Amy: Direct action is not a new idea. We've talked in previous episodes in this season about how it was used by the suffragettes, by various civil rights movements. And it's not new to climate or other environmental issues either. Probably the best known organization when it comes to these sorts of tactics in the environmental space is Greenpeace.

From blocking whaling boats to locking onto offshore platforms, Greenpeace activists have been putting their bodies in the way of environmental harms for decades.

Greenpeace archival: There's swimmers in the water and also climbers hanging off the side of the ship. And we're here to stop coal being delivered to King's North Power Station.

Amy: This is from a short video that was made documenting an action in the UK in 2008. Six activists tried to block a ship from delivering coal to the King's North power station.

They were also trying to block a new coal fired power plant from being built there. After several hours, the protesters were arrested.

Greenpeace archival: Six Greenpeace activists are on trial in front of a jury at Maidstone Crown Court for causing 30, 000 worth of damage to the King's North Power Station. There was a very real danger, according to our lawyers, that we would go to jail.

Amy: Amy: This is from a short video that was made documenting an action in the UK in 2008. But when they got their day in court, the activists made a novel argument.

Greenpeace archival: They argued their actions were justified because they were trying to highlight the dangers of climate change. There was a lawful excuse that the harm we caused by the damage of painting It was insignificant compared with the emissions from Kings North for that one day alone.

And the moments when the jury became most engaged was when the witnesses, the defendants or the scientific witnesses were talking about the effects of climate change on our kids and on our grandchildren. And suddenly I think it put our actions into a different context and made them look Quite frankly, proportionate and reasonable.

Amy: And it worked. It was the first time that what's called a climate necessity defense, had worked. And it sparked lots of similar defenses all over the world

Greenpeace archival: This verdict, we think, marks a tipping point for the climate change movement. When 12 normal people say that it is legitimate for a direct action group to shut down a coal fired power station because of the harm that it does to the planet, then one has to ask where exactly that leaves government energy policy.

Amy: then, just about a decade later, the UK government passed new laws that not only restricted what protesters could do, but also how protesters were allowed to defend themselves in court. Some judges don't apply the new laws so strictly, but others have held people in contempt for just trying to explain themselves.

In some courtrooms, the climate necessity defense has been effectively outlawed. How did that happen? And how did it happen so quickly? That's our story today. After the break, reporter Isabella Kaminsky joins us from the UK with a story about the backlash against climate protest and how an obscure law from the 1600s might be activists best hope.

She also wrote a piece for our website on this topic. You can find that at Drilled. media. I'm Amy Westervelt, and this is Drilled, the real free speech threat.

Greenpeace archival: [ad break]

Isabella: my name is Isabella Kaminski, and I'm a freelance journalist based in the UK who specializes in environment and climate change.

Amy: So, Isabella, from your reporting and also just from kind of watching things unfold from afar, it seems to me like there's been a pretty significant shift in the UK government's approach to protest in a fairly short amount of time, but I'm curious if that jives with what you found as well.

Isabella: Yeah. So I think it's worth going back to 2008 when energy firm E.On was trying to build the UK's first new coal fired power station in 20 years.

And it wanted to do that at Kings North in the south of England because there was already an old power station there. And that became the local focal point for climate activists at the time. And so one day that year, six Greenpeace activists climbed up one of the station's smokestacks, these, these 200 meter high chimneys, and tried to shut it down by occupying it and painting on it.

So they were arrested and they had to go to court where they made this really novel argument that they had a lawful excuse for what they'd done because the damage caused would protect other people's property from the effects of climate change. And the jury acquitted them. That at the time made the, the New York Times list of top influential ideas for the year.

, it helped the government firm up its climate commitments. Later that same year, the UK passed into law the Climate Change Act. You know, you can't necessarily make a direct link, but everything's helped shift the conversation. E. ON then also abandoned the plan to build more coal. King's North was actually demolished, and the UK now generates only a tiny proportion of its electricity from coal.

But a decade later, government action on climate change was stalling, and activists started talking to each other more and looking really intensively at how they could harness this idea of nonviolent direct action to change the conversation. And out of that, Extinction Rebellion was born.

Gail Bradbrook: I'm Dr. Gail Bradbrook. I'm the, one of the co founders of Extinction Rebellion.

Amy: Before co founding Extinction Rebellion in  2018, Bradbrook had spent several years getting involved in various environmental and social justice fights. Isabella visited her at her home in Stroud, a small town in the picturesque Cotswolds Hills in southern England in the fall of 2023 to get more of her story.

Gail Bradbrook: I was part of the animal rights group at university. I sort of got involved in green politics as well, but I have to admit, you know, my dad's a coal miner, I was from a working class background, sort of bounced off the middle class vibe without realising that's what was going off for me.

No disrespect to the people

Amy: Eventually, Bradbrook got her PhD in molecular biology. She says she found it difficult to be a working class woman in science and ultimately made her way back to social justice work, mostly working with NGOs.

Gail Bradbrook: And I suppose it was really helpful in that it helped me to learn about strategy and partnerships and fundraising and a whole plethora of like, you know, program delivery type stuff. And at the same time, it makes it quite clear that, you know, NGOs are generally part of the problem rather than part of the solution.

And then I did something called Street School Economics, there's a video, still a rat kicking round of that. I was trying to teach people economics on the streets, because I think we're all kept ignorant about economics.

Amy: And yes, we did find that video. Here's a little bit from it. This is from 2013, and Bradbrook is standing in front of a bunch of handmade signs. One of them reads, Remember the golden rule. Those with the gold make the rules.

Gail Bradbrook: So I feel really honoured to share this evening with you. Um, my concern is economic literacy. What do we know and understand about economics? And so tonight I want to do two things really, to talk about economics, and for me that's about showing the connection between different issues. There may be things that you already know about, like debt or inequality or, you know, peak oil or whatever, but how do these things link up?

That's the thing that I felt confused about and wanted some clarity around, so I wanted to share where I've got to on that. And then the second thing is to talk about talking about economics. So, you know, I really believe we can't leave economics to economists,

Amy: At this point in time, Bradbrook was working with the tax justice movement and participating in mass actions around wealth inequality, mostly tax strikes. And then she had an experience. It put her on the path to connecting with Roger Hallam, an organic farmer whose land had been destroyed by extreme weather.

Hallam was studying for a PhD at King's College London, researching social change and the history of social movements. Their meeting has sort of become the stuff of legends in climate spaces.

Gail Bradbrook: You probably know this sort of slightly weird story of going off and praying with a psychedelic, that did happen, it was all very profound, um, wasn't the first time I worked with those medicines, but there was a depth there, and the prayers were answered, I met Roger Hallam, he was doing similar and different research, it was complimentary, and we had this big meeting, and then we started gathering energy around, you know, the social change movement, which originally was called Compassionate Revolution, re branded Rising Up, and then XR was a campaign of that,

Isabella: So, is it fair to say that that was about something broader than climate?

Gail Bradbrook: Oh, definitely. I can send you the Rising Up original plan.

Isabella: Yeah, so, I mean, I remember reading about it, but since when, when did climate become the sort of the focus then? Well Or has it never been entirely?

Gail Bradbrook: No, because to me it's just, it's It's all part of something. It's a, it's a, it's a, you know, a, a, a symptom. of a wider malaise. It's, it's not the thing and that is such a problem in climate activism because obviously people come in and want to solve climate change and you can't solve climate change because that's not the problem actually it's a symptom.

Amy: Bradbrook and Hallam didn't just relate to each other. They were also very compelling for a lot of young activists who were fed up with the stalled progress on climate in the UK. And initially, they had some really big wins. Here's Isabella again

Isabella: So it had a huge positive impact. In about sort of less than a year after the activists started having these conversations, they managed to succeed in getting thousands of people onto the streets of London in this really, really unprecedented display of climate solidarity. You know, some people were arrested, but the actions also changed the public and political mood around climate change.

You know, polls show that concern grew. Parliament later declared climate emergency. And the UK set its first net zero target, and that was all in the 12 months after Extinction Rebellion launched. And it also sparked further protests around the world as well, under the banner of Extinction Rebellion and through other climate activist groups.

Amy: Bradbrook said she thought that super successful first year was because Extinction Rebellion's approach was so different. Not in terms of using direct action per se, but something a little more ephemeral.

Gail Bradbrook: What I believe created the success in 2019, and it was limited, but we did smash through climate denial. Um, there was a spirit that was created. It's of the right hemisphere that, that's the playful side of humanity. That's the side of humanity, that's visionary and collaborative and together and believes in itself.

Isabella: But at the same time it sparked this backlash. So the same year that the government set that net zero target, a group called Policy Exchange put out a report, and they called it Extremism Rebellion. And that report warned that Extinction Rebellion was a major threat, and said the government had to do something to crack down on this type of protest.

Amy: If you've been listening to this series all along, that name, Policy Exchange, might sound familiar. We've mentioned this organization before because it's an Atlas Network member think tank. Here is Richard Walton, a former senior policy fellow at Policy Exchange and the lead author of the report that Isabella just mentioned, talking on a podcast shortly after the release of the report.

You'll hear the host first and then Walton.

Nick (podcast): Now, while I may support many of their motives, I, I can't support the way they act, but they're not really the Mafia, are they? They can't be called an organized crime gang. Good morning. Good morning, Nick. Um, well, I mean, there's certainly, the behavior that we've seen is, is rather typical, um, but

Richard Walton: they are certainly engaged in organized criminality on a large scale, and their sort of tactics are, is one of civil resistance, a civil resistance model that is based on, on illegal action.

Um, so, um, I think what we saw over the weekend, um, with the blockading of, um, the various, uh, news print outlets was, Um, was, was a form of anarchism, effectively, it was, um, you know, rather typical, um, this is a group that, you know, rejects democracy and the liberal free market economy and explicitly seeks to overturn both,

Amy: This is something we’ve talked about this season, too, the framing of climate activists and particularly those engaging in direct action as being scary anarchists. That’s certainly something the Atlas network think tanks in particular have been pushing. Did, did you see the UK media kind of amplifying this message as well, or, or any politicians kind of picking up that framing and running with it?

Isabella: Yeah, definitely. They started to, certainly certain sections of the media started to repeat the kind of language that was being used and the framing of these groups as, as a threat, rather than trying to draw attention to a serious issue. And then it wasn't too much longer before the UK. began actually putting some of this stuff into legislation.

So in 2022, 2023, the UK parliament passed two really significant pieces of, of law, which gave law enforcement agencies much greater powers to stop protest tactics that were considered to be disruptive.

Certain aspects of those laws, whilst they were being developed in Parliament, which were struck down, the government later sort of pushed through through secondary regulation, to try and bypass the parliamentary process. So, these pieces of law have really made it harder for people to protest and given enforcement authorities and given the police much greater power to stop it before it happens and while people are protesting. We also know that in the summer of, 2023 at a policy exchange garden party, Prime Minister Rishi Sunak thanked the organisation for its help with, with these legislative changes.

Amy: I love that it was at a garden party. That makes it so much, I don't know, makes it land so much more. So you wrote in your story also about not only how these laws have led to more arrests, but how they've impacted activist court proceedings, which I think is really, really interesting.

Can I just have you kind of walk us through what you found out on that front?

Isabella: Yeah, sure. So I've been speaking to, to a lot of activists who have been arrested and have been through the, the court system. And the really key thing is here that activists, when they get to court, whatever the crime they're accused of is, they want to be able to explain their motivations for why they did what they did.

And for some, that's about getting the issue on the record for talking about climate change, for example. For others, it's about trying to persuade the jury that what they did was proportionate and that they shouldn't be convicted. But judges have discretion in how they run particular trials in their courts.

And that's led to this really wide variety of different outcomes for protesters. So in some courts, activists have been given pretty free reign to explain their motivations for what they did. In some, they've been allowed to use particular legal defences, so for example, necessity. That's saying that, that's saying that what they did was necessary to avoid a greater harm to the planet.

But in others, they've been really strictly barred from even mentioning climate change at all. So, I've heard activists describe this as a justice lottery. With some people being convicted and going to prison and others found not guilty and allowed to go home. But at the same time, juries vary quite a lot.

In many cases, they've been acquitting activists for a whole range of events, whether or not they've managed to explain their motivations. So the result is that not all judges or politicians are very happy with that situation. And so there's been this growing tension about how to deal with climate protesters in a proportionate way.

And meanwhile, climate protesters are quite frustrated that they're being handled so differently in different parts of the country and in different courts, even in, within the same city.

Amy: Is there anyone kind of working on Just specifically that issue, the inconsistency of things being applied. I mean, that could go well or poorly for activists.

I would guess that, you know, if someone's like,, the judges should all be implementing this to the letter of the law or we should come up with something that's more unifying. I don't know. It strikes me as like the classic thing that Court cases exist to do, right, is figure out this kind of inconsistency

Isabella: there are people and I know people who are tracking with spreadsheets, you know, what's happening to different people in different courts. And so some of them have figures for about half of protesters, for example, being acquitted compared to the other half found guilty by juries. You're right though, that absolutely could backfire because you could end up in a situation where the courts actually look and say, we want to apply the strictest sentences to everybody rather than the most lenient.

so There's, there's two things going on here. it's protesters feeling that the sentences being handed down to them are too strong because in some cases, the jail sentence that they've been handed down have been significantly bigger than they have been in previous protest trials.

That's something actually the UN is looking at because there is concern about how the courts have applied this. But in other cases they're talking about the inconsistency. So there's the tougher sentences on one hand and on the others, the lack of a kind of clear guidelines for how to treat these cases.

I think some of these cases are going to the Court of Appeal. So there might be higher courts deciding how it can be applied to the lower ones. But so far, there isn't any, any guidance on that.

Graeme Hayes: we don't know, um, exactly what discussions have been had, exactly what pressures have been placed, but we can see that change in charging decisions.

Isabella: Dr. Graeme Hayes is a researcher in social movements at Aston University

Graeme Hayes:, as soon as those changes happen, the, uh, ability to defend yourself in court is much lesser and the penalties are much greater.

Amy: Hayes and his colleague, Dr. Stephen Kamis, who's an associate law professor at the University of Birmingham, have been tracking what's happening in the courts ever since the UK passed its new protest laws. In 2019, Dr. Gail Bradbrook, the Extinction Rebellion co founder that you heard from earlier in this episode, was arrested for breaking a window in a government building during a protest.

She just went to trial in 2023, and the judge in her trial refused to let her explain why she was protesting in the first place. The judge repeatedly warned her to stop speaking when she disobeyed that order, and told the jury to disregard what she was saying.

Isabella: so in that context, thinking about Gail Bradbrook's trial and the judge's warning that if she continued to overstep the bounds that he'd set, that he could move to a judge only trial. I mean, am I right that that provision was designed to address jury intimidation sort of in the context of serious organized crime?

Is that why that was developed in the first place?

Stephen Kamis: Yeah, it was 2003 Criminal Justice Act, exactly, and it was highly contentious at the time

Amy: And another thing that, that came up in your piece that was new to me as a, a non UK listener was this idea of jury nullification. And I, I think it, it's interesting sort of the role that this concept is playing in, in these cases and especially around the, the court proceedings. Can I have you kind of define that for, for folks who are, are tuning in from outside the UK?

Isabella: Sure, this is a really fascinating idea. So, it refers to this, this key legal idea, which actually dates back. About 500 years. And in 1670, jurors in a particular case were ordered by a judge to find two Quakers guilty of illegal preaching. So, the jury, led by a man called, um, Edward Bushell, refused, and they were jailed and fined until a court eventually cleared them.

That case has now become the sort of celebrated, uh, principle of religious and political freedom, and the resulting principle is known as jury nullification. The idea is that juries can clear people based on their consciences. And in fact, in the Old Bailey, which is the central criminal court of England and Wales in London, it's actually engraved onto a marble plaque there.

That's how important this idea is. But in response to what's been happening in some of the cases against climate protesters in court, a 68 year old woman stood outside one of the courts and she'd written this principle of jury nullification onto a cardboard sign. So she wrote, jurors, you have an absolute right to acquit a defendant according to your conscience.

the judge in that case where he was taking a trial of some climate protesters was not happy. He felt that the lady, Trudy Warner, was trying to interfere with the jury and he referred her for contempt of court. Essentially that she was trying to sway the jury into making a particular kind of decision.

So when Trudy next went back to court, he ordered her to be arrested and she was later charged with contempt of court. Trudy's arrest then sparked lots of other people to do similar things. So they've started standing outside court with very similar signs, reminding juries that they have a right to acquit.

There's been a sort of series of escalating protests, um, from a handful of people to over 200 and at the latest count in December. More than 500 people stood outside around 50 courts in the UK holding up very similar signs reminding juries of this key legal principle. Um, a couple of people have also been charged, but most of those protesters have not had any kind of, um, haven't had their details taken and haven't had any kind of legal consequences for doing that.

But it's led to this, this growing row about what is proportionate.

Graeme Hayes: I think until we get a ruling in the Trudy Warner case, we won't exactly know how this will be dealt with from, from, from there onwards. I just think we have probably have to wait and see I think what I would say is that judges have different personalities and they use contempt or the threat of contempt or the threat of imprisonment, in order to demonstrate their authority in the courtroom, and you regularly see some judges threaten prison to defendants to keep them in line.

Isabella: , so the people who have had legal repercussions are Trudy Warner and two young women, so all of them are being are being charged with contempt. I haven't, well, I haven't spoken to them directly on the record because they're going through this legal process. I have spoken to three generations of one family who were some of the protesters outside one of the courts.

They were very passionate about why they were doing this. For them, it was about much more than climate change, although that was super important. This was about a really important fundamental principle of, of essentially freedom speech.

Renee, Sara and Vivi: I'm Renee Slater. I'm Sarah Macdonald. I'm Vivi Macdonald. And you're three generations of the same family, right? And so, why have you come to Bristol Crown Court today? Really to stand up for the rights of life, actually. That's, that's for me, to stand up for life. I've done a lot of climate activism, and I've taken part in the, um, actions against the repressive police and crime sentencing bill. What concerns you about those bills? I think a lot of things concern me about those bills. I think the, the clampdown on protest really reflects how the government is trying to, and what direction our country is being taken in, in a way to repress people expressing their opinions, and to repress assembly, which is been throughout history a way to cultivate change and I think clamping down on that really reflects their opinions on not just the climate protest, but like historical protests as well and how those have manifested and been brought forwards in the tradition of cultivating change. it's more important than ever to continue protesting and to continue fighting for change in light of how the government is trying to

Amy: that's the thing that strikes me the most about the, the court proceeding stuff is just how, you know, whether climate is an issue that, you care about or not, or whether you think these protesters are justified or not is sort of beside the point. Anytime you're curtailing people's ability To defend themselves or, curtailing what they're allowed to say in their defense.

It seems like potentially something that folks might be concerned about.

Isabella: Absolutely, and that's one of the points the protesters are making. Although obviously they want to draw attention to climate change and for people who've been involved in various kinds of activism to not go to prison and to be found not guilty. This is a really fundamental point about allowing people to express their motivations and giving juries as a kind of representative a sample of the public, the ability to make informed decisions about people's actions and about essentially what is right and wrong.

Otherwise you're giving all that power to a judge and to the judiciary rather than the people themselves.

Amy: So all of this stuff that, that you've been talking about kind of played into Bradbrook's case as well.

Isabella: Yeah, so Gail had two trials and the first trial, which was earlier in 2023, had to be aborted because she kept talking about her motivations for, for her actions. And the judge was really unhappy about that. He, he basically refused to let her do so, accused her of tampering with the jury and said that the trial would come to an end and would start again later.

In between her two trials, there were various hearings where she was trying to negotiate what she was allowed to say, the extent with which she was allowed to describe her motivations and talk about climate change, and the judge was really pushing back on that. He was incredibly limited in how he allowed her to frame her defense and was basically striking down any kind of legal defense that she had to, to make.

Isabella: So. By the time of the second trial, where there was a fresh jury, she, she was very technically restricted. She was defending herself as well. During the actual case though, she managed to sort of push back on quite a bit of it, and the judge was repeatedly stopping her from talking and reminding her of his previous rulings.

But she did manage to, in various ways, get across most of what she wanted to the jury. The result was not really what she wanted because she was found guilty. She told me that she was happy because she had managed to at least explain herself, which, which the judge hadn't really wanted her to do. In that case as well, coming into the court in the morning, there were many people sitting outside with the, the jury nullification slogans on their placards, which the judge told the jury that they should sort of, you know, take with a bit of pinch of salt.

So that all these factors were coming together in this trial of an Extinction Rebellion founder.

Amy: Bradbrook was sentenced to 15 months in jail, but the judge immediately suspended that sentence. She was also given a 12 month supervision order, and 150 hours of community service. Once the sentencing ended, Bradbrook released her 75 page dossier of evidence, all the stuff the judge had said she couldn't use to defend herself.

And she criticized the judicial system for both its inconsistency and for curtailing people's ability to defend themselves. In a press statement that Extinction Rebellion sent out, Bradbrook said, quote, “Our so called justice system is a lottery for climate defenders and not fit for purpose when it comes to tackling the climate and nature crisis.”

Meanwhile, several other climate activists are either in jail or awaiting trial in the UK.

Isabella: Next year there are going to be quite a few more trials of client protesters, some of them accused of quite significant damage. So it'll be interesting to see how the courts treat them, whether they become even tougher, make it even harder for activists to, to make defenses and whether the sentences are going to be even less lenient.

I understand that some activists are going to be making formal complaints about the UK government, that it's, it's acting disproportionately and possibly violating some international laws about the right to freedom, the right to free speech and the right to protest. So I think that would be a really important thing to look out for.

The UK government is aware of its image on the wider stage. And so that kind of action might help to show it up as being somewhere which likes to present itself as a climate leader and a bastion of free speech, but isn't necessarily living up to that reputation right now..

music up

Amy (2): Drilled is an original Critical Frequency production. This episode was reported by Isabella Kaminsky and written by me, Amy Westervelt. Our senior producer is Martin Zaltz Ostwick, who also sound designed this episode and composed a lot of the music for it. The episode was mixed and mastered by Peter Duff, who also composed some of the music used in this episode.

Our theme song is “Bird In The Hand” by Foreknown.

Our fact checker is Wudan Yan. Our First Amendment attorney is James Wheaton. Matt Fleming designed our artwork. You can find a companion web story to this episode on our website at drilled. media. You can also subscribe to our newsletter there. It comes out once a week and includes a little bit of analysis on what's happening in climate plus a roundup of the top five stories or studies to check out each week.

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