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Making political statements in court

In court, there is often an opportunity for individuals to make their own statements about why the chose to be arrested.

The conventional legal wisdom is that the court hears only one limited matter - the charge before it - and does not enter into social or political debate, but carefully constructed defences can often be heard even if they have limited chance of success.

Though the court purports to be neutral, judges and magistrates may conduct proceedings and apply the law in slightly different ways. There are no guaranteed outcomes and often, depending on the magistrate, results will be very different. Someone charged with the same offence as you may get a very different outcome.

Some judges and magistrates are more likely to be sympathetic to your cause and hear your argument than others. The court can be a forum for airing your political opposition, but it can also silence your motivations. It’s important not to put too much expectation on the outcome of a court case and to ensure it is not the only strategy you are putting energy into as a campaign.

Alternatively, you may have decided that the court case has wider implications, and you want to use it as another platform for your activism. In some situations this will be successful, in others it will backfire and you will receive a heavier penalty.

Lawyers, focusing on what they believe will influence the magistrate or judge the most, generally minimise what they see as political content. Make sure you have a clear understanding with your lawyer about what is important to you during the court process.

Statements in mitigation

Many activists do this by pleading guilty and making a speech when asked for comment in mitigation before sentence is passed. In this case the choice to plead guilty is tactical rather than philosophical. Arrestees may take the same approach but plead not guilty and make their statements from the witness stand.

Pleading guilty explicitly recognises that a crime has been committed according to the law.

By pleading not guilty activists stress that they believe they have committed no moral wrong.

Political messages as evidence

You may be able to give direct evidence relating to the charge against you whilst incorporating your own political statements in a form that makes them relevant to the issues of your defence. You can ask your lawyer about arguments that may allow you to use international law as a moral defence, call other activists or even scientists and others as ‘expert witnesses’, or use information about your protest as evidence.

Melbourne lawyer Len Linden argued before the Court of Appeal of the Northern Territory an appeal which arose out of an alleged trespass at the Joint Defence Space Research Facility near Alice Springs (commonly known as "Pine Gap"). In defence to the charge, he raised the alleged illegality of nuclear weapons by international law. He suggested that the Facility was tainted with that illegality. The defence, however, was rejected.

The Nuremberg defence

In the Nuremberg trials the Nazi leaders defended their actions on the grounds that they were following orders. This defence was rejected by the tribunal. It was found that men and women, whether military or civilian, have a duty to resist orders from above if those orders require them to commit crimes against humanity.

Another activist defence case involved the use of literature on the Nuremberg trials, which states that any person who,

"with actual knowledge that a crime against humanity (or war crime or crime against peace) is being committed, and having such knowledge, was in a position to 'shape or influence' the policy that brings about initiation or 'continuation' of the crime to the extent of his ability . . . will be responsible if he could have influenced such policy and failed to do so".

Martin J., Limbo v. Little 65 NTR 19 at 45, quoting from Frank Lawrence, "The Nuremberg Defence", 40 Hastings L. J. (1989).

From this "Nuremberg defence", Len Linden claimed that international law places a personal responsibility upon him as an individual, to do everything possible to prevent such crime not only if he knows that such a crime is being committed or planned, but also if he suspects that such circumstances exist.

Necessity or lawful excuse defence

The common law recongises the defence of ‘necessity’ in criminal matters. The essence of the defence is that there was a threat or ‘sudden emergency’ which compels the person to commit a criminal offence. That is, the defence involves situations where a defendant is presented with a choice of harms – having to choose between committing a criminal offence which will avoid the peril or of allowing the peril to occur.

As such, this defence can be invoked either pragmatically or more strategically by activists. In some cases activists may seek to present evidence of the ‘greater harm’ (ie. nuclear disaster, climate change, war) they were trying to avoid by their actions to actually seek to have the charges against them dismisses. In other cases activists may seek to make this defence publically in court in order to use the court room as an additional platform to talk about (and received media coverage for) the issues they are campaigning around.

Case study: Kingsnorth Six

In 2008 6 Greenpeace activists were cleared of causing criminal damage at a coal-fired power station. The activists relied on a ‘necessity’ defence before the jury. They argued that they were legally justified in shutting down the coal-fired power station and writing the word ‘Gordon’ on the chimney, because their actions were trying to prevent climate change causing greater damage to property around the world. As part of the “Kingnorth 6” defence case prominent witnesses gave evidence about the threat climate change posed includingProf James Hansen, one of the world's leading climate scientists, David Cameron's environment adviser, millionaire environmentalist Zac Goldsmith, and an Inuit leader from Greenland. Not only this ‘necessity’ or ‘lawful excuse’ defence allow the activists to be acquitted to the charges they faced, it also allowed them to turn the court room into a further media platform to put forward their message.

See article - John Vital ‘Kingsnorth Trial: Coal Protesters Cleared of Criminal Damage to Chimney,’The Guardian, 10 September 2008

Case study: Pine Gap Four

In 2005 4 Christian anti-war activists entered Pine Gap’s ‘Prohibited Area’ to conduct a Citizens’ Inspection, disrupt the machinery of war and to draw Australia’s attention to the missile guidance system. They were charged with trespass offences under the Defence (Special Undertakings) Act. During their 11 day jury trial presented evidence Pine Gap’s role in the war in Iraq which resulted in civilian deaths and suffering. Although the defence was not successful and they were found guilty, all the activists received light sentences. Additionally, raising this defence allowed them to present moral and political arguments to the court. As one of the activists, Ms Mulhearn said:

‘What’s moral is not always legal, and what is immoral is not always illegal. If there is a minor law that has to be broken in the pursuit of moral faith then I will break it. I thought it was the least I could do given the magnitude of the crime I was trying to prevent. I was trying to fulfil the promise I had made to the people of Iraq to do something to stop the war.’

See Media release - ‘No Jail for Pine Gap Four’ Pace e Bene, 20 June 2007