Is an Attorney General’s Reference Following the Acquittal in the Colston Trial Merited?

Acquittal in the Colston Trial

On the 5th of January, at Bristol Crown Court, Jake Skuse, Rhian Graham, Milo Ponsford and Sage Willoughby, were acquitted by a jury after being charged with Criminal Damage contrary to s1(1) of the Criminal Damage Act 1971. The defendants had taken part in BLM protests on the 7th of June 2020 and were involved in the toppling of the statue of Edward Colston. The statue had eventually been thrown into the harbour.

Colston is a controversial character. Whilst he had contributed much in charity to Bristol, and was historically a celebrated figure in the city for his philanthropy, he had also been a brutal slave-trader, who transported an estimated 80,000 African men, women and children to the West Indies and Americas. His legacy in Bristol was therefore a matter of significant debate, especially in the aftermath of George Floyd’s death during police custody in the US, which had provoked much discussion regarding race and justice.

There was a strong reaction to the acquittal. One side believed that the acquittal was perverse, influenced by the politics of the matter rather than the law. The potential for juries to give verdicts contrary to the law and evidence was criticised. This belief that politics had entered the trial was bolstered by the fact that the defence counsel for Sage Willoughby, Liam Walker QC, had said in his closing speech to the jury that they should be on the “right side of history” when delivering their verdicts. The other side believed that the acquittal should be accepted and applauded, many agreeing with the protestors that it was justified to have toppled Colston’s statue, given the part he played in the 18th Century slave trade, and the fact that it had not been removed, despite the strong feeling in opposition to it.

Suella Braverman MP, the Attorney General, then intervened on the issue. She tweeted that, whilst the verdict should be respected and the jury system defended, she was considering whether to bring a reference to the Court of Appeal so that the law could be clarified.

Braverman received much criticism for this. She was accused by Labour MP Emily Thornberry of “playing political games” and by implication failing to uphold “democracy, the rule of law and the sanctity of the jury system”.

Karl Turner set out a rather patronising thread explaining the difference between court judgments and the findings of fact by juries, on the assumption that Braverman was attacking the verdict, rather than raising points of law to consider.

Mark George QC, a lawyer, and not a politician, called Braverman an “idiot” and said that there was “no confusion over the verdict” and that it was just a pile-on by “right-wing bigots”.

Daphne Romney QC said that Braverman had “no understanding of her role” and later added that “The Jury chose not to convict. End of.”

Philip Marshall QC said that the “law is clear, there is no confusion, and it is disingenuous to suggest there is” and that the Attorney General’s job is “not to play party politics”.

This is but a short selection of the excoriating criticism that was visited upon the Attorney General.

The general claim was that the Attorney General was using her political position to try to upset the verdict of the jury, and that there was no point of law that could properly be considered, since, according to Simon Spence QC, quoted in the Guardian, criminal damage is a “very straightforward offence” on which the judge can direct juries.

The truth was, however, that there were points of law that were raised in the trial which were novel. Doughty Street Chambers, where Willoughby’s defence counsel Liam Walker QC is a tenant, released a short blog after the acquittal, celebrating the “new and complex legal arguments” which had been staged.

Liam had, it said,

successfully submitted that ‘prevention of crime’ could be relied upon as a defence and that the jury could consider whether the presence of the statue itself constituted an offence under section 5 of the Public Order Act 1986.

Liam also identified that the jury should consider if the statue constituted an ‘indecent display’ under Section 1 of the, more obscure, Indecent Displays (Control) Act 1981.

In addition, following the case of DPP v Ziegler [2021] UKSC 23, the trial is believed to be the first trial in which a jury was required to consider whether a conviction of the defendants would have been a disproportionate infringement of the defendants’ rights under Articles 9, 10 and 11 of the Human Rights Act 1998.

This was, then, by admission of the defence counsel’s Chambers, not straightforward law on which the jury would be instructed at all. At trial, new points which had not been fully considered by the higher courts were presented to the judge and left to the jury.

The Attorney General, when she challenges this, is not attacking the “sanctity of the jury system” as Emily Thornberry would have it, and a verdict is not “end of” when it comes to discussion of the law. The Attorney General, under s36 of the Criminal Justice Act 1972, may make a reference to the Court of Appeal on a point of law after a defendant on indictment has been acquitted. In doing so, she is not attempting to upset the verdict, but offering clarity on the law. A number of these references have been made through the years, including one, Attorney General’s Reference (No 2 of 1992) [1993] 3 WLR 982, which established that “driving without awareness” cannot be said to be automatism, and the defence should not be left to juries.

In Attorney General’s Reference (No 1 of 1975) [1975] QB 773 Widgery LCJ said the following:

It is of course now well known that the purpose of section 36 of the Act of 1972 is to enable the Attorney-General to obtain a ruling on a point of law which is not capable of being investigated by the normal appellate procedure because the case in which the point of law arose resulted in an acquittal of the accused. It would be a mistake to think, and we hope people will not think, that references by the Attorney-General are confined to cases where very heavy questions of law arise and that they should not be used in other cases. On the contrary, we hope to see this procedure used extensively for short but important points which require a quick ruling of this court before a potentially false decision of law has too wide a circulation in the courts.

Although a verdict in the Crown Court does not, of course, set precedent in a formal way, mistakes as to law should be corrected, so that they do not, as Widgery LCJ puts it, have “too wide a circulation in the courts”. There is no doubt that barristers and judges have seen heard of the Colston trial and considered whether they should incorporate the novel points of law in the future.

There are at least two points that were raised at the trial which should merit an Attorney General’s Reference. The first is the proportionality assessment which was left to the jury. The second is whether the judge had properly left the question of prevention of crime to the jury.

Disproportionate Infringement of Rights

Quite unusually, the directions of the judge, HHJ Peter Blair QC, have been made public. The barrister Matthew Scott shared the directions on his blog.

We can see from the directions that the question “Would convicting D be a disproportionate interference with his/her rights?” was put to the jury. The Doughty Street blog tells us that the Colston trial is believed to be the first jury trial where disproportionate interference of rights was considered by the jury.

The Doughty Street blog also tell us that disproportionate interference was put to the jury on the basis of the recently decided Supreme Court case DPP v Ziegler [2021] UKSC 23.

It is very arguable, however, that Ziegler probably does not apply to all offences where the defendant claims that his rights under Articles 9 (freedom of thought, belief and religion), 10 (freedom of expression) and 11 (freedom of assembly and association) of the European Convention on Human Rights (ECHR), as incorporated here in the Human Rights Act 1998, are being interfered with.

Ziegler was decided on the basis that some obstruction as part of protest is lawful and that some is unlawful. The defendants had been charged under s137 of the Highways Act 1980 after they had disrupted the Defence and Security International arms fair being held at the Excel Centre by blocking a dual carriageway. The Supreme Court held that, even when the actions of protesters were more than de minimis, the factfinder should make a proportionality assessment, taking into account Articles 10 and 11 of the ECHR as part of the “lawful excuse” statutory defence. This means that the factfinder should undertake a balancing exercise to determine whether a conviction would be a disproportionate interference with the rights of the defendant to free expression and to assembly and association. This is necessarily fact-sensitive. If there is a disproportionate interference, an acquittal would be appropriate.

Does this apply to cases which do not directly involve assembly and related matters, however?

With the case of Ziegler, the facts turned on the particular offence. Blocking the highway is an offence which naturally exercises Articles 10 and 11. Sometimes the question of whether an offence was committed will have to be weighed against Arts 10 and 11. The statutory defence will be dependent on the duration of the obstruction, the nature of the obstruction et cetera, as outlined in City of London Corpn v Samede [2012] PTSR 1624:

As the Judge recognised, the answer to the question which he identified at the start of his judgment is inevitably fact-sensitive, and will normally depend on a number of factors. In our view, those factors include (but are not limited to) the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public.

Ziegler explores the issue at para 16:

In the present case the Divisional Court explained how section 137(1) of the 1980 Act can be interpreted compatibly with the rights in articles 10 and 11 ECHR in cases where, as was common ground in this case, the availability of the statutory defence depends on the proportionality assessment to be made.

This appears to be specifically directed at s137 of the 1980 Act. The availability of “the statutory defence depends on the proportionality assessment to be made” in this particular offence and “as was common ground in this case”. It does not follow from this that all offences, or indeed all s137 cases, where Articles 10 and 11 are claimed to be infringed will require such an assessment as part of a lawful excuse.

In DPP v Jones [1999] UKHL 5, Lord Irvine, the then Lord Chancellor, said the following

Its conclusion is that all peaceful assemblies on the highway are tortious, whilst seeking to justify that state of affairs by observing that peaceful assemblies are in practice usually tolerated. In my judgment it is none to the point that restrictions on the exercise of the right of freedom of assembly may under Article 11 be justified where necessary for the protection of the rights and freedoms of others. If the Divisional Court were correct, and an assembly on the public highway always trespassory, then there is not even a prima facie right to assembly on the public highway in our law. Unless the common law recognises that assembly on the public highway may be lawful, the right contained in Article 11(1) of the Convention is denied. Of course the right may be subject to restrictions (for example, the requirements that user of the highway for purposes of assembly must be reasonable and non-obstructive, and must not contravene the criminal law of wilful obstruction of the highway). But in my judgment our law will not comply with the Convention unless its starting-point is that assembly on the highway will not necessarily be unlawful. I reject an approach which entails that such an assembly will always be tortious and therefore unlawful. The fact that the letter of the law may not in practice always be invoked is irrelevant: mere toleration does not secure a fundamental right. Thus, if necessary, I would invoke Article 11 to clarify or develop the common law in the terms which I have held it to be; but for the reasons I have given I do not find it necessary to do so. I would therefore allow the appeal.

This case was on the subject of trespassory assembly under s14B(2) of the Public Order Act 1986, and was cited in Samede. Lord Irvine makes the point that assemblies will not necessarily be unlawful and that, if the common law does not recognise that it may be lawful, Article 11 would be denied.

DPP v Jones [1999] was also cited by the then Mr Justice Goldring in Scott v Mid-South Essex Justices [2004] EWHC 1001 (Admin) and applied to s137 of the Highways Act 1980:

It seems to me that Mr Litton is right. The decision of the majority in the House of Lords in Jones effectively did amount to a change in the law. What might have amounted to an offence under section 137 before Jones might not now. Whether in any given case a particular user of the highway may be reasonable is essentially a matter of fact and degree for the Court. It is only if the Court’s decision in that regard is perverse that this Court will intervene. Here, it comes to this. It is only if the magistrates must inevitably have been sure on the basis of the facts they found that the user was not reasonable that this appeal can succeed. I put it in that way, of course, because this is a criminal prosecution in which all the components of the offence must be proved by the prosecution.

From this, it would appear that the “matter of fact and degree” or, put otherwise, the fact-sensitive analysis of whether there is disproportionate interference, applies to offences involving assembly and disruption to the highway.

The cases Ziegler cites from the European Court of Human Rights (ECtHR) all involve protest which is obstructive. Kudrevičius v Lithuania involved the obstruction of roads in Lithuania; Primov v Russia involved restrictions on assembly; Hashman and Harrup v United Kingdom did not concern the blocking of a public road, but it did involve obstructing a fox hunt; and Steel v United Kingdom involved obstruction in relation to a protest at a grouse shoot. Accordingly, it cannot be said that a lawful excuse would need a consideration of “fact and degree” for all offences which contain a statutory lawful excuse.

One reason why this is most probably not applicable to criminal damage is that it is less open to a fact-sensitive analysis on disproportionate interference in order to be compliant with Convention Rights.

In Handzhiyski v Bulgaria, the European Court of Human Rights (ECtHR) said

Public monuments are frequently physically unique and form part of a society’s cultural heritage. Measures, including proportionate sanctions, designed to dissuade acts which can destroy them or damage their physical appearance may therefore be regarded as “necessary in a democratic society”, however legitimate the motives which may have inspired such acts. In a democratic society governed by the rule of law, debates about the fate of a public monument must be resolved through the appropriate legal channels rather than by covert or violent means.

The offence is justified interference with Articles 10 and 11, to be regarded as “necessary in a democratic society”. It would appear, then, that ECtHR jurisprudence does not hold that the criminal damage is a matter of fact and degree in the same way as in the context of s137 of the Highways Act.

The directions of HHJ Peter Blair QC that

Courts must read and give effect to legislation such as the Criminal Damage Act in a manner which is compatible with a number of rights which we all have

probably indicate that he considered that “lawful excuse” in s1 of the Criminal Damage Act must necessarily include a fact-sensitive proportionality analysis in order for s1 to be in compliance with Convention rights.

But it should be emphasised s3 of the Human Rights Act 1998 does not require that legislation should be interpreted to include proportionality assessments on the facts where there is no violation of Convention rights under s6 of the Human Rights Act 1997.

In R (Ullah) v Special Adjudicator [2004] UKHL 26, Lord Bingham said:

It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.

This is important to note. Courts are not required to go further than Strasbourg jurisprudence. It would appear to be the case that, in applying Ziegler to an offence which is not related to obstruction and other similar offences such as trespassory assembly, HHJ Peter Blair QC has gone further than is required.

If “lawful excuse” includes Articles 10 and 11 in offences where those rights are claimed to be exercised, should this also apply to arson under s1(1) and s1(3) of the Criminal Damage Act 1971? Surely, it would be unreasonable to believe that a conviction for arson could constitute a disproportionate infringement of the right to freedom of expression or of the right to freedom of assembly and association, and that arson may sometimes be lawful and sometimes not on a fact-sensitive analysis.

It is most probably not a matter of fact and degree whether criminal damage or arson are lawful or not. This is unlike obstruction, which is more closely aligned to legitimate, peaceful protest and free expression, and where lawfulness turns on its extent, how much it interferes with the rights of others, its duration, et cetera. It would be better to say that convictions for offences such as criminal damage and arson are already established as being compliant with Convention rights, that Parliament has drawn a clear line that this conduct is criminalised, and that only statutory and general defences, such as duress, may apply.

On the matter of disproportionate interference being left to the jury, therefore, there are strong grounds on which the Attorney General may refer a question of law to the Court of Appeal.

Prevention of Crime

A second relevant defence put to the jury by HHJ Peter Blair QC was “May D have genuinely/honestly believed that a factual situation existed which amounts to a criminal offence (even if D’s belief was a mistaken one)?”.

Prevention of crime is a defence under s3 of the Criminal Justice Act 1967.

It was put to the jury that the presence of the Colston statue may constitute an offence of displaying indecent material publicly contrary to s1 of the Indecent Displays Act 1981, or it was an offence of displaying a visible representation which is abusive, within the sight of a person likely to be caused distress by it contrary to s5 of the Public Order Act 1986.

Did the judge properly leave the defence of prevention of crime to the jury?

R (on the Application of the DPP) v Stafford Magistrates Court [2017] EWHC 1794 (Admin) helpfully sets out some of the elements to be considered in prevention of crime:

Although it is not possible to set out all-embracing principles which can be derived from these cases, certain themes emerge. First, the defence under s.3(1) of the CLA 1967 operates as a justification for the use of force rather than an excuse to use force, and is linked to the concept of necessity. There must be an apprehension of a need to use force (or, I would accept for reasons that I will come to, in an appropriate case something less than force) to prevent an imminent or immediate crime; or as expressed in Hale, Pleas of the Crown (1778) volume 1 (p.52) ‘an actual and inevitable danger’. There must be a clear nexus between the use of force and the prevention of crime; and there is a clear difference between a protest against what is regarded as objectionable and even illegal conduct on the one hand, and the use of force to prevent an imminent and immediate crime on the other. Second, the court should not countenance the demand for disclosure or the calling of evidence (expert or otherwise) which relates to what cannot properly be characterised as an imminent or immediate crime. If the commission of such crimes are not within the direct knowledge of a defendant, they are unlikely to fall into that category. Third, on an application to consider the ambit of a defence under s.3(1) of the CLA 1967, a court should consider whether, on the most favourable view of the facts, such a defence is available. In doing so, it should keep firmly in mind the points raised in the speech of Lord Hoffmann in R v. Jones (Margaret) and others which I have sought to identify above. If there is no proper evidential basis on which the defence can be said to be available, it should be withdrawn from consideration. Fourth, where a case comes before a magistrate, who is both the judge of the law and the finder of fact, it is particularly important to consider carefully: (1) the proper ambit of the defence and (2) when making findings, the questions which need to be posed and how they should be answered. Fifth, I am very doubtful whether the ruling in the Crown Court in R v. Barkshire provides guidance as to the proper approach either in the Crown Court or in the Magistrates’ Court. I do not accept that the speech of Lord Hoffmann in R v. Jones (Margaret) and others at [73]-[94] can be dismissed as obiter dicta. Whether or not they were strictly speaking necessary for the decision can be debated. What is plain is that they provide a clear and cogent exposition of the legal issues that will arise in this type of case, with which the other members of the House of Lords agreed.

The first point is whether the judge in the Colston trial had properly considered that there had been an offence before he allowed prevention of crime to be left to the jury. The judge at trial should withdraw this defence from the jury if there is no imminent and immediate crime.

If there was no crime to be prevented, the defence should not be put to the jury. If the defendant had a genuinely held and honest belief that there was a criminal offence, it should be on a mistaken belief as to the facts, not to the law. In R v Jones [2006] UKHL 16, Lord Bingham said that

It is accepted that the reasonableness of the force used must be judged objectively in the circumstances which the defendant believed to exist, but this belief can extend only to facts and not to the legal consequences or implications of those facts.

In R v Wilkinson [2018] EWCA Crim 2154, Lord Justice Flaux said that

It is no answer to say that he may have mistakenly thought she was committing a crime, when she was not. That would be a mistake not of fact, but of law. A mistake of law cannot found a defence under section 3(1) of the Criminal Law Act 1967.

Did the judge properly consider that the presence of the statue arguably constituted an offence, or that it would have arguably been an offence on the facts that the defendants mistakenly believed?

He appears to leave a dictionary definition of “indecent” to the jurors so that they could judge whether the defendants had genuinely believed that the presence of the statue was a crime

“unbecoming; highly unsuitable or inappropriate; in extremely bad taste; unseemly; offending against the recognized standards of propriety and delicacy; highly indelicate…”

If the judge did not properly consider whether the statue arguably constituted an offence, or whether it was capable of being an offence on the facts that they genuinely believed, there would have been mistake as to law which merits an Attorney General’s Reference.

The same goes for whether it was an immediate crime, which constituted an emergency, where force would have been required to prevent the crime. Again, the judge has to consider whether to leave the matter to the jury.

R (on the Application of the DPP) v Stafford Magistrates Court explains some of the points made by Lord Hoffmann in respect of the reasonableness element in prevention of crime. It is emphasised that the justification is particularly restricted where people are taking the law into their own hands.

First, ordinary citizens who apprehend a breach of the law are normally expected to call the police and not take the law into their own hands. In general, the use of force by individuals in the prevention of crime must be confined so as to avoid anarchy, see [77] and [78]. Secondly, the use of force to prevent crime may be legitimate and give rise to the defence ‘in a moment of emergency, when individual action is necessary to prevent some imminent crime’, see [81]. Thirdly, the right of a citizen to use force is even more circumscribed when not in defence of his own person or property, but deployed to enforce the law in the interest of the community at large, see [83] and [84]. Fourthly, while the law recognises conscientious protests and civil disobedience, the honestly held beliefs of protestors as to the legality of certain activities cannot be allowed to subvert the forensic process, see [89], [90] and [93]. Fifthly, in the light of these points, a Court should be prepared to conclude that the defence under s.3(1) is not available to a defendant and, in such circumstances, the issue of justification should be withdrawn from a jury, see [94].

This is especially the case when they are not defending themselves or their own property. “The law will not tolerate vigilantes”, Hoffmann says in Jones.

The right of the citizen to use force on his own initiative is even more circumscribed when he is not defending his own person or property but simply wishes to see the law enforced in the interests of the community at large. The law will not tolerate vigilantes. If the citizen cannot get the courts to order the law enforcement authorities to act (compare R v Commissioner of Police of the Metropolis, Ex p Blackburn [1968] 2 QB 118) then he must use democratic methods to persuade the government or legislature to intervene.

Often the reason why the sovereign power will not intervene is because it takes the view that the threatened action is not a crime. In such a case too, the citizen is not entitled to take the law into his own hands. The rule of law requires that disputes over whether action is lawful should be resolved by the courts. If the citizen is dissatisfied with the law as laid down by the courts, he must campaign for Parliament to change it. So in Monsanto v Tilly [2000] Env LR 313 a landowner claimed an injunction against protesters who threatened to trespass upon his land and dig up genetically modified crops. They claimed to be acting in the public interest and to protect third parties from damage which the crops might cause. The Court of Appeal said that this was no defence.

Hoffmann says that this defence should be withdrawn from the jury if these matters are not satisfied.

The practical implications of what I have been saying for the conduct of the trials of direct action protesters are clear. If there is an issue as to whether the defendants were justified in doing acts which would otherwise be criminal, the burden is upon the prosecution to negative that defence. But the issue must first be raised by facts proved or admitted, either by the prosecution or the defence, on which a jury could find that the acts were justified. In a case in which the defence requires that the acts of the defendant should in all the circumstances have been reasonable, his acts must be considered in the context of a functioning state in which legal disputes can be peacefully submitted to the courts and disputes over what should be law or government policy can be submitted to the arbitrament of the democratic process. In such circumstances, the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest, cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury. Evidence to support the opinions of the protesters as to the legality of the acts in question is irrelevant and inadmissible, disclosure going to this issue should not be ordered and the services of international lawyers are not required.

Even if left to the jury, the directions should have some of the detail that Hoffmann provides. The directions seem to lack that detail, however. Hoffmann is clear that justification in direct action is limited. All the HHJ Peter Blair QC says on the issue is this, which does not consider all of the relevant issues:

The Prosecution says that even if you were to conclude Bristol City Council may have been committing one or both of the crimes now alleged (which is disputed), and even if you were to conclude the Defendants honestly (even if mistakenly) took the action they did to prevent one or more of those crimes,

it was unreasonable, in the circumstances as Ds believed them to be, to use force like this to prevent it, because there was a process through which concerns about the statue could have been dealt.

The Defendants argue that their actions were reasonable because any such processes had failed.

Finally, on the preventing crime defence, there was comment made by Karl Laird in his article “Defence: R (on the application of the DPP) v Stratford Magistrates’ Court” in the Criminal Law Review in 2018 that there are aspects that “require further judicial elucidation”, including on the subject of force:

In conclusion, the Divisional Court’s judgment provides welcome clarification on the scope of the defence in s3(1). It also serves to highlight, however, that there are a number of aspects of the defence that require further judicial elucidation.

An Attorney General’s Reference might be welcome, then, to clarify the elements of the defence.

Conclusion

As should be obvious, the two areas of law raised, disproportionate infringement assessments being left to the factfinder, and the prevention of crime justification, are not particularly straightforward.

Much of the criticism directed at Suella Braverman was knee-jerk, itself more highly politicised than anything Braverman had said, and sometimes quite nasty.

It is puzzling that any lawyer or politician could reasonably object to an Attorney General’s Reference. Not only is it more than possible that the judge had made mistakes in his directions to the jury, it is also true that these two points of law could benefit from further clarification from the Court of Appeal so that the law can be properly applied in a more certain way in future cases.