Ahava protesters and a point of law

By Jonathan Goldberg, May 19, 2011

Ben from Hove writes: As an ordinary lay person, I am baffled by the fact that well-organised pro-Palestinian protesters were able to close down the Ahava shop in Covent Garden by invading it and chaining themselves to a specially adapted concrete tube, and that a similar group burgled and trashed and temporarily shut down an entire factory near where I live last year. I read that both sets of protesters claimed legal justification in court as a defence to their actions. In a sane world, how can there be any such defence to such conduct?

Ben, I share your frustration, but let me explain how such people can mount a defence in law.

A famous appeal judge once said in an old reported case: "I am sure it is common sense. It is probably the law also for that reason".

I think he would be turning in his grave if he could see how activists have exploited (and I think perverted) ancient and respectable common law defences in what is a sophisticated strategy of "lawfare" aimed against Israel. In this they are often represented at public expense by able and highly motivated lawyers who share similar political views.

The English common law has for centuries recognised the following defences to criminal charges. It is a good defence (even to murder) if a person uses such force as is reasonable in the prevention of crime. And a person may do whatever is reasonably necessary in all the circumstances to prevent serious harm being done to the person or property of himself or another.

It is the magistrate or jury judging objectively who must decide whether the defendant has acted reasonably. Thus ,the homeowner who shoots the fleeing burglar in the back once the danger has passed, or the shopkeeper who breaks the arm of the schoolboy stealing sweets, ought not to succeed. However, all depends at the end of the day on the good sense of the tribunal. In this age of demonisation of Israel, this is not always forthcoming.

Moreover, where the offence of criminal damage is concerned, as was charged at Hove, Parliament in its wisdom has afforded a defence by statute, namely Section 5 of the Criminal Damage Act 1971, which in my opinion is extraordinarily over-generous. Such protesters are given a defence by simply claiming that they honestly believed their actions were protecting property belonging to others which was in imminent need of protection, and were reasonable in all the circumstances. There is no objective element required. It matters only whether they themselves honestly believed it. The prosecution must prove beyond reasonable doubt that they did not honestly believe it, for a conviction. It matters not if such beliefs were absurd.

This defence was surely intended for genuine cases such as a man who demolishes his neighbour's house which is on fire in order to save his own. It is now being abused for purposes which Parliament cannot have intended. It was successfully employed at Hove to justify trashing the factory, on the basis that the components were believed (perhaps wrongly) to be going into warplanes which were destroying the homes of Palestinians in Gaza during Operation Cast Lead. All this was enthusiastically endorsed by Judge Bathurst-Norman in the notorious summing-up which later earned him a formal judicial reprimand.

More recently, the Ahava protesters claimed they were entitled to invade the shop because some of its products are made in a kibbutz situated in the West Bank on occupied Palestinian land. Thus, the products were mislabelled as "Made in Israel". They therefore claimed they were there to prevent crime, as trivial as trades descriptions on the one hand and as serious as war crimes on the other. District Judge Baker convicted them. Worryingly, he expressed his "considerable hesitancy" and punished them with a small fine.

Common sense seems often to go out of the window where anti-Israel protest is in play. Animal-rights protesters who disrupt animal testing laboratories, or the protesters against fox hunting, or globalisation, or the Iraq War, let alone the respectable ladies in the '80s who regularly disrupted the Greenham Common Air Base, or the CND sit-down protestors of the '60s, did not receive the indulgence now afforded to such Palestinian sympathisers by the police, the Crown Prosecution Service and the courts, it seems to me.

It is high time for Section 5 to be tightened, and for the courts to heed the warnings of Lord Hoffmann in a case in the House of Lords in 2006. He said that politically motivated vigilantism has no place in a civilised and democratic society, and that the criminal courts should refuse to countenance "the new phenomenon of litigation as the continuation of protest by other means".

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC is a leading London barrister. Visit www.goldbergqc.com

Last updated: 10:43am, July 13 2011