybe our actions would be a bit of a shock, that eight women would come and challenge their bank, I am not sure'. ”

She expected the breaking of windows would bring about change. She thought shareholders would be able to consent to the damage. She said, 'If they had the full facts, and the full knowledge at the time, then they would have consented, and perhaps done something about it'. She hoped by the action they would recognise that change needed to happen.”

None of the appellants was able to explain why they thought “the shareholders” were the people entitled to consent to the destruction of these windows or panels, and none of them said that they had done any research to see whether that was true. None of them knew how many shareholders there were, or who they were. By section 5(3) of the 1971 Act “it is immaterial whether a belief is justified or not if it is honestly held”, but the lack of any sensible basis on which a claimed belief might be held is relevant to a decision about whether it was, in truth, actually held.

All of the appellants relied on evidence of their good character in support of their honesty and of their genuine commitment to the environmental cause. The judge reminded the jury about all of that, in each case, fairly. This was important because the prosecution case was that their evidence about their belief in consent from the shareholders had been made up jointly after the event.

At the end of that summary the judge said:-

“Well, members of the jury, that is a brief recap of the evidence. When you come to retire to deliberate on your verdicts tomorrow, remember that you take the evidence into account which you think is important, not just that which I have reminded you of, or indeed the parties. It is your assessment and your assessment alone of the evidence that matters.”

Nothing occurred between the time of the retirement of the jury and their returning verdicts which suggests that any of them were under the impression that they would be sent to prison if they acquitted these appellants. The only communication from the jury during that time was a note which was received on the morning they retired, 1 March 2024. This was from juror number 12 and said:-

“Is the requirement that the defendant believes that the relevant person consents in advance of any damage (eg a pet/child trapped in a car and window broken to free them) and not that the relevant person would consent to the damage after the damage was done as a result of the said damage?”

This was a relevant question in view of the evidence which had been given by the appellants, see our comments on the 4^th appellant’s evidence at [31] and [32] above. Those comments were made in the context of her evidence, but they are relevant to the defence of all appellants. The judge said:-

“Yes the requirement is that the defendant believes the relevant person consents in advance or more accurately at the time of the damage [being] done and not after”

A jury note may ask a question which only one juror considers to be important or may reflect a more widely held concern. It is not possible to make general comments about how a whole jury views a case from a note written by one of them. On the other hand, this note suggests that at least one of the jurors was properly addressing the evidence.

Mr. Blaxland KC submits that the direction we have highlighted at [12] above was wrong in law, and, even if it was correct, would still be fatal to the fairness of this trial because it could be understood to mean that if the jury acquitted these appellants they would be committing a criminal offence. The consequences of that could have been inferred by the jury from the two references to sending people to prison which occurred on the first Friday of the trial, at [14] and [15] above. In summary, he says that this could have been understood to mean that unless they convicted these people they would be sent to prison.

Mr Blaxland argues that the direction was wrong in law because the persons who were placing posters and carrying placards were not committing any criminal offence, and the judge should not have said otherwise. Here, Mr Blaxland relies on the decision of Saini J in the application for permission to bring committal proceedings against Trudi Warner, referred to above. This, says Mr Blaxland, is a serious error because in making it the judge wrongly directed the jury that they could not return a verdict based on their convictions or conscience, rather than their assessment of whether the prosecution had proved its case in law on the facts as they found them to be. He says that this, sometimes called “jury equity”, is a power, right or freedom which juries have in our law and which is jealously guarded as a bulwark against authoritarian and oppressive prosecutions.

Ms Pritchard set out her submissions on this issue in a document dated 1 December 2025, and developed them orally in a clear and deeply felt set of submissions. She produced an open letter signed by many people some of whom identify their religious beliefs and others do not. It says:-

“We, the undersigned, state that our conscience is an integral part of who we are. We cannot simply switch off our conscience if demanded to do jury duty or to perform any other civic duty. We cannot be ordered by a judge to ignore our moral convictions.”

In her submissions Ms Pritchard points to other protest cases on similar facts where the jury has been unable to reach a verdict as evidence that the judge’s direction at [12] above in this case made a difference and is the reason why the jury convicted these appellants.

The circumstances in which this court might ever have to consider what has become known as “jury equity” are limited. Jury equity, as commonly understood, results in acquittals and this court most commonly hears appeals against convictions. It arises in this case because it is submitted that the judge misdirected the jury about the legal effect of the posters quoted at [11] above, and the placard quoted at [15] above.

In the day 1 direction, set out at [12] above, the judge said:-

“Whoever has written the posters directed at jurors and put them up is misstating the law and, even worse, is improperly trying to influence jurors.”

In the first day 5 direction, at [14] above, he said, of the placard holders:-

“Those people are trying to influence jurors. In doing so, it seems (to me, at least) they are committing a criminal offence.”

The effect of both the posters and the placards was to inform jurors of their “absolute right to acquit” a defendant according to their conscience.

It is necessary to deal with the submission that the judge’s directions just cited were wrong in law. Saini J in Warner considered the question of contempt of court in these circumstances, but that decision is not binding on us.

The expression “perverse acquittal” has been used in submissions and is found in the cases. In this context, it means a verdict of not guilty where the application of the law to the undisputed facts should result in a conviction, but a jury acquits. Because a jury’s reasoning is not known, this is the only situation where it is necessary to consider whether a jury is, or should be, free to behave like this. If the outcome may have turned on the resolution of issues of fact then it would be wrong to describe it as perverse, even if that resolution seems far-fetched to some.

That freedom certainly exists as a matter of law, and depends on two related propositions:-

It has been clear since Bushell’s Case (1670) 124 ER 1006 that a juror may not be punished for refusing to return a guilty verdict having been directed to do so by a judge. The judgment of the court, in the report just cited, is not easy to analyse to extract a principle. This is partly because it deals with procedural issues which were current then but which are now understood only by legal historians. It is also affected by the regular use of Latin. It is, however, fairly clear that one of the complaints against the jury was that they had acquitted William Penn and William Mead “contra directionem Curiae in materia legis”, “contrary to the direction given by the court on a matter of law”. Later in the judgment, see pages 143-144, this expression is analysed and a number of difficulties with it are pointed out which arise in different contexts. Bushell’s Case may be best understood as recognising an immunity from punishment in respect of their decision as to what verdict to return, rather than a right to return verdicts in defiance of the evidence. This is the second proposition at [52] above.

A rather more expansive approach to “jury equity” was adopted by Saini J in Warner. He held that there was a clear principle of law that a juror had a power to return a verdict according to their conscience. A concession to this effect was made by counsel for the Solicitor General, see [14]. Saini J held that it did not matter whether this was a power or a right. He noted the tension between accepting this power or right and the directions which judges give to juries in all cases, and which Judge Reid gave to the jury in this one, namely that they must decide the case on the evidence and must follow the legal directions which the judge gives. That is reflected in the oath which jurors swear. Saini J held that this tension was addressed in this way:-

“19.

Counsel agreed that participants in the trial process cannot lawfully invite a jury to apply the principle of jury equity or indeed to inform them of it. That prohibition is how the common law squares the jury equity and the oath that jurors are required to swear.”

He held that it was not a contempt of court for Mrs Warner to hold a placard at the jury entrance which simply advised jurors of this power or right. He was so clearly of this view that he refused leave to bring the proceedings. Counsel could not refer to this in court, but Mrs Warner could do so in the street. We are not bound by this decision because it is a High Court decision on an application for leave to bring committal proceedings. There is therefore no occasion to lengthen this judgment still further with a detailed analysis of the reasoning. There appears to have been no reference to section 20C of the Juries Act 1974, and therefore no attempt to explain how Mrs Warner’s behaviour could be described as lawful, given the possibility that it constituted a criminal offence. Further, it is not clear to us that the judge’s analysis of the decision in the criminal libel case of the Dean of St Asaph, R v Shipley (1784) 4 Doug KB 73, is entirely accurate. Lord Mansfield stated the case for juries being bound to apply the law at the end of his judgment at 824, and then said:-

“In opposition to this, what is contended for?—That the law shall be, in every particular cause, what any twelve men, who shall happen to be the jury, shall be inclined to think; liable to no review, and subject to no control, under all the prejudices of the popular cry of the day, and under all the bias of interest in this town, where thousands, more or less, are concerned in the publication of newspapers, paragraphs, and pamphlets. Under such an administration of law, no man could tell, no counsel could advise, whether a paper was or was not punishable.

I am glad that I am not bound to subscribe to such an absurdity, such a solecism in politics; agreeable to the uniform judicial practice since the Revolution, warranted by the fundamental principles of the constitution, of the trial by jury, and upon the reason and fitness of the thing, I am of opinion that this motion should be rejected and the rule discharged.”

It is enough to say that we do not consider that the tension which Saini J identified is actually resolved by the rule that no-one in court can mention “jury equity”. First, the basis for that rule is not explained. We do not doubt it exists, but its origin and consequences require further consideration in this context. Secondly, it means that the directions which all judges give, and which Judge Reid emphasised in this case, that the jury must return a verdict on the evidence they have heard in court and follow the judge’s legal directions are mis-directions. The obligation assumed in the juror’s oath to return a true verdict according to the evidence is simply inconsistent with any power or right to do the opposite. Not speaking of it in court does not resolve this tension, it hides it. In short, we do not regard the decision in Warner as a sound guide for the decision we have to take, which concerns the meaning and effect of section 20C of the Juries Act 1974. This was not an issue which Saini J was required to consider, or did consider.

The authoritative formulation of the proposition that a judge cannot direct a jury to convict in any circumstances is the decision of the House of Lords in R v Wang [2005] UKHL 9; [2005] 2 Cr. App. R. 8. This affirmed the decision in House in DPP v Stonehouse (1977) 65 Cr.App.R. 192, [1978] A.C. 55 and held that there was no call to revise it. A judge must direct the jury as to the law and leave it to them to decide what verdict to return. The judge may express strong views about what the verdict should be, but must leave the matter for decision by the jury.

The freedom of the jury to return a perverse verdict (in the sense explained above) does not extend to a perverse verdict of guilty because a judge does have power to direct a verdict of not guilty where the power described in R v Galbraith (1981) 73 Cr App R 124 is exercised. We are not aware of any case where a jury has refused to follow such a direction and doubt whether they have any power or right to do so, simply because their consciences dictate that the accused is guilty. Lord Salmon, one of the majority in Stonehouse, having pointed out that the jury is not free to return a verdict of guilty regardless of the evidence, said this:-

“This rule, which has long been established, is to protect the accused against being wrongly convicted. But there is no converse rule — although there may be some who think that there should be. If the judge is satisfied that, on the evidence, the jury would not be justified in acquitting the accused and indeed that it would be perverse of them to do so, he has no power to pre-empt the jury’s verdict by directing them to convict. The jury alone have the right to decide that the accused is guilty. In any appropriate case (and this was certainly such a case) the judge may sum up in such a way as to make it plain that he considers that the accused is guilty and should be convicted. I doubt however whether the most effective way of doing so would be for the judge to tell the jury that it would be perverse for them to acquit. Such a course might well be counter-productive.’’

Nothing in Wang cast doubt on the power of a judge in an appropriate case to comment to the jury that the evidence suggests that a person should be convicted, which is not the same as directing that that they must convict them. Lord Devlin in Chandler v Director of Public Prosecutions (1962) 46 Cr.App.R. 347, [1964] A.C. 763, was quoted with approval by Lord Bingham, giving the opinion of the judicial committee of the House of Lords, at [10]:-

“The Attorney-General submitted that, while it is a question of fact for the jury whether the entry was for a purpose prejudicial, once it was proved that the purpose was to interfere with a prohibited place and to prevent its operating, then a judge should be entitled to direct a jury to return a verdict of guilty. With great respect I think that to be an unconstitutional doctrine. It is the conscience of the jury and not the power of the judge that provides the constitutional safeguard against perverse acquittal . . ..

A judge may, of course, give his opinion to the jury on a question of fact and express it as strongly as the circumstances permit, so long as he gives it as advice and not as direction. The trial judge indicated a fairly strong opinion in the present case, particularly at the end of his summing-up, when he hinted to the jury that there was only one verdict that they could in conscience return. But this was not improper, for even in relation to the limited facts which he left for their consideration, he told them clearly several times that the question was for them to answer . . ..’’

The importance of the freedom of a jury to return a perverse verdict of not guilty was emphasised in Wang at [16]:-

“But in England and Wales it has been possible to assume, in the light of experience and with a large measure of confidence, that jurors will almost invariably approach their important task with a degree of conscientiousness commensurate with what is at stake and a ready willingness to do their best to follow the trial judge’s directions. If there were to be a significant problem, no doubt the role of the jury would call for legislative scrutiny. As it is, however, the acquittals of such high profile defendants as Ponting, Randle and Pottle have been quite as much welcomed as resented by the public, which over many centuries has adhered tenaciously to its historic choice that decisions on the guilt of defendants charged with serious crime should rest with a jury of lay people, randomly selected and not with professional judges. That the last word should rest with the jury remains, as Sir Patrick Devlin, writing in 1956, said (Hamlyn Lectures, pp.160, 162),

‘an insurance that the criminal law will conform to the ordinary man’s idea of what is fair and just. If it does not, the jury will not be a party to its enforcement. . .. The executive knows that in dealing with the liberty of the subject it must not do anything which would seriously disturb the conscience of the average member of Parliament or of the average juryman. I know of no other real checks that exist today upon the power of the executive.’’’

At the start of every trial the jury is required by statute to be sworn. The Juries Act 1974 says:-

11 The ballot and swearing of jurors.

(1)

The jury to try an issue before a court shall be selected by ballot in open court from the panel, or part of the panel, of jurors summoned to attend at the time and place in question.

(2)

…….

(3)

No two or more members of a jury to try an issue in a court shall be sworn together.

CrimPR 25.6(8) and (9) provides:-

(8)

Each of the 12 or more jurors the court selects—

(a)

must take an oath or affirm; and

(b)

becomes a full jury member until discharged.

(9)

The oath or affirmation must be in these terms, or in any corresponding terms that the juror declares to be binding on him or her—

“I swear by Almighty God [or I do solemnly, sincerely and truly declare and affirm] that I will faithfully try the defendant and give a true verdict according to the evidence.”

The CrimPD 8.3 says:-

Preliminary instructions to jurors

8.3.2

After the jury has been sworn and the defendant has been put in their charge the judge must give directions to the jury that they are required to follow.

8.3.3

Every member of the jury must also be provided with their own copy of the notice ‘Your Legal Responsibilities as a Juror’. This notice outlines what is required of the juror during and after their time on the jury. The notice is not a substitute for the judge’s directions, but is designed to reinforce what the judge outlines in the directions. The court clerk must ensure a record is made of the provision of the notice. Jurors should be advised to keep their copy of the notice with their summons during the trial. At the end of the trial they should retain the notice.

8.3.4

The judge must warn the jury of the consequences of breaching the legal directions given to them, by informing them as to the potential juror offences and the potential custodial sentences for breach.

8.3.5

The Court should ensure that the jury has clear guidance on the following:

a.

The need to try the case only on the evidence and remain faithful to their oath or affirmation.

b.

The prohibition on internet searches for matters related to the trial, issues arising or the parties or anyone else connected with the case, including the advocates and judge.

c.

The prohibition on discussing the case with anyone outside their own number or allowing anyone to talk to them about it, whether directly, by

telephone, through internet facilities such as Facebook or Twitter or in any other way.

d.

The importance of taking no account of any media reports about the case.

e.

The collective responsibility of the jury for ensuring that the conduct of each member of the jury is consistent with the jury oath and the judicial directions.

f.

The duty to bring any concerns, including concerns about the conduct of other jurors, to the attention of the judge immediately, and not to wait until the case is concluded. The point must be made that, unless that is done while the case is continuing, it may not be possible to deal with the problem at all.

g.

The need to raise with the judge any situation in which a juror unexpectedly finds themselves in difficult professional or personal circumstances during the course of the trial.

h.

Any other legal directions relevant to the issues in the trial that the judge considers helpful to give at that stage.

The juror notice referred to in CrimPD 8.3.3 published by the Department of Justice (Footnote: ¹) is given to every juror at the start of every trial. It replicates, but in an accessible form, directions which the trial judge will give directly in his or her own words, which will sometimes be tailored to the case. It contains a number of directions which are relevant:-

“As a juror you have taken a LEGAL OATH or AFFIRMATION to try the defendant based ONLY on the evidence you hear in court.

This means the FAIRNESS of the trial depends on you following a few very IMPORTANT LEGAL RULES. These rules are explained to you in this Notice.

You need to READ these rules, and make sure you UNDERSTAND and FOLLOW these rules at all times.”

If you do not follow the rules in this Notice, you may be in CONTEMPT OF COURT and committing a CRIMINAL OFFENCE.

This is because these rules about what you can and cannot do as a juror are ORDERS OF THE COURT and also part of the CRIMINAL LAW. You can be prosecuted for breaking these rules, and if you are found guilty the maximum sentence is two years in PRISON, a FINE or both.”

What If Someone Tries to Speak to Me about the Case During the Trial?

It is ILLEGAL for anyone who is not on your jury to TRY TO SPEAK WITH YOU during the trial about the case or try to influence you in any way about your decision in the case. If this should ever happen it is very important that you TELL the COURT IMMEDIATELY. If it happens when you are not at court you should CALL THE POLICE.

It is your DUTY to REPORT any BREACHES of these rules by anyone, including any juror. This is necessary to ensure the trial is FAIR.

If every juror does not follow these rules the TRIAL may be STOPPED, the jury dismissed and the trial will have to start again with a new jury.

This will cause PROBLEMS for everyone involved in the case and will waste everyone’s time and a lot of taxpayers’ MONEY.”

The jurors in the current trial received this Notice.

Section 20C of the Juries Act 1974 is set out at [13] above. It was one of seven new sections inserted into the Act by section 74(1) of the Criminal Justice and Courts Act 2015. This followed a Law Commission Report in 2013 the effect of which was summarised by the Commission as follows:-

“We published a report explaining and setting out our recommendations in this area on 9 December 2013.”

In our report we recommended the creation of a new criminal offence for jurors conducting prohibited research. This recommendation was implemented by section 71 of the Criminal Justice and Courts Act 2015 (inserting a new section 20A into the Juries Act 1974). This change in the law will increase clarity and consistency for jurors on the boundaries of prohibited conduct, increase the legitimacy of the offence, which will now emanate from Parliament rather than the courts and introduce the usual criminal procedural and sentencing regime in place of the current civil process in the Divisional Court.”

Section 20C was not recommended by the Law Commission, but emerged when the Government introduced the Criminal Justice and Courts Act 2015 as clause 44 of the draft bill. We have read an extract from Hansard which was provided to us in which clause 44 was being discussed in the Public Bill Committee on 25 March 2014. An amendment was proposed and withdrawn on the assurance of a minister that he would give the proposition which had provoked it his “full consideration”. Even if any Parliamentary material were admissible under the rule in Pepper v Hart [1993] AC 593, this is not the kind of material which could be considered. As a matter of history the extract records:-

“… that the proposed offence stems from a case before the divisional court in 2013 where a juror posted on Facebook that he was trying a defendant charged with a sexual offence on a child, and suggested an intention not to try the case fairly.”

This was a reference to AG v Davey; AG v Beard [2013] EWHC 2317 (Admin); [2014] 1 Cr. App. R. 1. In this case the Divisional Court, presided over by the Lord Chief Justice, found that two jurors in unrelated cases had breached the instructions of the trial judges and were guilty of contempt of court. In a postscript the court set in chain the process which resulted in the practice which we have recorded at [63]. The case referred to in Parliament was that of Mr Davey. At the end of the first day of the trial in which he had been sworn as a juror, on his way home in the bus, he posted a message to his Facebook account, using his smart phone, which stated:

“Woooow I wasn't expecting to be in a jury Deciding a paedophile's fate, I've always wanted to Fuck up a paedophile & now I'm within the law!”

The Lord Chief Justice set out the conclusions of the court in Mr Davey’s case:-

“27 First, we are sure that, however immature Mr Davey was at the time, he knew” that, as a juror, he had a duty to act fairly towards the defendant in the trial, ……and to consider the case on the evidence. Not only had he taken an oath to that effect, but he asserted in his evidence that he understood he had to consider the evidence fairly and give a verdict he honestly believed was right on the evidence. However, after hearing evidence for a day, he posted the message we have set out to be read by his 400 Facebook friends. The message made clear to them that he would use his prejudices in deciding the case; the choice of the term “fuck up” underlined his deliberate disregard of the duties he had undertaken as a juror. We reject as untruthful his assertion that it was not meant seriously. By the deliberate choice of language he was making clear not only his interference with the administration of justice by disregarding his duties to act as a juror, but his plain intention to do so. There can be no doubt that the posting also interfered with the administration of justice in another respect; he had hoped that no one would be able to identify him or the court, but one of those to whom the message was addressed identified the court with the result that he had to be discharged from the jury as his actions had made it impossible for him to continue.

28 Secondly, it is clear from his interview and his evidence to us that he knew that he was not meant to discuss the case with anyone other than other jurors. He also knew that he was not meant to use the internet in relation to the case, as he told the police this in his interview. He told us that his motive in posting the message was to draw attention to himself and to make his friends think well of him; he was inviting responses. His explanation that he was not discussing the evidence was disingenuous in two respects. First, he was inviting comment by the posting. As he knew that he was not meant to discuss the case, by making the posting in terms which invited a response, he was initiating a discussion in breach of the judge’s order. Secondly, having accepted in his interview with the police that he knew he should not discuss the case, he invented the explanation (set out at length in his statement and persisted in in his oral evidence) that in the posting he was not discussing the evidence in contradistinction to the case. He made that distinction, because after being taken through the actual words used in most of the directions (as we have set out at [11]–[14]), he was able to advance a case that the prohibitions were against discussing the evidence as opposed to discussing the case. But, as he had said to the police, and as was clear from the notices in the jury foyer and lounge and what the judge said, he knew he should not discuss the case. His attempt to be disingenuous is further support for our finding that he knew he was breaking the directions, that that interfered with the administration of justice and that the overwhelming inference is that he also thereby intended to interfere with the administration of justice.

29 We also reject the contention that the jury booklet, the video, the speech by the jury manager and the warning signs are not directions that a juror must follow. They are provided to jurors under the authority of the court and are intended to make clear to jurors and to remind jurors during the trial of their obligations and what will constitute an interference with the administration of justice. We also reject the contention that the directions infringed arts 8 and 10 of the European Convention on Human Rights; the directions were plainly within arts 8.2 and 10.2.”

The single ground of appeal contains two propositions, set out at [10] above. The first identifies a misdirection of law about the conduct of those putting up posters or holding placards amounting to a criminal offence. The directions about that are summarised at [46] and [47] above. They are said to be wrong in law, because they were not misstating the law, improperly trying to influence jurors or committing a criminal offence. If they were wrong in these respects, the error does not undermine the judge’s correct legal directions about the offence which the jury were actually deciding. That is why the second proposition is necessary. This says that even if these directions about the effect of the posters and placards were correct, they should still not have been given in the terms they were because they may have caused jurors to fear that they would be imprisoned if they acquitted the defendants. That would be true, a fortiori, if the directions were wrong in law, but error is not necessary to the argument. The references to the power to imprison for contempt, given on the Friday, set out at [14]-[16] above are said to have compounded this problem. The judge’s statement of the effect of section 20C of the Juries Act 1974 in his written direction at [12] above is, in our judgment, substantially accurate. It is included in the passage quoted immediately below.

We have considered whether it is strictly necessary for us to decide whether the judge’s directions about the posters and placards were right or wrong, since the real gravamen of this appeal is the second proposition at [69], which must be addressed either way. However, it seems to us that the point does arise for decision as part of the chain of reasoning necessary to resolve the appeal. It may make some difference whether the judge was right or wrong in law in what he said about the posters, placards and section 20C. The written direction he gave was, for ease of reference, this:-

“Whoever has written the posters directed at jurors and put them up is misstating the law and, even worse, is improperly trying to influence jurors. ……… It is a criminal offence for a juror to do anything from which it can be concluded that a decision will be made on anything other than the evidence in the case. It is a criminal offence for people to encourage jurors to do so.”

The first sentence of this direction directs the jury that the law is misstated on the posters and placards. It is said that this is wrong, because the posters and placards were correct in advising jurors that they were free to return verdicts according to their conscience. The prejudicial effect, so it is said, is to deprive the appellants of the perverse acquittals they may otherwise have enjoyed. It is very hard to see how convictions could be rendered unsafe by the speculative loss of a chance of a perverse acquittal. The argument also assumes that this jury, unlike that in Bushell’s case, may have been talked out of following their strongly held convictions by this direction.

The judge had in mind the impact of section 20C of the 1974 Act on what has been called “jury equity”. He was viewing the posters and placards as invitations to jurors to commit offences against the Act. There may have been difficulties in the way of any prosecution of those who fixed the posters or carried the placards on this basis, but this is not a case where it is necessary to address those. The section 20C offence is committed by conduct which causes a conclusion to be drawn about how a decision will be taken. We are not concerned with whether they could be successfully prosecuted but with whether the direction that they had “misstated the law” renders the convictions unsafe. In that respect we rely on the point made at [71] above, but also on the point made below about the context of this direction and the impact of the summing up on the fairness of the trial process. Saini J in Warner recorded an agreed position that it was wrong to make any mention of “jury equity” in the course of the trial, and the judge had to deal with a situation where it had intruded into the trial process by these other means. The judge gave a direction that the posters and placards misstated the law, but did not labour the point or allow it to assume a disproportionate place in the trial. He did not direct the jury to convict and the right of the jury to defy such a direction did not arise for consideration.

The direction concludes with a paraphrase of section 20C. This creates an offence of engaging in prohibited conduct in the trial period. “Prohibited conduct” means “conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue”. The paraphrase is not precisely accurate, but it conveys the sense of the statutory language. The last sentence of the direction is a statement of the law of secondary liability: encouraging a juror to commit the crime of engaging in prohibited conduct will attract such liability. The judge did not say that returning a verdict of not guilty was prohibited conduct, which would have been a misdirection. He correctly said that the offence was committed where a juror does something which might reasonably give rise to a conclusion that the issue will not be tried on the evidence. It cannot relate to the delivery of the verdict because it must relate to how the juror concerned “intends to try the issue”. We do not consider, therefore, that the judge’s direction about the effect of section 20C of the 1974 Act was wrong in law. His directions that the posters and placards “misstated the law” and involved the commission of a criminal offence are more questionable, but were designed to focus the jury’s attention on what they head heard in court, rather than seen in the street.

No doubt Mr Davey, see [67]-[68] above, would say that his feelings about paedophiles were based on his conscience, but this did not prevent Parliament from criminalising his conduct in expressing those convictions when serving as a juror in a case to which they were relevant. It had not prevented the Divisional Court from finding that his conduct amounted to contempt of court either, and, in our judgment, Mr Davey's conduct would now constitute an offence under section 20C of the Juries Act 1974. The court emphasised in the passage quoted above the directions given to jurors and the obligation of jurors to follow those directions.

In the present case, the judge was dealing with a difficult and dynamic situation in which jurors were required to enter and leave Inner London Crown Court through or past groups of people who were protesting against the prosecution of these appellants. The placards and posters which had inspired this specific direction were obviously designed to persuade the jurors to return a verdict according to their conscience and the judge decided to give a direction to the jury which was no doubt designed to stop them being drawn into any conversation during which they might be tempted to engage in prohibited conduct.

We do not accept that this warning resulted in the jury believing that they might be sent to prison if they acquitted the appellants. That is not what the judge said. Warning jurors of the criminal offences they might commit under the 1974 Act by researching the case or disclosing jury deliberations is now standard practice, as shown by the Jury Notice set out above. They are routinely warned that jurors have been sent to prison for such offences in the past. The situation we have just described did create a risk that conversations might take place in which a juror might express agreement with protestors, even if only to get rid of them, and might do so in terms which amounted to prohibited conduct. We take the view that it was a reasonable step for the judge to address that risk in the way that he did.

We do not accept that the directions given on the following Friday created any such risk either. The judge said that he thought that the people who were trying to influence jurors were committing a criminal offence. The qualifying expression the judge used, “to me, at least”, implies that other views may reasonably be held. This was a reference to the secondary liability we have just identified, to which he had referred in his earlier direction. We have dealt with its legal accuracy above. He then said that the protestors were peaceful and that he did not expect that any of them would approach a juror and speak to them, and that, if they did, they would “likely go to prison”. At this point, he was trying to reassure the jury in the context of a note from one juror who was expressing anxiety because of this behaviour. Whether it was necessary or helpful to indicate that anyone who approached and spoke to a juror would likely go to prison may be a matter on which different judges would take different views. It may have elevated the tension in court rather than dissipated it. That, however, was very much a matter for the trial judge in that court at that time to judge. It certainly did not amount to any sort of threat to any juror.

The same analysis applies to the second occasion on that Friday when Judge Reid told the jury about his powers to commit for contempt. This was a reference to what might happen to any of their employers who tried to cause trouble for a juror at work because of their jury service. This also might provoke different views about whether it was a helpful way of expressing the point, but it was quite clear here that there was no threat of any adverse consequences for any juror. The judge was, again, seeking to reassure them that they could continue their jury service, if required, without being at risk of any sanction for their employers because he would use his powers to protect them if necessary. That was an appropriate thing for him to do, and not one which created any risk of unfairness to any appellant.

Even if we had taken a different view of the accuracy of these directions, we would still not have held that they rendered these convictions unsafe. This is because they have to be seen in context. That context includes a summing up by the judge which left the verdict for the jury to decide and contained no hint of any threat in the event of acquittal. As we have implied above, the judge’s comments on the merits of the defence being advanced were quite restrained and certainly did not come close to the kind of comments which Lord Devlin and Lord Bingham would allow, see [58] above. We have analysed that defence above and observe that it was wholly implausible that all these appellants could genuinely and entirely independently of each other come to a belief that those entitled to consent to their building being damaged would do so at the time when the damage was caused. They were all actually saying that they hoped that the damage would induce a state of mind where such consent would be forthcoming because it would convert the building owners to the climate change cause. That is not the same as saying that they believed that they would consent to the damage at the time it was done. Even if they were saying that, the idea that any one of them might hold this unlikely belief strains credulity. That all of them should have done so without any discussion having taken place is extremely unlikely. The jury was sure that this was not the case and it is very hard to see how they could have reached any other conclusion on the facts. The appellants did not pick on their targets because they were likely converts to their cause, but because (in their view) their conduct showed them to be implacably opposed to it.

The judge in summing up repeatedly told the jury that the verdicts were theirs to decide and that they should do so on the evidence. If anyone had been afraid of punishment if they acquitted the appellants, as a result of what was said on the first day or the trial or on the first Friday of the trial, the effect of the summing up was to make the position quite clear. It is to explain why this is so that we have described the summing up in detail above.

For these reasons, we are entirely satisfied that these convictions, based on overwhelming evidence and following a fair trial, were safe.

For these reasons, these appeals are dismissed.