Illustration: Matt Kenyon/The Guardian View image in fullscreen Illustration: Matt Kenyon/The Guardian Opinion Law You may not sympathise with the Elbit four’s methods. But you should be outraged by their treatment under the law Geoffrey Robertson The jurors who found the pro-Palestine activists guilty of criminal damage had no idea their verdict would be treated as a verdict on terrorism
Geoffrey Robertson KC is founding head of Doughty Street Chambers
I n a London court in 1670, a judge, livid with the jury, locked them away for two days without food, water or even a chamber pot. The jury’s offence? Defying the judge’s direction to convict the Quaker William Penn – the future founder of Pennsylvania – charged with preaching sedition in the City of London. The foreman, Edward Bushell, would not yield and, when the matter reached the chief justice of England, he ruled that no juror could be punished for their refusal to convict, entitling a jury to decide according to its conscience, whatever the bench directed. A plaque honours Bushell at the Old Bailey, so jurors on their way inside may contemplate the man who secured their right to acquit.
The legal principle has held for three and a half centuries and, in my 50 years of practice, I have witnessed many juries bring back “sympathy verdicts”, that is, acquittals , because they think a defendant has been oppressively or unfairly prosecuted. But they are not usually reminded by barristers of their right to do so because of the profession’s concern that they should not be urging juries to lay aside the oath they took to decide according to the evidence.
This right sits at the centre of the case of the Elbit four who last week were sentenced to more than 22 years combined, for their part in a direct action protest. Leona Kamio, 30, a nursery teacher, Samuel Corner, 23, and Fatema Rajwani, 21, both students, and Charlotte Head, 30, a domestic abuse caseworker, broke into a factory owned by Elbit Systems, an Israeli company that manufactures drones. They are among more than two dozen people – “ the Filton 25 ” – being tried for breaking into an arms factory in Filton near Bristol, or in connection with the act. They are now in the process of going to court, spread over four trials .
The first group of defendants underwent not one, but two trials. At their first, they faced several charges, the gravest being aggravated burglary. Their leading counsel, Rajiv Menon KC, took to the floor to remind the jury of their historical right to acquit, and invited them to weigh the use to which the drones were being put. The judge, Mr Justice Johnson, referred Menon to the high court to be tried for the crime of contempt of court for breaching his order not to mention the jury’s right to acquit. The jury, however, went on to acquit the defendants of aggravated burglary. But they could not come to a majority decision on any of the remaining charges.
The prosecution decided that the defendants must face a retrial . This proceeded with the same Mr Justice Johnson presiding on the charges the first jury could not resolve: criminal damage, an offence ordinarily met with a fine or a sentence of 18 months or so. At this point, the four had already spent more than 18 months in pretrial detention. The second jury convicted the Elbit four of criminal damage .
One defendant was also convicted of grievous bodily harm without intent, having injured a female police officer with a sledgehammer. He said, and the j…