In a recent case at the Court of Appeal, political activists belonging to the Just Stop Oil campaign lost their last line of legal defence. In March 2024, the Court ruled that the defendants’ ‘political or philosophical beliefs’ were too remote to count as a ‘lawful excuse’ for damaging property. Whereas many activists had previously succeeded in pleading not guilty under this defence (using section 5(2)(a) of the Criminal Damage Act 1971), the Court has now handed down its judgement that the ‘reasoning or wider motivations of the defendant’ do not count towards the ‘circumstance’ of the act.

While this hit ecological activists most directly, it is of equal relevance to those on trial for opposing genocide with Palestine Action. The decision effectively insists that even when activists succeed in disrupting order at arms factories building the weapons used to ‘raze Gaza to ruins’, this ‘context’ — the entire reason for the action — may now be considered legally irrelevant, as if these actions are being committed randomly, for unknown motivations, by individuals of no collective affiliation. Those on the receiving end of Israeli bombs are now an extraneous detail in the trials of those who want to avert catastrophe.

This latest appeal is the third such case in as many years that has successfully stripped political activists of their right to legitimate legal defence. Since June 2020’s toppling of the Colston statue and the subsequent acquittal of the Colston Four, we have seen the government use the much-politicised role of the Attorney General to abuse what they perceive as the ‘fluidity’ of our legal system. Suella Braverman — and her successor, Victoria Prentis — have expediently excised all remaining strategies that activists have previously relied on in court.

It is worth providing an overview of how we have arrived at this point: it begins with the fact that the jets and drones heard overhead right now in Gaza are manufactured in this country. The activists that have blockaded or sabotaged components of this military-industrial complex will face criminal damage charges, often as much as hundreds of thousands of pounds. When the defendant is accused of causing a ‘significant amount’ (over £5000) of damage, the case is heard in Crown Court. Perhaps surprisingly, this has often been to the benefit of the activists on trial, as cases heard in Crown Court, unlike those in lesser courts, are decided by a jury of their peers.

This represents a fundamental problem for a Tory government that is deeply out-of-sync with most of its population when it comes to the major issues of our time; despite attempts to isolate those associated with Palestine Action as extremists, most people support a ban on arms sales to Israel. In spite of the frustrated efforts of those with a vested interest in catastrophe, juries have repeatedly returned ‘not-guilty’ verdicts to those who have acted out of concern for humanity’s collective future. These tactical setbacks for the government have forced a different strategy to be deployed; to silence those placed on trial by systematically removing defences available to them through the Court of Appeal.

This current wave of legal repression can trace its origins to Braverman’s time as Attorney General. Aggrieved by the acquittal of the Colston Four and the surrounding wave of civil disobedience in the summer of 2020, Braverman’s response was to attack the legal defence that activists rely on by removing the rights to protest under the European Convention of Human Rights (removing the ‘Zeigler’ defence in cases where ‘significant’ damage has taken place), and further repealed the defence of necessity (including prevention of a greater crime) from all future protest cases.

These overtly political decisions are especially concerning given that the threshold for ‘significant’ damage has not been adjusted with inflation since 1972, with damage estimates often being ludicrously inflated by those prosecuting the case – with actions involving nothing more than water-soluble paint routinely ending up in some of Britain’s highest courts.

This latest appeal of the ‘consent’ defence removes the last lifeline activists had to plead ‘not guilty’ in politically motivated criminal damage cases. Now, if the case goes to Crown Court, the defendants will have no lawyer available to them, no legal defence, and often no opportunity to meaningfully explain themselves.

This state-sanctioned political silencing was typified last year when Insulate Britain activists were forbidden from mentioning climate change, fuel poverty or the civil rights movements during their legal defence. When activist David Nixon broke this order by attempting to explain why he blocked the M25, he was sentenced to eight weeks’ imprisonment for contempt of court.

While calls to ‘defund the police’ popularised at the same time as Colston’s toppling have fallen on deaf ears on either side of the Atlantic, this repression of direct action activists is taking place within the sinister post-austerity context of ‘active trial management’ and a severely defunded criminal justice system – with one of the main consequences of this underfunding meaning that judges now wish to expedite political cases and save court time by significantly limiting the rights of those on trial to defend themselves.

What we are witnessing is a sinister confluence of the material effects of an underfunded public sector with the repressive ideological intentions of right-wing forces in the British state. As the system continues its terminal decline, we will doubtless see more of these morbid conveniences in years to come.

For those of us in this country – like myself – who are on trial for our protest, we mustn’t diminish the anguish and anxiety such a corrupted system can bring about. But at this time, we can do worse than recall the words of Rachel Corrie, an American activist who was crushed to death protesting the destruction of Palestinian homes in Rafah in March 2003: ‘I Just want to write to my Mom and tell her that I’m witnessing this chronic, insidious genocide and I’m really scared, and questioning my fundamental belief in the goodness of human nature. This has to stop. I think it is a good idea for us all to drop everything and devote our lives to making this stop.’

Those who see the wisdom in Rachel Corrie’s words must not cower because the law does not change in our favour – it has never been on our side.  We must continue to apply pressure on this war machine in whatever way we can, and organise with the hope of ending the violence of an apartheid state. It will take all of us shoving from all sides to bring it down.