On 2 December 2025, the Lord Chancellor and Deputy Prime Minister David Lammy announced significant reforms to criminal trials in England and Wales. Defending his proposals on the BBC Sunday programme on 4 January 2026, Lammy justified restricting jury trial on the basis of his strong sense of justice, explicitly pointing to the fact he had a photograph of Martin Luther King alongside Rabbi Heschel marching during the civil rights movement in his office. Lammy’s usage of one of the most historically significant examples of civil disobedience to explain his motivations for jury reform is troubling. The effect of the reforms will lead to jury trials for offences committed in the course of civil disobedience being replaced with summary proceedings before magistrates’ courts, or, if the offence is deemed sufficiently serious, before new ‘swift courts’ composed of a single judge. Since defences for peaceful protesters have been successively removed since 2021, jury acquittals, particularly through jury equity, frequently constitute the last option for protesters to avoid the increasingly harsh sentences legislated for by Parliament and imposed by courts. The removal of jury trial from those convicted of protest-related crimes is the final nail in the coffin for peaceful protesters, ensuring that those who dissent are predictably convicted. 

The Effect of the Reforms on Protest Trials

The Government’s reforms will extend magistrates’ sentencing power up to 18 months (possibly up to two years) to allow more cases to be heard at magistrates’ level. Lammy has also announced the creation of ‘swift courts’ at Crown Court level which will see cases with a likely sentence of three years or less be heard by a single judge. Jury trial will be limited to the almost all indictable offences, such as murder and rape, but will explicitly exclude complex fraud and financial crime cases. The result is that defendants charged with either-way offences will no longer be able to elect trial by jury in the Crown Court. Instead, if the case is sufficiently serious to be allocated by a magistrate to the Crown Court and likely to attract a sentence of three years or less, it will be heard before one judge. 

Either-way offences include an array of offences which are often committed during civil disobedience, such as criminal damage, public nuisance, tunnelling, or interfering with key national infrastructure. While the most serious offences of criminal damage and public nuisance have a maximum sentence of ten years, there is only one case in which a protester has ever been convicted for more than three years imprisonment (Extinction Rebellion co-founder Roger Hallam for conspiracy to cause public nuisance). It is highly probable, therefore, that after the reforms all protesters convicted of an offence committed in the course of civil disobedience will be seen by a magistrate or a single judge at the Crown Court. Jury trials for civilly-disobedient protesters will disappear. This is significant. As the next section will show, the rapid removal of defences for peaceful protesters has meant that jury acquittal is often the last resort for protesters to avoid record-breaking sentences and convictions for the ever-increasing mass of protest-related offences. 

The Successive Removal of Defences for Peaceful Protesters

Defences for offences committed in the course of civil disobedience have been successively removed from protesters. In 2021, the Court of Appeal in R v Thacker and Ors settled much uncertainty and ruled that Crown Court judge was correct in withdrawing the necessity, duress, and prevention of crime (section 3 of the Criminal Law Act 1967) defences from the jury. The Court ruled that since the defendants were engaging in direct action, and not utilising official avenues of dispute resolution, they must accept that they will be convicted and defences should be withdrawn [at 102]. More creative defences have also been taken away. In DPP v Ditchfield, the High Court closed off from protesters section 5(2)(b) of the Criminal Damage Act 1971, which justifies criminal damage done to protect property in immediate need of protection,  ruling that the wording of the defence meant that the criminal damage had to be done to protect property that was only in immediate need of protection [at 19]. For the Court, “an act whose purpose is to put pressure on a public authority to take protective action is, on any natural reading of the word, not capable of conferring immediate protection” [at 19]. 

Furthermore, the Court of Appeal in Attorney General’s Reference No. 1 of 2023 ruled that the judge at the Crown Court should not have permitted the protesters to put forward the belief in consent defence to criminal damage under section 5(2)(a) of the Criminal Damage Act 1971. The protesters had claimed before the jury that they believed that the occupiers of the premises would have consented to the damage if they had been aware that it was carried out to alert those responsible for the premises to the nature and extent of man-made climate change. The Court of Appeal read section 5(2)(a) narrowly, clarifying that to successfully deploy the offence, the defendant must show there is a “sufficient connection between the damage and its circumstances” and such circumstances did not include the merits or importance of the matter about which the defendant is protesting [at 65]. 

Where there has been considerable judicial uncertainty concerns the extent to which protesters can claim that their conviction for protest-related offences would be disproportionate with their Article 10 and 11 rights. In Ziegler, the Supreme Court ruled that the lawful excuse defence to the offence of obstructing a highway under section 137 of the Highways Act 1980 required a fact-specific proportionality assessment to ensure the peaceful protesters’ convictions were not disproportionate with their Article 10 and 11 rights. After some confusion about the scope of the judgement, the High Court in DPP v Cuciurean, which concerned aggravated trespass, ruled that Ziegler is to be confined to section 137 of the Highways Act which contained a lawful excuse defence [at 65]. Lord Burnett was emphatic in stating that Ziegler did not lay down a general principle whereby the prosecution must prove that the conviction of a person tried for an offence which engages Articles 10 and 11 must be proportionate [at 89]. For Lord Burnett, proof of the ingredients of the offence ensured that a conviction was proportionate with Article 10 and 11 [at 73]. 

The Court of Appeal in Attorney General Reference No. 1 of 2022 dealt with the question again. The case concerned the acquittal by a jury in Bristol Crown Court of the protesters who had toppled the statue of the slave trader Edward Colston. The Crown Court judge had instructed the jury to decide if they believed the conviction for criminal damage would be proportionate with the defendants’ right to freedom of expression. The then Attorney General Suella Braverman referred the case to the Court of Appeal to clarify whether a conviction for criminal damage is a proportionate interference with freedom of expression and assembly. Unlike the offence of aggravated trespass, the subject of Cuciurean, criminal damage has a lawful excuse defence. Lord Burnett ruled that because he held the toppling of the statue to be ‘violent’ it was beyond the scope of conduct which engaged Articles 10 and 11, and thus a proportionality assessment would not apply, despite the existence of a lawful excuse defence [at 115]. The judgment did leave open the possibility for protesters who commit minor criminal damage, which does fall within the scope of protection under Articles 10 and 11 according to Strasbourg jurisprudence, to argue their convictions would be disproportionate with their Convention rights [at 116]. 

The Supreme Court in the SAZ ruling confirmed Lord Burnett’s approach in Cuciurean. Lord Reed held that it is possible for the ingredients of an offence in themselves to ensure the compatibility of a conviction with Articles 10 and 11 [at 65]. Furthermore, in confirming the ruling in Attorney General Reference No. 1 of 2022, even where there may be a lawful or reasonable excuse built into the defence, it does not mean an assessment of proportionality needs to be carried out [at 58].As Richard Martin has written, the ‘justificatory paradigm’ present in the Ziegler judgement, where courts must conduct proportionality assessments based on the facts,  has been eschewed in successive rulings in place of a ‘offence-centric paradigm’, where simply fulfilling the ingredients of the offence ensures the conviction is proportionate. The consequence of this paradigm shift is an incredible level of judicial deference to a Parliament promulgating anti-protest laws.

To close whatever gaps may be left in the jurisprudence for protesters to rely on their right to protest to show that conviction would be disproportionate, members of the House of Lords had put forward a flurry of amendments to the Crime and Policing Bill 2024-26 which sought to remove lawful or reasonable excuse defences for offences committed in the course of peaceful protest. Amendment 382B sought to close the gap left open in Attorney General Reference No. 1 of 2022 in regard to the possibility of using the lawful excuse defence against minor criminal damage committed during protest. Amendment 382D sought to neuter the effect of Ziegler by removing the lawful excuse defence for section 137 of the Highways Act 1980. Finally, amendment 382H sought to remove lawful or reasonable excuse defences from all ‘public order offences’. The latter amendment was proposed by Lord Godson, the director of Policy Exchange, a think tank that has received funding from fossil fuel corporations, and which then Prime Minister Rishi Sunak admitted had helped in the drafting of the Public Order Act 2023 which criminalised the tactics of environmental protesters. However, during the House of Lords Debate on the Crime and Policing Bill on 15 January 2026, all these amendments in the end were not moved. 

Jury Equity as the Last Resort

Since 2021, there have been at least ten jury acquittals for offences committed by environmental, and increasingly now Palestine Solidarity protesters, in the course of civil disobedience. Acquittals have occurred at times despite judges directing juries that protesters had no defences. The most prominent of these cases was the acquittal of the ‘Shell Six’ for criminal damage after they spray painted Shell’s London HQ. This example of jury equity, namely where juries acquit defendants based on their conscience rather than the law, became an opportunity for environmental protesters to expose the unjust nature of their convictions. 

Retired social worker Trudi Warner’s one-woman silent protest brought the issue of jury equity squarely into national consciousness. In March 2023, Warner held a placard outlining the notion of jury equity outside the Inner London Court where a jury trial was taking place concerning Insulate Britain protesters charged with public nuisance. After frequenting the court again, Judge Silas Reid had Warner arrested and charged with contempt of court. The Attorney General then decided to seek permission of the High Court to bring contempt proceedings against Warner. In April 2024, the High Court refused permission in Solicitor General v Warner, with Judge Saini describing the Government’s claims of contempt as “fanciful” and that its submissions “significantly mischaracterised the evidence” [at 36]. However, even after the ruling, some judges had continued to threaten protesters holding the same placard Warner had done. 

In September 2024, Judge Hehir had ordered the arrest of eleven protesters during a jury trial outside Southwark Crown Court where Extinction Rebellion co-leader Roger Hallam was being tried for conspiracy to cause a public nuisance. Judge Hehir had done so despite being made explicitly aware of the High Court’s ruling in Warner. Furthermore, Judge Silas Reid, apparently not content with the High Court’s ruling, appeared to have openly threatened jurors in another environmental protester cases with contempt if they do not return a verdict based on the evidence. An anonymous criminal court KC told Private Eye that he had never seen a judge threatening jurors in the way Judge Reid did, suggesting a “clear determination by him to deter them from returning a verdict independently and without punishment”. In December 2025, an appeal was heard on the grounds that Judge Reid had wrongfully directed the jury. 

The growing number of jury acquittals in protest cases caught the attention of the Government’s former protest tsar Lord Walney. Lord Walney’s 2024 report, Protecting our Democracy from Coercion, is sombre reading. It recommends making protesters pay police to protest (recommendation 20), allowing businesses to claim damage from protest organisers (recommendation 11), and allowing police to impose conditions on protests based on their cumulative impact, including their cumulative impact on police budgets (recommendations 14 and 21). Recommendation 27 advocated for the Lord Chancellor and Lady Chief Justice to convene a process to examine the issue of juries acquitting defendants. While there is no evidence that this recommendation has stimulated Lammy to propose restricting jury trials, Lord Walney’s influence in the drafting of other anti-protest laws has been significant. Many of Lord Walney’s recommendations have in fact been included in the current Crime and Policing Bill by the Labour Government or have been proposed as amendments in the Lords. Indeed, while Lord Walney’s role was axed by Prime Minister Keir Starmer in February 2025, the Home Office declared that his work would “continue to inform our approach”.

Lord Delvin wrote in 1956 that the jury trial is an “insurance that the criminal law will conform to the ordinary man’s idea of what is fair and just”. Where the criminal law does not, jury equity provides a pressure valve against the effects of excessively harsh laws, a valve which is used extremely sparingly in our liberal democracy. Given it is a criminal offence for jurors to disclose their deliberations, it is difficult to point clearly to examples of jury equity in contemporary civil disobedience cases. Nevertheless, the flurry of recent acquittals for protest-related offences appears to show juries’ frustration with successive British governments’ desire to increasingly restrict the right to protest and raise the sanctions attached to protest-related offences. For the Government, restricting the jury’s ability to hear criminal cases involving civil disobedience will avoid the embarrassing spectacle of jury acquittals, and give their business donors and lobbyists security in knowing that those who object to their harmful practices will be swiftly convicted. 

Conclusion

In 2006, Lord Hoffmann in R v Jones presented what is now known as ‘Hoffmann’s Bargain’: if protesters behave with a sense of proportion and accept the penalties imposed by law, police and prosecutors on the other hand would behave with restraint, and magistrates would impose sentences taking into account the conscientious motives of the protesters [at 89]. Hoffmann’s Bargain now stands broken. British police arrest environmental protesters at three times the average global rate and are charged at three times the rate of “far-right agitators”. Sentences have sky-rocketed, with environmental protesters seeing the longest terms of imprisonment ever for any peaceful protest in British history. When environmental protesters broke their side of the bargain in not accepting the penalties, defences were successively stripped away. Now the last option for protesters, jury acquittal, seems likely to follow suit. Watch this space, however. A backlash against the jury reforms is currently engulfing the Labour government. In what would be Prime Minister Starmer’s fourteenth U-turn, the restriction of jury trial may just prove to be so unpopular it could be scrapped before it has even got off the ground. 

Nathan Whetton is a PhD candidate at the LSE Law School researching developments in protest law. 

(Suggested citation: N, Wheaton, ‘Civil Disobedience, Protest and the Jury Trial Reforms’, U.K. Const. L. Blog (21st January 2026) (available at https://ukconstitutionallaw.org/))