Court cases must uphold integrity

Protestors charged with non-violent offences should be able to explain their motives in court as part of their legal defence, new research says. A new study from the University of Birmingham, Aston University and Keele University has argued that trials should respect the integrity of publicly accountable defendants, who should not be expected to disavow their motives where they act in the public interest, even in cases where the courts decide that their actions are not justified. In such cases, their integrity should be a mitigating factor, and they should not be expected to express remorse.

The research challenges the current legal approach to protest trials and calls for a fundamental change in how activist cases are managed. The paper has been published in the Oxford Journal of Legal Studies.

Dr Steven Cammiss, Associate Professor of Law at the University of Birmingham and first author on the paper, said the way trials concerning non-violent activists are dealt with is fundamentally flawed. People who are arrested for civil disobedience or other nonviolent actions taken during a protest are motivated by moral values, a desire to protect fundamental rights, or to do good for a community. Currently, defendants are asked to show remorse for the actions they have taken during a protest, but we argue that this is not appropriate and should not be expected from defendants. A trial is a dialogue between the community and the defendant and should be a space for holding the defendant to account. But, asking them to disavow their moral or political motives for a more lenient sentence does not achieve this. Instead, the integrity principle should be applied in these cases.

The Integrity Principle put forward by the authors argues that:

• Remorse is not appropriate as protest defendants do not usually dispute the facts of their action/offence but, where able, argue their actions were justified as ‘a matter of self-respect and moral consistency.’
• Protest defendants may be expected to deny that they have betrayed the community but, rather, argue that they have acted in the community’s collective name for its moral benefit.
• UK courts should respond in a manner that respects protest defendants’ philosophical beliefs.

The researchers apply this to three real-life cases, the Stansted 15, the Frack Free Three and the Colston Four.

Dr Graeme Hayes, Reader in Sociology at Aston University, said the way courts currently handle protest trials forces activists into an impossible position—either abandon their political stance or face harsher punishment. This approach not only distorts the legal process but also undermines the fundamental democratic rights that protests seek to defend. Protesters acting in defence of their communities should be able to fully account for their actions in court, with juries - not judges - deciding whether their actions were justified and proportionate.

The researchers conclude that activists or protestors who act to defend their communities, in a way that is deliberately publicly accountable, should be able to present a defence in law that enables them to properly account for their actions. They also argue that the jury is the proper body to decide on whether their action is justified and proportionate; and if the jury decides to convict after hearing this defence, then the integrity of the defendants should remain a mitigating factor at sentencing.

Dr Cammiss added integrity acting as a mitigating factor in sentencing was the general rule until 2019, but now the courts consider it an aggravating factor. Activists are citizens exercising and upholding fundamental rights and should have their justification recognised in court, and the ability to use it as a defence.

Dr Hayes concluded to uphold justice, legal policymakers must introduce clear justificatory defences, end the expectation of remorse as a sentencing factor, and restore the jury’s role in adjudicating the legitimacy of protest actions.