Sometimes you have to break the law to change it?

Photo by John Cameron on Unsplash

A question I have been pondering quite a lot recently amounts to the following:

Is it ever ok or acceptable to break the law in order to change it?’

All sorts of fanatics and the downright criminal will often portray their behaviour as serving a higher purpose when what they mean is that it is entirely self-serving on their part.

The question is extremely contentious (not to say highly subjective), but not as off the wall or leftfield as you might first think.

Why?

Current events that’s why. Pressure groups like Extinction Rebellion, with its programme of environmental activism, are sincerely committed in their beliefs and they have the weight of scientific evidence on their side regarding the threat of climate change. However, it is highly debatable to what extent the public will support their tactics which involve a range of public order offences e.g. blocking major roads and disrupting the transport system. The activists argue that climate change is such an existential threat that any and all means are necessary to give the wider public the necessary wake up call which will swing the pendulum firmly in favour of more sustainable and environmentally friendly approaches to the way in which society is organised.

Taking the law into your own hands?

We have been here before, in fairly recent times, with groups such as the Campaign for Nuclear Disarmament (CND); animal rights activists; and campaigners against GM food taking direct (and often unlawful) action against the objects of their ire.

A case I remember very well where this sort of direct action occurred was Lord Advocate’s Reference Number 1 of 2000 [2001] Scot HC 15 (30th March, 2001).

In this case, three anti-nuclear weapons protesters (part of the Ploughshares movement) were accused of illegal entry to a ship (‘Maytime’) which was anchored on Loch Goil in June 1999. The ship had a support role in relation to Royal Navy submarines carrying Trident missiles.

The protesters faced criminal damage and theft charges in relation to equipment which was on the ship. In their defence, the protesters claimed that their actions were justified because they were attempting to draw attention to the British Government’s continued possession of nuclear weapons – a situation which the protesters argued was a crime under international law. Now, there is some merit to this argument as the American led invasion of Iraq in March 2003 was based on the premise that the then Iraqi regime of Saddam Hussein was in possession of weapons of mass destruction (which were never found and doubtless never existed).

At the trial at Greenock Sheriff Court, Sheriff, Margaret Gimblet, directed the jury to return a not guilty verdict in relation to several of the charges. As for the remainder of the charges, the jury found the protesters not guilty. The Sheriff Gimblet was extensively criticised for the way in she had directed the jury to return not guilty verdicts. It was felt that this judgement would give the green light to other peace protesters to carry out similar acts as part of their ongoing nuclear disarmament campaign.

The Lord Advocate, therefore, felt it necessary to refer the case to the High Court for clarification where it was held that the protesters were not justified in their actions.

A link to the opinion of the Appeal Court can be found below:

http://tridentploughshares.org/lar-opinion-of-the-court/

The three Loch Goil anti-nuclear protesters had some recent inspiration for their actions from their colleagues. In January 1996, four protestors (part of the Ploughshares group) had broken into a British Aerospace facility and destroyed the controls of a Hawk Jet which was bound for Indonesia. The Indonesians, at this time, ruled East Timor (now an independent state) and were engaged in a bitter armed struggle with East Timor liberation groups.

The protestors claimed that the jet would almost certainly have been used by the Indonesian military as part of their operations in East Timor. By wrecking the jet’s controls with a sledgehammer, the protestors were committing an act of criminal damage (worth an estimated £1.5 million) undoubtedly, but they had done so in order to save lives. They argued that their actions were justified in terms of the UK Genocide Act 1969 (since repealed).

The four women had deliberately filmed the incident and waited at the scene of the crime to be apprehended. You would be forgiven for thinking open and shut case …

… The jury at Liverpool Crown Court acquitted the four protestors of all charges in July 1996 finding that their actions had been reasonable in terms of the Genocide Act.

A video made by the Ploughshares Group about the incident can be found below:

A link to an article The Independent’s website about the conclusion of the protestors’ trial on can be found below:

https://www.independent.co.uk/news/pounds-15m-hawk-attack-women-freed-1331285.html

History almost repeating itself

Interestingly, almost 21 years later, Sam Walton, a Quaker pacifist was suspected of attempting to disarm a Typhoon fighter jet at a British Aerospace facility which he believed was for the Saudi Arabian Air Force. Walton’s argument was, again, very similar to previous examples of direct action: he was trying to save lives. He argued that there was a high probability that the jet would be used in Saudi military operations in the vicious conflict in the neighbouring country of Yemen.

A link to an article in The Independent about Sam Walton can be found below:

https://www.independent.co.uk/news/uk/home-news/british-quaker-activist-sam-walton-pacifist-disarm-saudi-arabia-fighter-jet-bae-uk-yemen-a7555246.html

Historical perspectives

Breaking the law to change it has a long pedigree and the current debate about the tactics of Extinction Rebellion inspired me to review historical situations where people had broken the prevailing law of the land only later to be held up as champions of freedom and progress.

In the last few days, I finally got around to viewing a German film called 13 Minutes (released a few years ago) which was about an attempt on the life of Adolf Hitler on 8 November 1939 in Munich. No spoilers intended (or needed), but the plot failed.

Hitler left the Munich Beer Hall 13 minutes before a bomb, planted in the building by Georg Elser, detonated. People were killed, but not Hitler and the question has persisted as to what would have happened if the assassination had succeeded?

In my humble opinion, I don’t think it would really have mattered as there were plenty of fanatics within the Nazi regime (e.g. Heinrich Himmler and Reinhard Heydrich) who were more than capable of replacing Hitler and furthering his goals.

I did know that the would be assassin, Elser, had been caught in the aftermath of his failed attempt. What I didn’t know was that Elser survived as a special prisoner in Dachau Concentration Camp until April 1945 when he was murdered (he had, in fact, never been tried by the Nazis). Ironically, he outlived one of his interrogators, SS Police General, Artur Nebe, who was executed in March 1945 for involvement in the Plot to assassinate Hitler in July of the previous year.

Clearly, by the prevailing laws of the Third Reich, Elser was a traitor as he had attempted to kill the then German Head of State. History, however, has been much kinder to Elser and he is now viewed as an anti-Nazi resistance fighter of great courage – not an opportunist as Artur Nebe clearly was.

Chartists and Suffragettes

This led me to think about other situations in the past where people fought for their beliefs by breaking the law e.g. the Chartists in the 19th Century who fought for greater democracy in the UK; and the Suffragettes in the late 19th and early 20th Centuries who campaigned for women to be given the right to vote. Nowadays, the Suffragettes particularly are held up as an example of a group of highly principled and determined people who wanted to overcome a glaring injustice.

It’s often forgotten that the Suffragettes moved quickly from peaceful protests to downright terrorist acts e.g. in 1913, the bombing of a house being built for Lloyd George MP, then Chancellor of the Exchequer (or UK Finance Minister). This was followed by bombs being planted at the Bank of England and in St. Paul’s Cathedral.

According to the historian Lucy Worsley, in 1913 alone, there were 168 arson attempts and bomb attacks carried out by Suffragettes across Britain and Ireland. Worsley estimates that the cost of this damage was £56 million in today’s prices. By February 1914, 1,241 prison sentences had been served by Suffragettes and 165 women who had been on hunger strike had been forcibly fed while in prison.

Did these acts of violence lead to votes for women? This is very contentious and historians, such as Worsley, point more to the transformative impact of World War I as the real catalyst for social (and legal) change. How so? Very simply, the need to recruit women into areas of the economy which previously had been the almost exclusive preserve of men (who, of course, were away at the Front fighting the War).

Conclusion

So, I suppose the answer to my original question is it ever acceptable to break the law to change it depends on which side of history you end up: whether you’re ultimately a winner or a loser.

It also depends on the methods used to achieve legal change. Figures such as Mahatma Gandhi who worked towards the end of British rule in India are held up as exemplars because they used peaceful methods. Other figures such as Eamon de Valera and Michael Collins of the IRA are still, to this day, regarded as extremely controversial in their pursuit of armed struggle against the British Empire in order to obtain independence for what would eventually become the Republic of Ireland.

In 2016, the centenary of the Easter Rising was marked by the Irish Government in Dublin. The Rising is regarded as one of the corner stones of the modern Irish Republic, but how do you mark or ‘celebrate’ what was undoubtedly a violent event? With great sensitivity is the answer and the Irish Government was widely praised for unveiling a memorial which listed everyone (including Irish Republicans and British Army personnel) who lost their lives as a result of the events of Easter Week 1916.

This image has an empty alt attribute; its file name is 161587273_1462271605.jpg

As for Extinction Rebellion? Well, history will be the judge …

Copyright Seán J Crossan, 11 March 2020

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sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. I am a graduate and postgraduate of the Universities of Dundee, London and Strathclyde. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult a suitably qualified Scottish solicitor who will be able to provide you with the support that you require.

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