Just as some children smile nervously but infuriatingly when they are being scolded, it was impossible to be sure about the enigmatic grin on Green MP Caroline Lucas’s face as police frogmarched her to the meat wagon on Monday afternoon. Officers, who are trained to describe gold cautiously as “yellow metal” and a drunk as someone whose “eyes are glazed, is unsteady on his feet and smells strongly of intoxicating liquor,” invariably have no difficulty in calling the slightest facial rictus on a suspect’s face a “smirk;” and that is a word that might have occurred to some television viewers. Nevertheless it is equally likely that it was a nervous reflex at the anticipation of the prosecution she may face, or triumph at having achieved at least one of her objectives. Or it may just be, as those who know her well assure us, that Ms Lucas is a naturally polite and cheerful individual with a sunny and optimistic disposition, even towards police officers who are arresting her. Whatever the explanation for Ms Lucas’s sphinx-like physiognomy it raises the question of how the law deals with political protests of the sort that have been staged at Balcombe in the last few days.
The answer is that judges tend to express a grudging admiration towards political protestors whilst struggling to prevent them actually using their political views to justify behaviour that would otherwise be unlawful.
The leading case is R v. Jones & others  UKHL 16 in which the House of Lords rejected a number of arguments brought by political protestors who had variously sought to trespass on military land or damage military equipment in protest at what they took to be the unlawful attack by Britain on Iraq. In essence the argument was that they had a defence under S.3 (1) of the Criminal Law Act 1967 which provides:
A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
Their case was that because the Government planned to commit the crime under international law of invading Iraq the protestors were entitled to take reasonable steps to prevent it, for example by damaging military aircraft. The House of Lords took the arguments very seriously, not least because some of the judges probably secretly believed that the war might have been a little questionable in international law, but ultimately concluded that “prevention of crime” referred only to something that was a crime in UK domestic law. Whilst there was indeed a widely recognised international crime of aggression, it was not something recognised as a crime within domestic law. S.3 of the Criminal Law Act therefore did not apply.
What arguments Ms Lucas and her supporters come up with if they are ultimately prosecuted remains to be seen but the prosecution authorities have a tricky balancing act to perform even if they decide that there is prima facie evidence of, say, aggravated trespass or criminal damage or perhaps (in her case) obstructing the highway.
My initial thought, born out of my opinion that Ms Lucas is dangerously misguided, was that they should not hesitate to throw the considerable weight of all three volumes of Stones Justices Manual at her, following up, if necessary, with Archbold’s Criminal Pleading Evidence and Practice including all the supplements.
However, being politically wrong – or even “incorrect” – is not a crime, so they will need to put all such considerations out of their minds and apply the CPS public interest test before launching any prosecutions. Some specific public interest factors are set out in the CPS code of practice. Some of these might indicate that a prosecution would be in the public interest:
On the other hand factors which might point in the other direction are that:
In this case there must also be a considerable public interest in not clogging up the courts with a large number of trials of politically motivated demonstrators who would undoubtedly try to turn witness-boxes into soap-boxes from which to make speeches about fracking. Magistrates have better things to do than listen to them, and prosecutors are also better deployed than responding to the earnest, ingenious and clever legal arguments that the defence would doubtless deploy.
As a general rule the best course for a prosecutor to adopt towards a law-breaker is that which is most likely to wipe the smile off his or her face. Of course if it turns out that serious crimes have been committed then prosecution should follow. Otherwise, it might be better not to indulge Ms Lucas and her supporters with further publicity and the prospect, in very minor and painless ways, of becoming martyrs to their cause.