The Volokh Conspiracy

The Volokh Conspiracy

September 13, 2008

UK Court Greenlights Green Vandalism:

By Jonathan Adler

http://v olokh.com/posts/1221341599.shtml

A British jury cleared a half-dozen Greenpeace activists of charges they caused £35,000 of damage to a coal-fired power plant on the grounds that such actions were justified to help prevent the threat posed by climate change. Among those who testified on behalf of the activist was NASA scientist James Hansen. The Independent reports on the verdict:

Jurors accepted defence arguments that the six had a "lawful excuse" to damage property at Kingsnorth power station in Kent to prevent even greater damage caused by climate change. The defence of "lawful excuse" under the Criminal Damage Act 1971 allows damage to be caused to property to prevent even greater damage – such as breaking down the door of a burning house to tackle a fire. . . .

Kingsnorth was the centre for mass protests by climate camp activists last month. Last year, three protesters managed to paint Gordon Brown's name on the plant's chimney. Their handi-work cost £35,000 to remove. . . .

During the eight-day trial, the world's leading climate scientist, Professor James Hansen of Nasa . . . called for an moratorium on all coal-fired power stations, and his hour-long testimony about the gravity of the climate danger, which painted a bleak picture, was listened to intently by the jury of nine women and three men.

Professor Hansen, who first alerted the world to the global warming threat in June 1988 with testimony to a US senate committee in Washington, and who last year said the earth was in "imminent peril" from the warming atmosphere, asserted that emissions of CO2 from Kings-north would damage property through the effects of the climate change they would help to cause. . . .

During the trial the defendants said they had acted lawfully, owing to an honestly held belief that their attempt to stop emissions from Kingsnorth would prevent further damage to properties worldwide caused by global warming. Their aim, they said, was to rein back CO2 emissions and bring urgent pressure to bear on the Government and E.ON to changes policies. They insisted their action had caused the minimum amount of damage necessary to close the plant down and constituted a "proportionate response" to the increasing environmental threat.

This was not the first time a British jury bought a "lawful excuse" defense by Greenpeace activists. In 1999 a jury acquitted activists who sabotaged a field of GM crops.

Hoosier:

Well, good!

And since no automobile is carbon-neutral (yet), I think the next step should be to destroy all sorts of vehicles. Starting with those belonging to certain jurors.
And Greenpeace activists. I'm sure they will loudly praise the commitment to environmentalism that such action evinces.

9.13.2008 5:46pm

Smokey:

What isn't mentioned here is that the head of NASA/GISS, James Hansen, traveled to England at U.S. taxpayer expense to support the vandals.

There's an excellent article about Hansen's active support of eco-vandalism here.

9.13.2008 5:59pm

Jay Myers:

But didn't Hansen make the problem worse through all the carbon emissions of the jet he used to fly there? If he truly believes that we are in "imminent peril" due to carbon dioxide then should Hansen be calling for a moratorium on intercontinental travel by data-jiggering fanatics such as himself?

9.13.2008 6:08pm

Soronel Haetir (mail):

Well, the good jury nullification goes with the bad. I wonder if the outcome would have been the same had there been damage that interfered with the equipment operation rather than graffiti.

I do have lots of problems with Hansen's involvment with such a case. Too bad the prosecutor didn't really go after his qualifications as an expert, maybe we could get some of the data he's been withholding.

9.13.2008 6:38pm

Thomas_Holsinger:

Mr. Hansen has civil liability exposure here based on civil conspiracy and extra-territoriality. American courts certainly have personal jurisdiction over torts committed by American citizens overseas.

9.13.2008 6:39pm

JK:

Really this is just jury nullification, and while I have mixed feelings about nullification, this hardly seems like a particularly egregious case. If you believe in the jury system then you have to accept that highly unsympathetic parties will sometimes get screwed.

9.13.2008 6:42pm

Mike G in Corvallis (mail):

... the world's leading climate scientist, Professor James Hansen of Nasa ...

Gah. This is like calling Carl Sagan, in his day, "the world's leading astronomer." In other words, this is the only person in the field of study whose name is known to the author of the piece.

9.13.2008 6:46pm

Fub:

Jurors accepted defence arguments that the six had a "lawful excuse" to damage property at Kingsnorth power station in Kent to prevent even greater damage caused by climate change.

I know nothing about this British "lawful excuse" criminal defense, but it does sound similar to the necessity affirmative defense in some states here in the USA.

However, most versions of criminal necessity defense require that defendant has a reasonable belief (even if mistaken) that his acts will prevent the evil. I'm not sure how these protesters explained to a judge or jury the belief that painting somebody's name on a smokestack would prevent any global warming, or greenhouse gas emissions or whatever.

Over the years I've seen a couple of crim cases locally where necessity was raised. One, which was thrown out at the threshold hearing, was raised by a group of abortion protesters who invaded and trashed a clinic, or otherwise did some unlawful acts in their protest. As I recall, part of the court's reasoning was that any person whom the unlawful acts prevented from obtaining an abortion at that clinic would simply get an abortion elsewhere. So in effect the unlawful acts did not prevent the harm that defendants claimed it did, and could not reasonably be expected to do so.

9.13.2008 6:47pm

Fub:

Soronel Haetir wrote at 9.13.2008 6:38pm:

Well, the good jury nullification goes with the bad.

JK wrote at 9.13.2008 6:42pm:

Really this is just jury nullification, and while I have mixed feelings about nullification, this hardly seems like a particularly egregious case.

This is not jury nullification. This, insofar as it resembles the necessity defense, is a defense provided by law in which defendant must plead and prove certain facts.

Jury nullification is bringing a verdict despite the facts.

9.13.2008 6:57pm

randal (mail):

The article doesn't say whether civil liability might remain.

Let's say that they have to reimburse the 35,000 lbs. I kindof like that plan. Efficient advertizing.

9.13.2008 8:36pm

SMatthewStolte (mail):

This seems analogous to, say, private citizens shutting down a newspaper on the grounds that it is spreading an ideology harmful to society. Or maybe vandalizing a movie theatre for playing films that portray the military in a bad light (thus, pressuring the film industry to make a more patriotic films).

9.13.2008 9:08pm

Brooks Lyman (mail):

That must have been some job of graffiti, to cost £35K to remove!

9.13.2008 9:09pm

pmorem (mail):

I find it odd that the "Necessity" defense could be applied to stopping something that is not itself criminal.

That makes pretty much everything a target, with the courts as arbiters of what is and is not acceptable, rather than leaving it in the political realm to set law.

9.13.2008 9:52pm

Gabriel Malor (mail):

Fub, in the UK the lawful excuse defense was meant by Parliament to be applied subjectively. It requires only that the person have an honest belief. It need not be a reasonable one.

9.13.2008 9:58pm

JBL:

Does this decision have precedential force in the UK? Because if it does, they pretty much just threw out the rule of law. Given the tenuous connection between the act and the stated goals, this decision excuses pretty much anything.

9.13.2008 10:05pm

Soronel Haetir (mail):

That must have been some job of graffiti, to cost £35K to remove!

Union wages.

9.13.2008 10:08pm

Harmon Dow (mail):

I'm not sure that pmorem is correct. The doctrine of necessity supposes that a person commits a criminal act in order to prevent a harm greater than that act. While I would guess that the doctrine is normally raised in a situation where the harm being prevented results from a criminal act, I don't think it, well, necessarily does.

For example, I might take a bucket from the hardware store in order in order to fill it with water to put out a fire that threatened other properties. Were I charged with theft, it seems to me that the doctrine of necessity would apply, even though the spreading of the fire is not a criminal act.

9.13.2008 10:11pm

gerbilsbite (mail):

Suppose a chemical plant has a pipe running out of it that improperly dumps caustic chemicals into a nearby waterway that flows into a much larger body. If an environmentalist group were to plug that pipe, and the ensuing backup of caustic substances caused damage inside the plant, should they be held criminally liable for those damages?

9.13.2008 10:17pm

Bored Lawyer:

And since no automobile is carbon-neutral (yet), I think the next step should be to destroy all sorts of vehicles. Starting with those belonging to certain jurors.

Actually, let me suggest a much simpler next step: the electricity to the homes of each juror (and each of the defendants) should immediately be cut off. Too large a carbon footprint, and all that.

9.13.2008 10:26pm

zippypinhead:

The obvious and reasonably foreseeable futility of defendants' actions means the necessity defense is inapplicable. The defendants' actions could not cause any material reduction in greenhouse gas emissions (even at this one plant over the course of a year given how quickly it could be repaired) means the necessity defense is inapplicable on these facts. This is no more a "necessity defense" under the law than banging on the shroud of a warhead and pouring duck's blood on it caused an end to the Cold War. Rather, it caused USAF to take one missile off-line for a few hours until the dents were banged out and the blood washed away.

If "lawful excuse" is really applicable to this conduct under UK law, then methinks the law's an ass...

9.13.2008 10:39pm

Fub:

Gabriel Malor wrote at 9.13.2008 9:58pm:

Fub, in the UK the lawful excuse defense was meant by Parliament to be applied subjectively. It requires only that the person have an honest belief. It need not be a reasonable one.

Thanks for that information. If someone could post the actual statute on "lawful excuse", it would certainly help understand this trial court result.

Criminal necessity defense varies among states, and does not exist federally and in some states. My "reasonable belief" reference was only to the defense I'm familiar with.

9.13.2008 10:44pm

fullerene:

Here is the relevant part of the statute on the meaning of "without lawful excuse."

This section applies to any offence under section 1(1) above and any offence under section 2 or 3 above other than one involving a threat by the person charged to destroy or damage property in a way which he knows is likely to endanger the life of another or involving an intent by the person charged to use or cause or permit the use of something in his custody or under his control so to destroy or damage property.
(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; or
(b)
if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed—
(i) that the property, right or interest was in immediate need of protection; and
(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.
(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.
(4) For the purposes of subsection (2) above a right or interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise.
(5) This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges.

9.13.2008 10:57pm

Richard Aubrey (mail):

So how do you "prove" an "honest" belief?
I could, as mentioned above, destroy the power drop to the home of the meathead jurors in order to punish them. But my defense was that I honestly thought I was doing a good thing to prevent their carbon footprint from destroying the world.
Seems I could do pretty much anything I wanted to those morons. Until I got a reasonable jury. Which, come to think about it, would probably acquit me and buy me lunch.

9.13.2008 11:15pm

SenatorX (mail):

It's like an SNL skit where people do outrageous things to other people’s property but then shout "I'm trying to save the planet!" At which point it's hugs and smiles till the next "righteous" act.

9.13.2008 11:39pm

theobromophile (www):

As per above, there is no causal link between vandalism and reduction in carbon emissions. Spray-painting the plant won't shut it down for even a moment. Even if it did, the reduction in greenhouse gases would be negligible.

If we are to believe otherwise, we must also believe that the supply of energy could be substantially reduced by this action, which causes its own set of problems, and its own set of readily foreseeable harms (which could reasonably be punished by criminal action).

9.14.2008 12:24am

kimsch (mail) (www):

I had transcribed Hillary Clinton's speech in Boca on May 21st. She was talking about counting all the votes from Michigan and Florida, saying it wasn't the voter's fault. I had said that that reminded me of jury nullification. I received an email from a couple in Britain regarding nullification that said, in part:

For a thousand years this power of the jury has been a bulwark in Britain against a tyrannical government bringing men and women to the bar under unjust laws. Juries have to be allowed nullification in order to defend liberty and justice.

From what they say there, our judicial system is quite different and seems to provide far more protections than the British system does.

It seems that nullification is a matter of course there.

9.14.2008 12:59am

AKD:

Suppose a chemical plant has a pipe running out of it that improperly dumps caustic chemicals into a nearby waterway that flows into a much larger body. If an environmentalist group were to plug that pipe, and the ensuing backup of caustic substances caused damage inside the plant, should they be held criminally liable for those damages?

What if plugging the outflow caused an unexpected explosion in the plant that killed several workers?

9.14.2008 1:12am

Thomas_Holsinger:

I also point out that Mr. Hansen has now come within the purview of American racketeering (18 USC 1961) and anti-terrorism laws. His actions merit placement on a terrorist watch list and a full body cavity search every time he enters an airport.

His actions are identical to those of overt supporters of "animal rights" violence against laboratories.

Mr. Hansen has well and truly jumped the shark in terms of his credibility. But it would be nice if the victim sued him in federal court here for the damages it suffered. Here's the liability (not jurisdiction) precedent:

Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983):

"The personal representative of the physician's estate brought a wrongful death and survival action seeking damages based on consequences resulting from the physician's death during a burglary. The district court found that appellant, who was not a participant in the actual burglary, was jointly and severally liable with her live-in boyfriend for the killing of the physician under theories of conspiracy and aiding and abetting and awarded a monetary judgment against both of them. Appellant sought review on the issue of her liability. The court found based on the record that appellant knew the purpose of her boyfriend's nightly outings and the means that he used to acquire their wealth. Further, appellant was a long-time willing partner in assisting her boyfriend dispose of the burglary proceeds. Appellant acted as a secretary and recordkeeper for the burglary enterprise and maintained financial transactions solely in her name. Appellant also took unsubstantiated income tax deductions related to the burglary proceeds. The court affirmed the district court's judgment finding appellant jointly and severally liable as a co-conspirator and joint venturer."

9.14.2008 1:34am

Oren:

His actions merit placement on a terrorist watch list

Yup, because his testimony in this case greatly increases the probability that he will violently hijack a plane . . .

9.14.2008 1:39am

SocratesAbroad (mail):

Yup, because his testimony in this case greatly increases the probability that he will violently hijack a plane . . .

And now to knock down both straw men in that statement. For starters, terrorists aren't limited to the trigger men alone; those who lead/organize groups, lend material support, or incite/encourage an attack are just culpable as the actual attacker.
Second, terrorists aren't limited to the plane-hijacking variety. Take, for instance, those who targeted animal researchers with firebombs.

"The threats and attacks are shocking and abhorrent," Santa Cruz Mayor Ryan Coonerty said. "We as a community are unambiguous in our condemnation of these actions. Let me be clear, this is not protest. This is terrorism."

9.14.2008 3:54am

Ursus Maritimus:

It seems this statue could be used to legalize murder of the unpopular and marginalized. By living they were using up the Earths resources, see.

9.14.2008 4:28am

davod (mail):

Was this a civil or governement case.

The global arming meme is entrenched in the UK government. I wonder if the prosecution wasn't warned off by their peers.

9.14.2008 7:44am

davod (mail):

PS: Just how did the US taxpeyer end up being on the hook for Hansen's trip?

9.14.2008 7:45am

PersonFromPorlock:

Mike G in Corvallis:

Gah. This is like calling Carl Sagan, in his day, "the world's leading astronomer."

Hey! I have the fondest memories of the PBS series "Cosmos," starring Carl Sagan and co-starring the Universe.

9.14.2008 8:14am

Prosecutorial Indiscretion:

The U.K. should be fine - they made it through the Dark Ages before, they can tough it out again.

9.14.2008 9:09am

K. Dackson (mail):

The owners of the plant should immediately close it and sell the equipment for scrap value. Let the bastards go without power. It will serve them right.

9.14.2008 9:27am

Oren:

Socrates, if you really want to compare a scientist giving his opinion on a matter (even if, GASP, you disagree) with funding terrorism or firebombing researchers then go right ahead. They aren't comparable though.

Furthermore, if you want to compare graffiti-tagging a building with firebombing someone's house, go right ahead. Also not even remotely comparable.

9.14.2008 9:44am

Public_Defender (mail):

The headline is a little off. A "court" did not "greenlight vandalism." A jury of citizens made the decision. Typically, we don't say that a "court" acts when a jury reaches a verdict.

9.14.2008 12:30pm

theobromophile (www):

The owners of the plant should immediately close it and sell the equipment for scrap value. Let the bastards go without power. It will serve them right.

...then move to Colorado and set up a secret society.... ;)

9.14.2008 2:09pm

K. Dackson (mail):

theo,

Well, yes, but it is not actually necessary.

Public Defender:

Then the jury was composed of a bunch of asses. The power company will just pass the costs on to the consumers.

9.14.2008 4:09pm

Thomas_Holsinger:

The trial judge admitted the testimony over objection. That's classic grounds for reversal after appeal by the prosecution. Which is up to the government concerned.

But the victim can sue Hansen in tort in U.S. District Court even if the British prosecutor does not appeal.

In any event, Hansen's action merits his designation as a terrorist supporter with all the lovely Transportation Security Agency consequences of that.

9.14.2008 5:19pm

davod (mail):

"The U.K. should be fine - they made it through the Dark Ages before, they can tough it out again."

Sorry: They have just gone back to the seventh century. The UK has just approved Sharia courts for civil matters, including marriage problems.

9.14.2008 6:59pm

Duncan Frissell (mail):

Luckily, here, we are free to blow away Green Vandals (and Huns) so they are less of a problem.

9.14.2008 11:09pm

Harry Eagar (mail):

davod, while that was proposed -- and by people who should know better -- last I heard it hadn't been accepted.

(Although it would have a sort of historic precedent for Britons. Its colonial governments left sharia courts in place even while imposing English-style courts for matters not concerning personal status. For example, in Egypt.)

9.14.2008 11:44pm

Litigator-London:

Two points:-

This was a "jury nullification" case pure and simple. That's a price worth paying for the benefit of having juries.

The use of Sharia Courts for dispute resolution is pursuant to our Arbitration Act 1979 - is voluntary and mirrors exactly the provisions under which the Jewish community may choose to have disputes resolved by a Rabbinical Court. No decree of either system can be enforced if contrary to public policy.

9.15.2008 3:14am

Harry Eagar (mail):

Apparently, according to yesterday's Times, there was not any open discussion about whether it would be in accordance with public policy to embrace sharia courts under the 1979 act.

It does not 'mirror exactly' the Beth Din courts, since -- as far as I know -- the Beth Din courts do not include unequal provisions for the sexes.

Given Britain's public policy, as I understand it, about discrimination, it is hard to see how any sharia court decision could not be contrary to public policy.

It might be an accommodation/appeasement of Islamic sentiments, a hangover from the Raj, but it is hard to square with my understanding of the English constitution.

9.15.2008 4:37pm

arbitraryaardvark (mail) (www):

I think a reasonable jury could have concluded that the $35K spent to paint over the graffiti was overkill,and was a subsequent intervening act by someone else, rather than a necessary consequence of what the protesters did. Grounds for reasonable doubt. Let's not assume a press account is infallible about what went on.

9.15.2008 8:53pm

Palski (mail):

The are calling Hansen "the world's leading climate scientist"? First of all, science is not a track and field event. Do they mean that he "leads" in the amount of tv face-time? How sad that this Hansen fellow has become an expert witness for the defense of vandals. He is the world's leading fool.

9.17.2008 3:53pm

Seerak (mail):

By this logic, every single person who supports the expansion of government power (the entire Left and most of the Right) should be fair game, as unlike global warming, the dangers inherent in out-of-control government are proven fact.