Judge’s veiled criticism of Israeli actions in Gaza causes a legal dilemma 23Sep10 September 24, 2010

Summing up in trial of activists who broke into Brighton arms company could be seen by campaigners as setting precedent

by Joshua Rozenberg  -  The Guardian -  23 September 2010

As the legal establishment gears up for the new legal term starting at the end of next week, two of its leading figures must decide whether to do anything about a case that caused widespread concern during the summer.

His Honour George Bathurst-Norman presided over the trial of eight campaigners who were acquitted of conspiring to cause criminal damage at a company in Brighton involved in the manufacture of weapons components for Israeli F-16 fighter jets.

Bathurst-Norman – who retired in 2004 and, therefore, sat as a deputy circuit judge – correctly directed the jury that a defendant has a lawful excuse for damaging someone’s property in order to protect property belonging to someone else.

For that defence to apply, it is also necessary to show that the defendant believed that the other person’s property was in immediate need of protection and that the means of protection used were reasonable in the circumstances. That would cover the case of a firefighter who smashes a window because he/she believes that a building may be in danger.

In this case, the defendants argued that they had damaged property in Brighton to protect property in Gaza from being damaged by the Israeli air force.

They also argued that they were entitled to use such force as is reasonable in the prevention of crime – in this case, war crimes. Unlike the “lawful excuse” defence, this is an objective test.

It appears from Bathurst-Norman’s summing-up that the Crown Prosecution Service had accepted the defendants’ claim that the Israelis were guilty of war crimes during Operation Cast Lead in Gaza, nearly two years ago.

That led the judge to make his personal feelings very clear while, in the same breath, telling the jury to ignore them. He said, for example: “It may be as you went through what I can only describe as horrific scenes, scenes of devastation to civilian population, scenes which one would rather have hoped to have disappeared with the Nazi regimes of the last war, you may have felt anger and been absolutely appalled by them, but you must put that emotion aside.”

Using the classic formulation that judges adopt when distancing themselves from their own remarks, he added: “You may think that perhaps ‘hell on earth’ would be an understatement of what the Gazans endured at that time.”

There have been calls for Bathurst-Norman to be disciplined over these remarks. He would no doubt say he was doing no more than reminding the jury of the evidence they had heard. The regulations under which judges may be disciplined say that a complaint must be dismissed if “it is about a judicial decision or judicial case management, and raises no question of misconduct”.

That leaves Bathurst-Norman in the clear. Even so, I would not be surprised if Lord Judge, the lord chief justice, took the opportunity to remind judges that they should not appear to be giving their own opinions when addressing a jury.

More difficult, perhaps, is the decision to be taken by Dominic Grieve, the attorney general. Under section 36 of the Criminal Justice Act 1972, he may seek the opinion of the court of appeal on a point of law in a case that has led to an acquittal. Whatever the outcome, however, the acquittal remains unaffected.

Grieve has been asked – by me and, I believe, others – to seek a ruling from the higher courts on whether the end can justify the means in cases such as this.

To some extent, senior judges have said it cannot – particularly Lord Hoffmann when ruling on charges of criminal damage and aggravated trespass against defendants seeking to disrupt Britain’s involvement in the Iraq war.

But that case dealt with different offences. Without a clear ruling from the courts, there is a risk that campaigners will regard Bathurst-Norman’s summing-up as some sort of legal precedent. It is not.

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