What the judge said and did not say at the Just Stop Oil hearing, and what the judge should and should not have said

22nd February 2023

The from-court sensation last week was not about something in the High Court, the Old Bailey or any of the other august courts of the English capital, but about what happened at a hearing at Wolverhampton Magistrates’ Court.

It was a legal case that involved no great issue of law, and indeed there seems no dispute about the applicable law or even its application.

The sensation was not the result of sensational news reporting from an intrepid news reporter, for there seems to have been no media present at the hearing.

And there does not seem to have been any miscarriage of justice, and the findings of guilt and acquittals seem not to have been wrong on the available facts.

But there was a sensation, all the same.

Tweets went viral, with one tweet on the hearing recording 1.4 million views.

The case was taken up by the national press, and pundits were emphatic in their support or opposition to what happened.

A former home secretary said this:

And, from the opposing perspective, a well-known Canadian campaigner said this:

And all this for case in a local magistrates’ court, with no great issue of law, no obvious miscarriages of justice, and it seems no news reporters present to record what happened.

Regardless of the substance of what happened, it is an example of what happens when the legal system and modern social media (and after a lag, mainstream media) meet.

So what did happen at that hearing at Wolverhampton Magistrates’ Court?

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The straight answer is that we perhaps cannot be certain absolutely what happened, as accounts differ, and there seems to have been no recording of the hearing.

But what we can work out is as follows.

We are told there were nine defendants.

(There is a reason for the “We are told” choice-of-words, as will become apparent.)

We are also told the offence was aggravated trespass, which is an offence under section 68 of the Criminal Justice and Public Order Act 1994:

The Crown Prosecution Service guidance on the offence is as follows:

The prosecutions were in respect of this incident from April 2022, as reported by the local news Express & Star:

According to that news report:

The Birmingham Evening Mail reported:

“A protester was carried away by five police officers during a new blockade at a Birmingham fuel terminal.

“Activists from Just Stop Oil again blocked access to the Esso site in Tyburn today, Sunday, April 3, despite more than 100 arrests across the country this week. A police cordon was in place in Wood Lane, where officers had been stationed since 7.30am. West Midlands Fire Service was also in attendance.”

Two days before, the Birmingham Evening Mail reported:

“A Just Stop Oil protester glued his hands and bare feet to the road during a nine-hour protest in Birmingham. Others have glued themselves to each other.

“Up to 45 protesters have been disrupting oil tankers heading in and out of the Esso Fuel Terminal on Wood Lane, Tyburn, near Erdington, since 4am today, Friday, April 1.”

The “Just Stop Oil” group behind the protests published this release at the time:

“For the third day in a row, supporters of Just Stop Oil have disrupted oil supplies from 7 critical oil facilities near London and Birmingham in support of their demand to the UK government to end new oil and gas projects in the UK.

“Early this morning people climbed on and blocked oil tankers at 5 critical oil terminals. A few have entered the loading bay at Buncefield oil terminal in Hertfordshire and are standing on oil tankers holding banners.

“At Kingsbury, Midlands and Esso terminals in Birmingham oil tankers have been prevented from leaving by people sitting in the road.”

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From the contemporaneous news reports and the contemporaneous Just Stop Oil press release there can be no doubt that (a) disruption was caused and (b) disruption was intended to be caused.

As such, anyone who caused the disruption and intended to cause the disruption could have no serious defence to a charge of causing and intending to cause the disruption.

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And so from the protest last April, a prosecution was brought this month at Wolverhampton Magistrates’ Court.

We are told that that the hearing involved cross-examination, and that evidence was put in by the defendants.

This would mean that notwithstanding the openly expressed intention by Just Stop Oil to cause disruption, and the evidence of the disruption caused, the defendants pleaded not guilty.  This would also accord with two of the defendants being acquitted.

Seven of the defendants were however found guilty.

The judge – District Judge Wilkinson – said some things.

And this is when things become less certain.

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A judge can say various things during a hearing – indeed, no one is usually in a position to tell them to shut up.

A judge making any significant decision will usually give reasons.

A judge imposing a sentence will give what are called “sentencing remarks” – which, in some national-profile cases are collected and published by the Judicial Office (previous examples are here).

But when a judge acquits they may also give reasons.

And sometimes what a judge says is set out in a prepared script, sometimes it is based on notes, and sometimes a judge may speak without notes.

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After the hearing, the Just Stop Oil published a press release:

This was quite the headline, given that there were seven defendants found guilty.

The press release also contained what it called a “summation” – which is not a legal term for anything a judge says – and this “summation” is quoted as if it was verbatim:

“It’s abundantly clear that you are all good people. You are intelligent, articulate and a pleasure to deal with. It’s unarguable that man-made global warming is real and we are facing a climate emergency. Your aims are admirable and it is accepted by me and the Crown Prosecution Service that your views are reasonable and genuinely held. Your fears are ably and genuinely articulated and are supported by the science.

“When the United Nations Secretary General gives a speech saying that the activity of fossil fuel companies is incompatible with human survival, we should all be very aware of the need for change. Millions of people, and I do not dispute that it may be as many as 1 billion people, will be displaced as a result of climate change.

“No-one can criticise your motivations. You all gave evidence that was deeply moving. I certainly was moved. The tragedy is that good people have felt so much, without hope, that you feel you have to come into conflict with the criminal justice system.

“Thank you for opening my eyes to certain things. Most, I was acutely and depressingly aware of, but there were certain things.

“I say this and I mean this sadly, I have to convict you. You are good people and I will not issue a punitive sentence. Your arrests and loss of good character are sufficient. Good people doing the wrong thing cannot make the wrong thing right. I don’t say this, ever, but it has been a pleasure dealing with you.

“You should feel guilty for nothing. You should feel proud that you care, have concern for the future. I urge you not to break the law again. Good luck to all of you.”

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It was the screenshot of this “summation” that went viral.

And, as you can see, it is the last of the paragraphs quoted which provided the headline to the press release.

The impression of that last paragraph (given the “you” in the prior “… I have to convict you…”) is that the judge’s remark that “You should feel guilty for nothing” is addressed to all the defendants.

But that final remark is no more striking than the rest of the quoted text.

Did a judge really say all these things to defendants in a criminal case?

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When I saw the viral tweets I did nothing to promote or amplify them.

In fifteen years of legal commentary I have learned that when a judge is reported to have said something sensational – especially if it accords with your world-view – it is better to wait for it to be verified before congratulating or castigating the legal system.

But pretty soon these viral judicial remarks prompted an equal and opposite reaction.  The Daily Telegraph reported:

The news report continued:

“But on Friday afternoon, the Judicial Office, which represents judges, admonished the group for “misquoting” the judge. […]

“In a rare intervention, the body accused them of taking a phrase “out of context” and issued an almost entirely different account, saying it was “what the judge actually said”

“[…] the Judicial Office said: “It was said to one of the defendants who in his evidence had said (through tears) that he felt guilty for not doing enough to save the planet for his daughter.”

(The judge’s statement was also posted on the Crimeline site, though inadvertently incorrectly titled as “full” sentencing remarks.)

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An “almost entirely different account”?

This was becoming fascinating.

So far in this post I have relied on the Just Stop Oil press release for the from-court facts – hence the “We are told” formulation above – but the facts stated above – charges, number of defendants, disposals – do not seem to be controversial, or indeed controverted.

But now we have an alternative version of what happened.

The Judicial Office had contacted the judge, who provided his own note of what was said.

The judge’s note was:

“As a judge my overriding duty is always to uphold the law without fear or favour.

“This is not a court of morals it is a court of law, if I allow my own moral compass or political beliefs to influence my decisions and ignore the law where it is convenient to me to do so then the court becomes one where the rule of law no longer applies.

“If judges across the criminal justice system did the same then there would be no consistency and no respect for the law, decisions based on the personal beliefs of members of the judiciary cannot be consistent with the rule of law and the ideal that each law will apply to all equally.

“Trust in the rule of law is an essential ingredient of society and it will erode swiftly if judges make politically or morally motivated decisions that do not accord with established legal principles. Indeed I would become the self appointed sheriff if I acted in such a way.

“It is abundantly clear that you are all good people, intelligent and articulate and you have been a pleasure throughout to deal with. It is unarguable that man made global warming is real and that we are facing a climate crisis. That is accepted and recognised by the scientific community and most governments (including our own).

“Your aims are to slow or even stop the advance of global warming and therefore to preserve the planet not just for generations to come but for existing generations. No one can therefore criticize your motivations and indeed each of you has spoken individually about your own personal experiences, motivations and actions.

“Many of your explanations for your actions were deeply emotive and I am sure all listening were moved by them, I know I was. In simple terms you are good people with admirable aims.

“However if good people with the right motivation do the wrong thing it can never make that wrong thing right, it can only ever act as substantial mitigation.”

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The Judicial Office also told reporters by email on Friday last week:

“The judge in the case pointed out that Just Stop Oil have have misquoted him and put in words he never spoke. He has sent [us] the text of what he actually said below.

“They have also quoted the line, “You should feel guilty for nothing” out of context. It was said to one of the defendants who in his evidence had said (through tears) that he felt guilty for not doing enough to save the planet for his daughter. It was not in the context that the seven convicted should feel guilty for nothing which would make no sense at all in the context of the judge having convicted them.”

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I asked the Judicial Office whether the judge’s note was read out verbatum in court – or it it was just the basis of what was said in court.  I also asked for confirmation that the note was not prepared after the hearing.

I was told the following:

“[these] were words that the judge had prepared before sentencing and were said verbatim.  He made some other comments as part of his sentencing but these were based on notes he made in advance but were not delivered verbatim.  As there is no recording or transcript made of proceedings in the magistrate court and in the absence of fully written sentencing remarks, this was the best [we] could provide at short notice in terms of what the judge had said in his own words.”

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If you compare and contrast the two statements – what Just Stop Oil said and what the judge said through the Judicial Office – there are three main points of comparison and contrast.

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The first part of the judge’s comments are not in the Just Stop Oil press release, and they are a statement of general principle.  As my fellow legal blogger Matthew Scott avers, “As an abstract statement of principle that could not have been put better.”

But as Scott also correctly observes, these remarks expressly introduce a tension between “politically or morally motivated decisions” and “established legal principles”.

As such, these prefatory remarks do not really help the judge against criticism – and they do not really change the framing of what then follows.

Yes, these general remarks provide a context – but they do not render what then follows as out of context.

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If we now jump to the end of the comments, and to the Judicial Office email, the judge, however, has a good point.

The “you should feel guilty for nothing” remark appears not to have been directed at all the defendants, but to only one and in a specific situation.

Just Stop Oil accepted this, and they amended part of their press release accordingly – though this was too late for the viral tweets.

Just Stop Oil, however, have not amended the sensational title of their press release, which still gives the impression that the statement was said to all the defendants:

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As for the middle part of the text, there is little substantial difference between the two accounts.

Other than the paragraph “When the United Nations Secretary General gives a speech saying that the activity of fossil fuel companies is incompatible with human survival, we should all be very aware of the need for change. Millions of people, and I do not dispute that it may be as many as 1 billion people, will be displaced as a result of climate change.” – which seems an unlikely frolic for a judge to have gone on in sentencing remarks – all the other comments attributed to him seem to have counterparts in the Just Stop Oil account.

In my view, the differences can be accounted for by brief notes being reconstructed after the event into prose.

Of course, Just Stop Oil should not have presented such reconstructed comments as being verbatim.  But it is a strain to say that their version of what was said is an “entirely different account”.

Indeed, had it matched the judge’s own notes exactly, it would look as if they had secretly recorded the judge.

I asked Just Stop Oil to explain how they put their version together. They said:

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Which leaves the final question: was it right for the judge to say such things – regardless of the reported sequencing?

Here, we should rely on the judge’s own account of what he said.

Judges’ comments when sentencing are not a bad thing.

Every court day, up and down the country, criminal judges will say things in what are immediate situations that exhort the defendant to do better in future or admonish the guilty.

At worst, such statements are harmless or futile, and at best, such statements may be beneficial to those being exhorted or admonished, and thereby to society.

Not all sentencing remarks can or should be as impeccable as the ones published on the national judicial website.

But.

Judges can and do say things they should not say.

Here a judge was addressing protesters in respect of a highly publicised incident organised by a highly publicised pressure group.

It was entirely foreseeable that what he said would be publicised.

And even it was not foreseeable, and it was an otherwise unexceptional courtroom on a cold and routine day in Wolverhampton Magistrates’ Court, it was inappropriate for a judge to express such general political sentiments, either in sentencing remarks or otherwise.

As it happens, as someone with politics broadly as green as my surname, the sentiments expressed by the judge would be ones I would like to see expressed more often by politicians.

But imagine a latter-day Judge Pickles or Judge Argyle type judge expressing sentiments in support of what illiberal right-wing protesters had done on some other demonstration.

That would be wrong, and would call the administration of justice into question, and so what the judge in Wolverhampton said was wrong too.

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So, in (ahem) summation: Just Stop Oil erred in the title and content of their press release, and the judge erred more seriously in making the comments in the first place, even accepting his own version of his remarks.

And the real problem, as this blog averred recently, is with the refusal by the courts to provide or allow recordings of what judges say in open court.

There is no good reason for this prohibition, and scarcely even a bad reason – it is just unthinking conservatism.

Perhaps there should be a protest organised against it.

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