Justice is supposed to convert facts into decisions through rules that citizens can understand. Increasingly, however, the most contentious cases appear to be decided not simply by what happened, but by the social meaning assigned to the defendant, the victim and the cause. Conduct visible on video can be treated as secondary; motive, identity and political context do the decisive work. The resulting judgments may be technically defensible, yet still look arbitrary to anyone outside the professional culture that produced them.
Consider two recent cases on opposite sides of the Atlantic. In Minnesota, Shiloh Hendrix was filmed repeatedly using a racist slur during a confrontation in a public park. A jury acquitted her of disorderly conduct in relation to the child at whom the slur was directed, but convicted her over her exchange with the man filming her. She received probation, community service and a fine. Her lawyer has said the conviction will be appealed. The legal theory was not that uttering the word was itself unlawful, but that her words and conduct could fall within disorderly-conduct rules constrained by the narrow American doctrine of “fighting words”.
The difficulty is visible before one reaches the doctrine. The video showed ugly and socially forbidden speech, but the prosecution still had to establish a crime rather than a breach of etiquette. The incident had become nationally notorious, and Hendrix had become a symbolic defendant rather than merely one participant in an unpleasant argument. A jury was being asked to separate constitutional law from racial disgust in a case where an acquittal could easily be understood as social approval. The split verdict may reflect a careful distinction between two encounters. It may also have supplied a compromise: rejecting the proposition that the slur alone was criminal while ensuring that the defendant did not leave court entirely unpunished. No juror has publicly explained the reasoning.
Now consider the Palestine Action raid on an Elbit Systems facility in Filton. The physical conduct was extensively recorded. Activists forced entry and caused more than £1mn of damage using sledgehammers and crowbars. A police officer was seriously injured. At the first trial, all six defendants were acquitted of aggravated burglary and the jury could not agree on criminal-damage charges. At a retrial, four were convicted of criminal damage, while two were acquitted; one defendant was also convicted of causing grievous bodily harm without intent. The four convicted activists later received substantial prison sentences.
There were legitimate legal distinctions. Video proving destruction does not automatically prove each element of aggravated burglary, violent disorder or a particular level of intent. Different defendants may have played different roles. Yet the broader public impression is difficult to dismiss. When filmed destruction produces acquittals and hung juries, while non-violent but socially condemned speech produces a conviction, many observers will conclude that the system is applying an ideological discount. The activists’ belief that they were preventing greater harm becomes central to the account; the woman’s anger and racial hostility become central to hers. Approved motives mitigate visible action. Disapproved motives aggravate words.
Criminal law has always examined the mind. An accident is not the same as a deliberate act; an impulsive assault is not identical to a killing planned over several days. Intention, knowledge and recklessness are indispensable to culpability. But intention answers what the defendant meant to do. Motive answers why. The two are increasingly blurred in political cases. A moral or political purpose begins to operate not merely at sentencing but as an implicit licence, while a disfavoured belief can transform ambiguous, silent or verbal behaviour into actionable harm.
The law on abortion-clinic safe-access zones illustrates the latter movement. Since October 2024, conduct within 150 metres of clinics in England and Wales can be criminal where it intentionally or recklessly influences access to abortion services, obstructs access, or causes harassment, alarm or distress. Government and prosecutorial guidance expressly recognise that silent prayer can fall within the offence, depending on purpose and context; an affected person need not actually have been influenced or distressed.
The act may therefore be standing silently. Its criminal character is constructed from location, known belief and inferred intention. By contrast, in HM Solicitor General v Warner, the High Court declined to permit contempt proceedings against Trudi Warner, who stood silently outside a crown court holding a placard telling jurors that they had an absolute right to acquit according to conscience. The court emphasised that she did not accost, obstruct or threaten anyone and that the sign expressed a recognised constitutional principle.
The cases arise under different laws and protect different institutional interests. That is the lawyer’s answer, and it is not frivolous. But it does not dispose of the legitimacy question. One silent act is interpreted as protected constitutional expression even though it is directed towards prospective jurors outside a live trial. Another can be interpreted as unlawful influence because the authorities infer a prohibited purpose from silent presence. To a non-lawyer, the determining variable appears to be less the conduct than the cause.
The Warner judgment also exposed an older contradiction concerning juries. A jury has the practical power to acquit despite the evidence and the judge’s directions. A judge may not direct a guilty verdict, and an acquittal will ordinarily stand even when it appears irrational. This is sometimes called jury equity or jury nullification. But jurors are sworn to apply the evidence and the law as directed, and lawyers are not generally permitted to encourage them to disregard those directions. The system preserves an unreviewable power while resisting any attempt to make jurors conscious of how it can be used.
That contradiction is now being tested in proceedings involving Rajiv Menon KC. During his closing speech for a Palestine Action defendant, Menon referred to the Old Bailey plaque commemorating “the right of juries to give their verdict according to their convictions”. The allegation is not simply that he quoted twelve historical words. It is that, in context and after particular rulings had limited the available defence arguments, he invited the jury to disregard the judge’s directions and suggested that the defendants had been treated unfairly. A court has found that there is a case requiring determination, although Menon disputes the allegations and has pursued jurisdictional challenges.
The legal boundary is intelligible. A member of the public may state a general constitutional proposition outside court; an advocate in a live trial cannot tell a particular jury to ignore rulings of law. Yet here too the public sees a less comfortable pattern. Juries may independently produce politically sympathetic acquittals that cannot be reviewed. An organised campaign may publicise the constitutional power underlying those acquittals. But a defence barrister risks contempt if he articulates the same idea inside the courtroom where it might actually affect the verdict. Jury independence is celebrated historically, tolerated secretly and disciplined when made operational.
This is not an argument that every controversial acquittal is corrupt or every conviction of offensive conduct is unconstitutional. Nor does it require the belief that judges or jurors consciously favour particular political movements. The deeper problem is structural. Modern offences and defences increasingly rely on concepts such as harm, influence, distress, reasonable belief, necessity and context. Those concepts confer discretion. Discretion inevitably incorporates the learned assumptions of prosecutors, judges, lawyers and jurors about which people are vulnerable, which motives are respectable and which forms of disorder are dangerous.
The resulting process can turn law into an exercise in social classification. A recorded act enters the courtroom alongside a package of contextual signals: the defendant’s race, ideology, status and cause; the victim’s perceived vulnerability; the level of media outrage; the moral vocabulary through which institutions have learned to describe the event. The formal verdict may be guilty or not guilty, protected expression or prohibited influence. But the transformation between facts and outcome is increasingly opaque. Two broadly comparable acts can acquire radically different legal values because one is coded as resistance and the other as hatred.
This explains why professional assurances about technical distinctions often fail to reassure. Lawyers see separate statutory elements and procedural histories. The public sees a woman prosecuted after a viral verbal confrontation, activists initially acquitted despite filmed destruction, a silent anti-abortion presence treated as potential criminal influence, and a silent jury-rights placard protected. Each case can be distinguished. Collectively they suggest that the system is becoming more interested in the approved interpretation of conduct than in conduct itself.
Justice must not only be done but be seen to be done. That familiar principle is sometimes treated as a matter of presentation, as though courts need only explain themselves more effectively. It is more demanding than that. Legal outcomes must emerge from rules that remain recognisable when the identities and causes are reversed. A useful test is whether the same reasoning would be accepted if a rightwing group damaged a politically disfavoured business, if an anti-Palestinian activist invoked conscience, if a climate campaigner stood silently in a restricted zone, or if an offensive slur were directed at a socially unfashionable target. Where confidence in the outcome changes with the political substitution, the rule is not visibly neutral.
The answer is not to remove intention from criminal law or abolish jury independence. It is to restore a clearer hierarchy. Physical acts and defined legal elements should come first. Intention should distinguish deliberate conduct from accident. Motive may explain the act and affect sentence, but should rarely erase liability. Speech should not become criminal merely because it violates an intense social taboo. Silent conduct should not be converted into an offence through ideological inference unless the state can demonstrate a concrete and consistently defined harm. Jury equity should either be openly acknowledged as part of the constitutional settlement or more honestly confined; preserving it as a secret power while threatening those who describe it is difficult to defend.
A legal system can survive occasional unpopular judgments. It cannot indefinitely survive the impression that similar conduct is processed differently according to the moral prestige of the participants. Once citizens believe that credentials and institutional fluency can transform obvious wrongdoing into virtue, while social disapproval can transform words or silence into crime, the courts cease to appear as neutral arbiters. They begin to look like institutions that certify the prevailing distribution of moral status.