An English court yesterday spared 18 climate activists from jail sentences after a jury found them guilty of conspiracy to commit trespass in December of last year.

The convictions stemmed from a pre-emptive police strike against over one hundred climate campaigners in the city of Nottingham in April of 2009. The 18 activists admitted planning to shut down the nearby Ratcliffe-on-Soar power station, but denied the charges they faced, using a defence of “necessity”. Considered the biggest pre-emptive raid on environmental campaigners in UK history, the controversial police operation is thought to have relied upon at least one informant.

The activists’ defence of necessity was based on the existence of a lawful excuse, under English law, to actions taken in order to protect “property” where an individual believes that it is in immediate need of protection and where the actions are reasonable with regard to all circumstances at hand.

Greenpeace UK had previously successfully used the defence to convince a jury not to convict 6 Greenpeace activists (dubbed the “Kingsnorth 6”) for a peaceful direct action which in October 2007 temporarily shut down the Kingsnorth power station, a dual-fired coal and oil facility in Kent, England. Lawyers for Greenpeace UK argued at trial that their actions were intended to safeguard property around the world in immediate need of protection from climate change, including property belonging to the Inuit people of the Arctic, northern Alaska, eastern Greenland and Canada.

Although defendants from the masse round-up in Nottingham were ultimately unsuccessful with this defence at trial, a silver lining came in the form of “impossibly lenient” sentences, in the words of presiding judge Jonathan Teare, ranging from 18 months’ conditional discharge to 90 hours’ unpaid work. Addressing the activists, judge Teare was unequivocal: “You are all decent men and women with a genuine concern for others, and in particular for the survival of planet Earth in something resembling its present form… I have no doubt that each of you acted with the highest possible motives. And that is an extremely important consideration.”

Similarly, in December 2010, Australian Magistrate Linda Bradford-Morgan declined to record convictions against four Greenpeace activists who plead guilty to “engaging in high-risk unregulated activity” while protesting ANZ bank, viewed as the dirtiest bank in Australia for its role in financing the coal industry. Trish Harrup, Climate Campaign Team Leader at Greenpeace Australia Pacific, quite rightly described the judge’s decision as “a recognition of the right to protest on this vital issue of climate change.”

Alas, we have not seen a similar approach amongst the Canadian judiciary to date.

Sticking with Canada, the defence of necessity under domestic criminal law requires three elements: (1) the requirement of imminent peril – climate change poses a real and present danger. (2) No reasonable legal alternative to the course of action – Greenpeace and other campaigning organizations can issue press releases until we are blue in the face but the hard reality is that governments throughout the world have individually and collectively failed to take the steps needed to prevent climate change. Likewise, the drivers of climate change (such as the oil and coal industries) can spend colossal figures on media blitzes to drown out rational voices calling for climate justice and the prevention of catastrophic climate change. (3) Proportionality between the harm inflicted and the harm avoided – unfurling a banner during a peaceful protest is certainly proportionately less harmful than global climate chaos!

It seems to me that the heart of the legal issue is this: if we accept that climate change is occurring, then proportionate (i.e. peaceful) direct action to prevent its occurrence is not only justifiable, defensible and rational, it is legally necessary in the strictest of terms. Of course, if you still deny that climate change is occurring…

Shane Moffatt is a legal and communications assistant with Greenpeace Canada, based in Toronto.