May 15, 2019
Mike Schwarz has been a human rights lawyer at Bindmans for 25 years. He has represented numerous campaigners, including all three of Jenny's part time staff. He describes the ups and downs of the right to protest over those years.
The crucial lesson is that peaceful protest is vital to the health of our democracy. While individual court cases are important, they have to be seen as part of a process that influences how society and the police handle peaceful dissent.
He regards his most significant case as the Kings North six. These protestors admitted trying to shut down the coal powered station by occupying the smokestack and painting the word "Gordon" down the chimney but argued that they were legally justified because they were trying to prevent climate change causing greater damage to property around the world. It was the first case in which preventing property damage caused by climate change had been used as part of a "lawful excuse" defence in court. A majority of the jury agreed with them.
The police have a duty to facilitate protest, but their desire to do this ebbs and flows. That desire reached a highpoint after the death of newspaper vendor Ian Tomlinson during the G20 protests, as he was struck by an officer from behind when he was walking away with his hands in his pockets and was not part of the protests. However, it diminished quickly after the London riots of 2011.
Mike is worried that democratic expressions of dissent are being undermined by cuts to legal aid and judges increasingly ruling against the use of defences which justify actions taken for the greater good. Judges are closing off the legal options where people have caused minor damage to property, or got in the way of companies doing business, without addressing the problems/concerns that lead people to protest about illegal wars, or weapons of mass destruction, GM crops or climate change.
The Mitting Inquiry into undercover policing is an example of a judge taking a conservative view of secrecy and state power. The judge may be misogynistic and hold out-dated views about equality, but the Inquiry could still have positive outcomes because the campaigners themselves are very organised and have done the bulk of the investigating. This has been time consuming, but they have exposed a lot of the dirty dealings that spycops have been involved with.
Our society needs to give more respect to those without money or power, who have to use non-violent protest as their way of getting attention and gaining influence. We must give them an equivalence with those who can act in the dark, by having the personal access to lobby, or via large donations.
It is deeply disturbing to watch how the courts are bending over to accommodate companies with deep pockets that are seeking civil injunctions. These injunctions against 'persons unknown' can cost individual campaigners thousands of pounds, or even their house, but include activities such as 'slow walking'. Although these companies have deep pockets, they do not have right on their side. Courts need to get a grip and define the limits of the right to protest.