Negotiating Proximity: Expert Testimony and Collective Memory in the Trials of Environmental Activists in France and the United Kingdom

• Published date: 01 July 2013
• Author: Graeme Hayes
• DOI: http://doi.org/10.1111/lapo.12004
• Date: 01 July 2013

Negotiating Proximity: Expert Testimony and

Collective Memory in the Trials of

Environmental Activists in France

and the United Kingdom

GRAEME HAYES

This article analyzes the role of expert witness testimony in the trials of social

movement actors, discussing the trial of the “Kingsnorth Six” in Britain and the trials

of activists currently mobilising against airport construction at Notre Dame des

Landes in western France. Though the study of expert testimony has so far over-

whelmingly concentrated on fact-finding and admissibility, the cases here reveal the

importance of expert testimony not simply in terms of legal argument, but in “moral”

or political terms, as it reflects and constitutes movement cognitive praxis. In the

so-called climate change defence presented by the Kingsnorth Six, I argue that

expert testimony attained a “negotiation of proximity,” connecting different types of

contributory expertise to link the scales and registers of climate science with those of

everyday understanding and meaning. Expert testimony in the trials of activists in

France, however, whilst ostensibly able to develop similar bridging narratives, has

instead been used to construct resistance to the airport siting as already proximate,

material, and embedded. To explain this, I argue that attention to the symbolic, as

well as instrumental, functions of expert testimony reveals the crucial role that

collective memory plays in the construction of both knowledge and grievance in these

cases. Collective memory is both a constraint on and catalyst for mobilisation,

defining the boundaries of the sayable. Testimony in trials both reflects and repro-

duces these elements and is a vital explanatory tool for understanding the narrativi-

sation and communication of movement identities and objectives.

In September 2008, six Greenpeace activists were cleared by a jury at Maid-

stone Crown court in Kent, England, of having caused £30,000 worth of

criminal damage to E.On’s coal-fired power station at Kingsnorth, Hoo, also

in Kent, the previous year. In court, the activists accepted without contest the

prosecution case, made under the Criminal Damage Act 1971, that they had

caused material damage by entering the power station on October 8, 2007,

temporarily shutting it down, scaling the chimney, and painting the word

Gordon—after the then British prime minister, Gordon Brown—on the

Address correspondence to Graeme Hayes, Aston University—School of Languages and Social

Sciences, Aston Triangle, Birmingham B14 7EW, United Kingdom. Telephone: 01212043805;

E-mail: g.a.hayes@aston.ac.uk.

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LAW & POLICY, Vol. 35, No. 3, July 2013 ISSN 0265–8240

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary

outside of the smokestack, in protest at the government’s plans to authorise

a new generation of coal-fired plants. Under the provisions of the act,

however, the defence argued lawful excuse, on the basis that the action was

designed to prevent a greater harm and was not disproportionate. During the

eight-day trial, the defence presented testimony from five “expert” witnesses,

including, in the words of The Independent, the “world’s leading climate

scientist, Professor James Hansen of NASA, who had flown from America

to give evidence” (McCarthy 2008), arguing that the six should be relieved

of liability, as the power station itself causes greater damage to property

through its contribution to climate change. By majority verdict, the jury

agreed. According to one of the defendants, Emily Hall, “The jury heard

from the most distinguished climate scientist in the world. How could they

ignore his warnings and reject his leading scientific arguments?” (ibid.).

The Kingsnorth defence, along with other defences presented by environ-

mental activists in criminal trials for similar direct actions, raises intriguing

questions about the mobilisation of expert testimony and the social construc-

tion and communication of both knowledge and grievances. To date, the

study of expert witnesses—those who “explain or comment upon the event

to the jury or judge based on some specialized knowledge possessed by the

expert but not the jury or judge” (Champagne, Shuman, and Whitaker 1992,

5)—has overwhelmingly concentrated on the presentation and effects of

scientific evidence and clinical opinion testimony as an aid to the court’s

decision making and has done so in adversarial procedural settings (see, inter

alia, Krauss and Sales 2001; Jasanoff 1998; Kovera et al. 1997; Brekke and

Borgida 1988; for inquisitorial settings, see Vuille 2013). In this article, I

develop our understanding of expert testimony in criminal trials by focusing

on a related set of questions—primarily, those concerning its mobilisation by

social movement actors, its capacity to communicate different types of spe-

cialised knowledge to jury and magistrate, its integration within social claims

making, and its relationship to specific collective identities and memories.1

I discuss two cases—one from England and one from France. The first is

the Kingsnorth case mentioned above and is principally concerned with

climate change. The second case concerns three prosecutions of activists for

their actions against the Notre Dame des Landes airport, currently under

construction to the north of Nantes in western France. Intriguingly, though

climate change is at least potentially a central issue in this ongoing conflict,

it has so far played only a peripheral role and was barely mentioned by the

defence in the three prosecutions. Using these cases to illuminate each other,

I make four interrelated claims for the function of expert testimony in the

trials of activists: first, that such testimony is central not just to the “fact-

finding” functions of criminal trials, but to the social construction, negotia-

tion, and communication of grievances; second, that given the importance of

expert witness testimony in trials, such testimony can, by combining different

types of expertise, offer a potential driver for the public understanding of and

engagement with climate science (as we shall see in the Kingsnorth case);

Hayes NEGOTIATING PROXIMITY 209

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary