Six Palestine Action protestors were acquitted by a jury of aggravated burglary, following a break-in at an Elbit Systems UK factory near Bristol in August 2024. Three of the six were acquitted of violent disorder, while no verdict was reached in relation to three others jointly so charged, nor was a verdict reached on a charge of inflicting grievous bodily harm with intent (against one defendant, accused of striking a police officer in the back with a sledgehammer, causing serious injury). The BBC also reports that the jury could not reach verdicts in relation to charges of criminal damage.
The verdicts (or lack thereof) have inevitably proved a Rorschach Test for those with a settled political view on the protestors and/or their professed cause: either a valuable reminder of the importance of juries in upholding the civil liberties of those on the right side of history, or a perverse verdict which gives the green light to mob violence in pursuit of a political objective. As ever, this blog does not offer a criticism nor a defence of the outcomes, for the evergreen reason that I was not in court to hear all the evidence, and the slightly more deciduous and case-specific reason that there may well be a retrial, and so care must be taken as to what is published. It follows that I am not going to attempt an analysis of the evidence, and will have to be somewhat circumspect with the facts of the allegations; rather I will set out some general legal principles relating to the offences charged, which I hope may help shed some light on the issues that the jurors were grappling with.
By way of factual background, below is taken from the BBC’s summary, for those unfamiliar with the case:
Palestine Action allege Elbit Systems UK is involved in the manufacture and supply of weapons to the Israeli military – a claim the company strongly denies. […]
During the trial, the court heard [that one defendant], a charity worker, drove a prison van into the site’s perimeter fence before the vehicle was used as a “battering ram” to get inside the factory.
In what [that defendant] described as “the craziest 20 minutes” of her life, the six defendants carried out their action before being arrested by police. Prosecutors alleged that as security guards tried to stop the activists, the guards were sworn at and told to leave, had sledgehammers swung at them and were whipped, while one was sprayed with a foam fire extinguisher.
Rajiv Menon KC, defending, said they had not expected security guards to enter the factory during their action and added the defendants were “completely out of their depth”.
The group denied any intention to be violent, despite allegations from prosecutors that they had carried in sledgehammers to fight security guards. They said they had defended themselves when security officers over-reacted. None of the security officers are under criminal investigation.
So let’s look at what the law says about the charges that were before the jury. As ever, this is an explanation of the law, not a defence of it.
Aggravated Burglary
Aggravated burglary is an offence created by section 10 of the Theft Act 1968.
In short, aggravated burglary is committing a burglary armed with a weapon. However, it can actually be a complex offence to prosecute. We can see that there are several elements to the offence, and, as with any criminal trial, the burden is on the Prosecution to prove each of those elements to the criminal standard (to make the jury “sure” – the modern reformulation of “beyond reasonable doubt”).
The first element to prove: that the defendant committed a burglary. Burglary is itself defined in section 9 of the Theft Act 1968:
Burglary carries a wider definition than some people might assume. It is not solely about stealing or intending to steal: the offence is also committed if you enter a building (or part of a building) as a trespasser (i.e. without permission) intending to inflict grievous bodily harm on somebody inside, or intending to do unlawful damage to the building or anything inside.
If the allegation relates to an intent to do unlawful damage, then the offence of burglary is committed at the time that the defendant enters the building with that intent. This is important when we then look back at aggravated burglary:
Because to prove aggravated burglary, the Prosecution must prove that the defendant had with him the firearm/weapon of offence/explosive at the time of the burglary. Where the defendant has a firearm, this might be straightforward enough to prove. It doesn’t matter what the defendant intended to actually do with the firearm; merely having it is enough. But where the allegation relates to another “weapon of offence”, it can become complicated. Take a hammer, for instance. A hammer is not itself “offensive” – it is not made for causing injury, nor (usually) is a hammer adapted for use for causing injury or incapacitation. Therefore, in order for a hammer to become a “weapon of offence”, the defendant(s) who has/have the hammer must intend it for such use (i.e. to cause injury). And they must have that intention at the time of the burglary. Drawing it all together, it means, in our scenario, that the Prosecution must prove that at the time of entering the building (intending to cause damage), the defendant must have intended his hammer to be used for causing injury (if the need arose). If the jury thought that the defendant might have entered the building with the hammer only ever intending to cause damage, and only used it as a “weapon of offence” upon being unexpectedly confronted by somebody once inside, the offence of aggravated burglary would not be made out. Other offences may be, but not aggravated burglary.
And, it bears repetition (because it is repeated to every jury more times than they probably care to hear) – the burden is on the Prosecution to make the jury sure. If the jury think the defendant might be guilty, the verdict is not guilty. If the jury think the defendant is probably guilty, the verdict is not guilty. Almost sure of guilt? Not guilty. And so on.
Violent Disorder
Violent disorder is a public order offence, found in section 2 of the Public Order Act 1986:
The Prosecution therefore need to prove that a defendant:
was one of three or more persons present together;
used or threatened violence
and
that violence was unlawful; and
the combined conduct of those persons would cause a person “of reasonable firmness” (who does not in fact need to be at the scene) to fear for their personal safety.
In many violent disorders, an issue can arise as to whether the violence was unlawful, or whether a defendant was using violence in lawful self-defence (or lawful defence of another, or lawful defence of property). I looked at self-defence in another context a while ago (and expanded upon it in Chapter 1 of Fake Law, if you’re hungry for more). The fundamental principles are these:
A person acting in genuine self-defence is entitled to use such force as is reasonable in the circumstances as he believes them to be. This provides a defence to any charge of violence, up to and including the use of lethal force;
The first question that a jury must ask is Did the defendant believe or may he have believed that it was necessary to use force to defend himself an attack or imminent attack on himself or others or to protect property or prevent crime?
The second question is Was the amount of force D used reasonable in the circumstances, including the dangers as D believed them to be?
The burden is on the prosecution to disprove self-defence. It is not for a defendant to prove that he was acting in self-defence. The prosecution have to prove beyond reasonable doubt (so that a jury is sure) that the defendant was not acting in reasonable self-defence.
Let’s break down what this means.
“A genuine belief that force is necessary”
The question here is subjective – i.e. did the defendant genuinely believe he needed to use force in self-defence? It does not matter if the defendant was in fact mistaken, as long as he believed that at the time. So if a 6-foot man wearing a terrifying bear costume runs towards you brandishing what looks like a machete, and you genuinely believe he is about to attack you, the fact that you later realise the “machete” is a hunnypot and that you’ve KO’d Winnie The Pooh in front of a distraught crowd of Disneyland toddlers does not matter. The fact that your belief in the need for force was, by objective standards, unreasonable – who would mistake a hunnypot for a machete, for Lord’s sake? – does not matter at this stage. It might make the jury less likely to accept your insistence that your belief was genuine; however the bottom line is that a mistaken, unreasonable but genuinely-held belief in the need for force is enough. (The only exception is if your mistaken belief is due to your voluntary intoxication. Because, frankly, getting tanked on Stella and raining fury on Winnie The Pooh in a fountain is not something the courts can condone).
“Reasonable force”
Whether force is reasonable has to be judged by the circumstances as the defendant believed them to be, even if, as above, he was in fact mistaken. So if you genuinely believe that a machete attack is imminent, what is reasonable has to be assessed by reference to that belief. What is reasonable will obviously depend on the individual case, but the famous words of Lord Morris in the case of Palmer v R 1971 AC 814 are distilled in some form to juries when they are given their directions of law by the trial judge:
“If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …”
Further established principles include that if force is “disproportionate”, it cannot (usually) be “reasonable”. While the possibility of a defendant having been able to retreat is a factor to consider when assessing reasonableness, there is no “duty to retreat”. It is also long-established that a person may strike pre-emptively – you do not need to wait to be hit. Similarly, the fact that the defendant may be the initial aggressor, or may be committing a criminal offence, does not mean that he cannot argue self-defence if he is attacked: it is possible that a defendant’s initial aggression may have resulted in a response by the victim which was so out of proportion as to give rise to an honest belief on the part of the defendant that it was necessary for him to defend himself.
Inflicting grievous bodily harm with intent
Inflicting grievous bodily harm with intent is the product of section 18 of the Offences Against the Person Act 1861, the Victorian statute under which most violence is still prosecuted:
Cutting through the 19th century legalese, what has to be proved is that a defendant:
unlawfully (i.e. not in self-defence or defence of another, as above)
caused grievous (meaning “really serious”) harm to another person
intending to cause grievous (really serious) harm
Sometimes there will be a dispute over whether the level of injury amounts to grievous (really serious) harm, or whether it amounts only to actual bodily harm (which is any level of injury below grievous, and which is more than transient or trifling). Juries are usually told simply that “really serious harm” has its ordinary, everyday meaning, and there is no special definition. It is not necessary that the harm should be either permanent or dangerous, nor is it a precondition that the victim should require treatment or that the harm would have lasting consequences. Sometimes (albeit rarely) there will be contested medical evidence as to the nature of the injury and its effects on the alleged victim.
The main issues that arise in ‘section 18’ trials tend to be self-defence (see above) and the question of intent. Often, a defendant will admit unlawfully causing really serious harm, but will deny that that was their intention. They will say, for instance, “Yes, I intended to cause the victim some harm, but not really serious harm.” The trial will then examine the circumstances of the violence, and the factors that support or undermine the prosecution contention that really serious harm was intended. For example, the use of a particularly dangerous weapon can be good evidence of such an intent. Multiple or sustained blows, likewise. Where on the body the victim is targeted can be a pointer. Things said by the defendant at the time of the violence often give a clue as to what is in his mind. If he has to be dragged kicking and screaming away from his victim, still trying to get another kick in, this can be unhelpful if you are defending. By contrast, a defendant delivering a single punch and walking away, even if catastrophic injury results, might find that a jury struggles to be sure that he intended really serious harm. A defendant’s character can also illuminate: somebody with a lengthy history of inflicting serious violence might be in a less favourable position than a defendant of good character with testimonials speaking to his calm and gentle disposition.
Criminal damage
Criminal damage is defined in the nattily-titled Criminal Damage Act 1971. Section 1(1) provides:
“A person who without lawful excuse destroys or damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”
The prosecution therefore has to prove the following:
The Defendant damaged property;
The property belonged to another;
The Defendant intended to damage the property or was reckless as to whether it would be damaged; and
The Defendant did not have a lawful excuse for damaging the property.
Lawful excuse for damaging property is something I looked at in 2022 at the time of the Colston statue trial, but all that perhaps needs to be said for current purposes is that the judge appears to have directed the jury that no defence of lawful excuse arose on the facts of the case.
Jury equity
Finally, it is worth looking at a principle of English and Welsh criminal law that has featured in some of the reporting and commentary: what is often referred to as “jury equity” or “jury nullification” – the right of a jury to acquit any defendant.
Even where a jury is sure of a defendant’s guilt, our system still does not and cannot compel a jury to find a defendant guilty. Since the 17th century, juries have been entitled to acquit a defendant for any reason. They are not explicitly told this – they are directed by the judge that they must reach verdicts based on the evidence they have heard. But a judge cannot direct, much less force, a jury to convict. So the jury retains the prerogative to acquit, irrespective of the strength of the case against a defendant, and the courts cannot interfere. This principle is embedded into our common law. One of the most common arguments in favour is the protection that the jury affords the individual from the power of the state. It means that, if you are tried under an unjust law, your fate is ultimately in the hands of your peers, who can mark their displeasure by an acquittal. There are arguments against, of course, not least that a perverse acquittal runs counter to the oath that every juror swears to return a verdict according to the evidence; that it effectively subjugates evidence-based decisions made in accordance with the law to a jury’s random personal morality. This tension is the reason that the courts have held that defence counsel are not permitted to address the jury on jury equity, or to invite jurors to acquit according to their conscience.
Juries do not give reasons for their verdicts, nor are they ever allowed to reveal what takes place during their deliberations. Understanding why a jury has – or has not – reached a particular verdict is therefore, even for those of us who have been in the courts for decades, an exercise in divination.
Centre for Nigeria Progress 