Why the Attorney General’s Reference on the Colston Trial Should Succeed

Colston Statue Cast into Harbour

Attorney General’s Reference

On 5 January, Rhian Graham, Milo Ponsford, Sage Willoughby and Jake Skuse, who took part in the toppling of the statue of Edward Colston in Bristol, were acquitted on charges of criminal damage. This had followed the death of George Floyd during police custody in Minneapolis, an event which had sparked worldwide Black Lives Matter protests against racism. Colston, who had hitherto been a lauded figure for his philanthropic works, was the target of much anger in Bristol because of his prominent role in the slave trade. The acquittal, however, was a matter of controversy to sections of the press and public, who wondered why such an apparently clear case of criminal damage would not result in a conviction.[1]

What at first appeared to be a perverse verdict in the manner of Randle and Pottle,[2] or recent Extinction Rebellion cases, was, in fact, one which could have been reached through following the directions of the judge at the trial, HHJ Peter Blair QC. The four relied on several defences, one of which involved a novel application of a point of law. It was determined that in order for there to be a conviction not only would the prosecution have to show that the defendants had satisfied the usual ingredients of criminal damage, but that it should also be shown that a conviction was a proportionate interference with the rights to freedom of conscience, expression and assembly under Articles 9, 10 and 11 of the European Convention on Human Rights (ECHR), as incorporated into domestic law by the Human Rights Act 1998.

It was this point of law which the Attorney General decided to refer to the Court of Appeal Criminal Division under section 36 of the Criminal Justice Act 1972, stating that she was concerned with the “interaction between the offence of criminal damage and the rights relevant to protest peacefully”.

The other relevant point of law which might have been brought was the scope of the prevention of crime defence under section 3 of the Criminal Law Act 1967, which was a second defence given in the directions to the jury. I argued in a previous article that section 3 was improperly introduced and expanded on that argument in a second article. Whilst a number of cases do show that section 3 is closely circumscribed in respect of protest,[3] meaning that a reference could be valid, the reference to the Court of Appeal appears to be brought solely on disproportionate interference with human rights.

The Attorney General stressed in her public communication on the reference that should the Court of Appeal decide in her favour the result would not be to upset the verdict of the jury. The purpose is to clarify an uncertain area of law and to prevent mistakes from circulating in the lower courts.[4] Given the fact that we are now seeing a number of cases in England and Wales where protester groups such as Just Stop Oil, Extinction Rebellion and Insulate Britain, are deliberately putting themselves in a position where prosecutions are likely, it is in the interests of justice to determine whether proportionality tests are appropriate in these cases. For instance, it was reported by the Daily Telegraph in April, that Gail Bradbrook was seeking to rely on the argument that a conviction would be a disproportionate interference with rights after she was accused of smashing a window at the Department of Transport during an Extinction Rebellion protest. The trial would be paused until the outcome of the reference was known.

The reference asked three questions

1. Does the offence of criminal damage fall within that category of offences, identified in James v DPP [2016] 1 WLR 2118 and DPP v Cuciurean [2022] EWHC 736 (Admin), where conviction for the offence is — intrinsically and without the need for a separate consideration of proportionality in individual cases — a justified and proportionate interference with any rights engaged under Articles 9, 10 and 11 of the European Convention on Human Rights (‘the Convention’)? If not, and it is necessary to consider human rights issues in individual cases of criminal damage:

2. What principles should judges in the Crown Court apply when determining whether the qualified rights found in Articles 9, 10 and 11 of the Convention are engaged by the potential conviction of defendants purporting to be carrying out an act of protest? And

3. If those rights are engaged, under what circumstances should any question of proportionality be withdrawn from a jury?

The hearing for the case took place on 29 and 30 June with the Lord Chief Justice of England and Wales, Mr Justice Holgate and Mr Justice Saini sitting in the Court of Appeal Criminal Division.

Since there is limited material on which to draw as to the specific submissions in the Court of Appeal, this article examines what was most likely to have been argued, using the information which has been made available from reports, and argues that that the reference ought to succeed. It is improbable that proportionality assessments are required by law. However, if they are, their application should be closely confined, and the use in the Colston trial was still improper in any case.

Criminal Damage and Proportionality Assessments

In usual cases of criminal damage, the prosecution need only to follow the definition in section 1 of the Criminal Damage Act 1971 in order to prove the elements of the offence of criminal damage. That definition is as follows:

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

However, it was announced on the Doughty Street Chambers website that an additional element was left to the jury, following “new and complex legal arguments” by Liam Walker QC:

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.

A New Statesman article recounting the trial describes how Blinne Ní Ghrálaigh, counsel for Rhian Graham, had argued for an hour that Ziegler should form part of directions, to which the judge agreed overnight. Strictly speaking, this was not the first jury trial (as claimed by Doughty Street) where a proportionality assessment had been left to the jury, since earlier obstruction cases have had such assessments. However, it does appear to be the case that this was the first instance where it had arisen in a trial involving criminal damage.

The directions from HHJ Peter Blair QC were later released by the barrister and blogger Matthew Scott QC. The judge said that the jury should:

ask whether the interference in the defendants’ rights, which a conviction for the offence of criminal damage would cause, is proportionate in all the circumstances, including the individual actions of each D.

He then added additional non-exhaustive list of factors which the jurors should take into account when deciding whether a conviction would be a disproportionate interference the defendants’ rights:

The extent of the interference with the rights of others, notably the rights of Bristol City Council and of other Bristolians on whose behalf they held this statue in trust.

Whether the Defendant believed in the views which motivated their actions.

Whether those views relate to very important issues.

The importance to the Defendant of the method of protest adopted.

Whether the actions of the Defendant was directly aimed at the matter of which they disapproved.

Whether the Defendant’s actions presented a danger to public safety.

Ziegler and Recent Cases

Tom Little QC, acting for the Attorney General in the reference to the Court of Appeal, argued that juries should not be directed to assess the proportionality of a conviction for the offence criminal damage. “No balancing exercise is appropriate,” said Little. “Damage to property is — like violence to the person — a simply unacceptable way to engage in political debate.”

Ziegler itself related to obstruction of the highway, contrary to section 137 of the Highways Act 1980. The defendants had been charged 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 disruption was more than minimal, the factfinder should undertake a proportionality assessment, taking into account Articles 10 (freedom of expression) and 11 (freedom of assembly) of the ECHR under the “lawful excuse” part of the offence, reading in this requirement under section 3 of the Human Rights Act. This fact-sensitive assessment would turn heavily on the individual elements of each case.

A broader reading of Ziegler, encompassing a wider range of offences unrelated to non-violent public order and obstruction, would be a mistake. Two recent cases have closely circumscribed the ambit of Ziegler and its applicability to protest cases. First, in R v Brown [2022] EWCA Crim 6 it was argued by Timothy Moloney QC, acting for the appellant, that Ziegler could apply to abuse of process. Brown had glued himself to the top of a British Airways commercial passenger aircraft at London City Airport. Lord Burnett, the Lord Chief Justice, dismissed the appeal, saying that Ziegler did not concern abuse of process and that

The offence which was the subject of Ziegler was obstruction of the highway, contrary to section 137 of the Highways Act 1980. That offence provides for a specific defence of “lawful excuse”. The Supreme Court, endorsing what the Divisional Court had said in that case, confirmed that that phrase is capable of being interpreted (pursuant to section 3 of the 1998 [Human Rights] Act) to include the proper exercise of Convention rights. In the present context, however, Mr Moloney accepts that exercise of the Convention rights does not provide the foundation for a defence as a matter of substantive criminal law.

Second, in DPP v Cuciurean [2022] EWHC 736 (Admin), the Lord Chief Justice again declined to broadly interpret the ratio of Ziegler. Cuciurean, protesting against HS2, had trespassed on land in Staffordshire and dug and occupied a tunnel, intending to stop (or at least disrupt) the construction of the railway line. Cuciurean was then charged with aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994. He was acquitted at the Magistrates’ Court following a proportionality assessment. The prosecution appealed to the High Court. Lord Burnett declined to proceed on the first ground, since it had not been advanced in the prosecutions application to the Magistrates’ Court for the case to be stated, but did say that it was likely that Convention rights had not been engaged, considering the fact that the trespass had taken place on private land. On the third ground, Lord Burnett found that the proportionality assessment undertaken by the judge at first instance had been irrational.

Most importantly, Lord Burnett set out the reasons why the second ground would be upheld. His Lordship found that s68 did not have a “lawful excuse” element contained within it and that the ingredients of the offence were already compliant with the ECHR. James v DPP [2015] EWHC 3296 (Admin) was cited, which said that

The necessary balance for proportionality is struck by the terms of the offence-creating provision, without more ado.

Lord Burnett went on to say that section 6 of the Human Rights Act, which states that it is unlawful for public authorities to act incompatibly with convention rights, does not require a freestanding proportionality assessment. Such an assessment only arises where rights are engaged, and where proportionality is part of the offence. If the ingredients of the offence are already proportional, there is no need for an assessment.

Lord Burnett emphasised that the ratio of Ziegler was in relation to s136 of the Highways Act, saying that Ziegler:

does not lay down any principle that for all offences arising out of ‘non-violent’ protest the prosecution has to prove that a conviction would be proportionate to the defendant’s rights under articles 10 and 11 of the European Convention on Human Rights

From these cases, it is possible to see that the Lord Chief Justice has taken a particular interest in confining the scope of Ziegler. The key question in the Attorney General’s Reference will be whether the “without lawful excuse” element in s1 of the Criminal Damage Act gives rise to proportionality assessments, taking into account the analysis of Ziegler in Brown and Cuciurean. The argument against the application of Ziegler is that the offence itself, by its ingredients, is already compliant with Article 10, and that it is therefore unnecessary to undertake a fact-sensitive analysis.

Further, Cuciurean mentions more than once that Ziegler applies to non-violent public order offences. That would include obstruction and certain trespassory assemblies. Article 11 lays out the right to “freedom of peaceful assembly”. In Majidli and Others v Azerbaijan, the Grand Chamber of the European Court of Human Rights (ECtHR) said that

Article 11 of the Convention only protects the right to “peaceful assembly”, a notion which does not cover a demonstration where the organisers and participants have violent intentions

Criminal damage is arguably a violent offence. The Oxford English Dictionary describes violence as “the exercise of physical force so as to inflict injury on, or cause damage to, persons or property”. Under section 8 of the Public Order Act 1986 “violence” is interpreted in the statute to include violent conduct towards property as well as violent conduct towards persons. Criminal damage itself is not a Public Order Act offence, although the same conduct may fit into violent disorder under section 2 of the Public Order Act. This definition of violence to include damage to property gives a strong reason as to why criminal damage does not form part of legitimate protest where balancing exercises regarding rights are required.

This is at odds with the view expressed by Clare Montgomery QC in the Attorney General’s Reference. Upon being questioned by Lord Burnett on whether her argument could apply to cases of common assault, she said that it would most likely not be concerned with that offence in most instances, but that it was possible on her analysis. Yet violence against the person does not engage Article 11, which protects “peaceful” assembly. It is also arguable that violence to the person or property does not engage Article 10, since it is not a recognised form of expression. It may well be possible that spray painting could be an expression of protected political dissent, but it is a struggle to comprehend how assault or material damage is covered under the Convention as understood. With regards to the Colston case, it could be argued that defendants were simply damaging a piece of property with which they disapproved, not imparting information and ideas.

In terms of proportionality, if Convention rights are engaged, the ECtHR took the view that convictions are proportionate in cases of criminal damage to monuments. In Handzhiyski v Bulgaria App no 10783/14 (ECtHR, 6 April 2021), it was found that there was a violation of Article 10 for the applicant to have been convicted of minor hooliganism for placing a Santa Claus hat on a statue, and a sack at its feet. However, the court said that

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.

If this is so, and if the damage is more than minimal, it is likely to be unnecessary to place an extra proportionality ingredient to be left to the jury in criminal damage cases.

In the later case Genov and Sarbinska v Bulgaria App no 52358/15 (ECtHR, 30 November 2021), the ECtHR found that a conviction of hooliganism for spray painting a statue dedicated to “partisans” near the Bulgarian Socialist Party was a disproportionate interference with Article 10 rights of freedom of expression. This was because the spray painting did not cause such harm so as to irreversibly damage the statue itself and because the graffiti was part of an act of protest. Although Genov and Sarbinska gives an arguably too expansive account of acceptable protest, looking closely at the reasoning of the ECtHR shows that it does not apply to the facts of the Colston case. It was determined that there was no evidence shown by Bulgarian authorities of expenditure to remove the spray paint. In the article ‘Statues, statute and freedom of expression’ by Ivan Hare QC, it was noted that the Colston statue had lost its bronze staff and one of the coat tails, as well as general damage to its surface.[5] The statue had therefore been damaged quite clearly and permanently, without a separate expenditure test being required. The factfinder, therefore, need not consider finely balanced arguments about the application of rights when deciding whether to convict, since the offence itself went beyond more than minimal damage. Genov and Sarbinka does not suggest that proportionality assessments are necessary in all cases of criminal damage where Convention rights are engaged.

One difficulty could conceivably arise in cases where the expense test is undertaken. In Hardman v Chief Constable of Avon and Somerset [1986] Crim LR 330 water-soluble drawings on the pavement were damage because it cost money to restore them to their original state. If this related to a protected Convention right, a prosecution on such grounds could fall foul of the ECtHR’s determination in Genov and Sarbinka. The solution to this, without applying an individual proportionality assessment, would be to require that the prosecution demonstrate that there was expense incurred in returning the property to its original state. In such a case, a State could be given a margin of appreciation in the way in which it deals with criminal law and procedure.

Issues With Leaving Assessments to Juries

Claire Montgomery QC argued that the Attorney General was staging a general “attack on the use of juries” in bringing the reference to the Court of Appeal. She said that “juries are often asked to make judgements about balance in relation to moral as well as legal issues. Decisions about dishonesty, abuse of position, indecency, as well as reasonable excuse, often involve difficult questions of judgement.” The Secret Barrister made similar points in his article in The Sunday Times, where he maintained that value-based judgements are not unusual and that proportionality assessments are therefore not as alien to the role of jurors as some assume.

First, it should be said that the nature of these assessments does give much wider grounds on which to acquit defendants. It does make it far less likely to predict whether a jury will convict, especially if the elements to be weighed by the jury lack rigour and are presented in generalised terms. Parliament has drawn a clear line that this conduct is criminalised, and that only statutory and general defences, such as duress, may apply. The “lawful excuse” was manifestly not a provision which was conceived to require that the prosecution having to prove that a conviction would be proportionate to juries on a fact-sensitive analysis.

Second, the comparison between disproportionate interference of rights and other elements juries consider is inapt. Reasonableness as a concept attempts more objectivity. It is also developed by case law. For instance, in relation to self-defence, and prevention of crime, the circumstances where force is reasonable are defined in more detail, and its use limited when relating to protest; and the test for dishonesty turns on the defendant’s state of knowledge or belief as to facts and whether his conduct was dishonest by the standards of ordinary decent people. This is a more specific way of looking at an issue, evaluating the standards according to an ordinary decent person. A balancing exercise taking into account rights is very different. It involves considering wider societal interests involved and gives a jury a route to acquit even on clear evidence of the prohibited conduct and the usual prohibited state of mind of the defendant. It could almost be described as a judicially sanctioned exercise of jury equity, allowing juries to acquit if they would consider it an injustice if the defendant was found guilty.

It is not a general attack on juries to argue that giving such wide grounds on which to acquit is inappropriate in most circumstances. The role of a judge is to properly direct the jury so that its evaluation of the facts is in accordance with the law. Certain defences will never apply to certain crimes or certain sets of circumstances. Verdicts from juries may be frequently subject to uncertainty, considering that each jury will take varying approaches towards the issues, but it is in the interests of justice to limit that uncertainty as far as is possible.

In sum, proportionality assessments are quite different in nature to the usual exercises undertaken by juries. Since they are now required in obstruction of the highway cases involving protest, juries will have to consider them on the occasions where they are raised properly. Nevertheless, the notion that closely containing their use is objectionable and an attack on the system as a whole is unsustainable.

Elements to be Considered in Balancing Exercise

Even if such an assessment should be brought, the specific elements that the jurors should consider, and the weight attached to them is of vital importance. HHJ Peter Blair QC presented a series of very broad questions to the jury. For example, the extent of the interference with the rights of others, whether the defendant believed in the views which motivated their actions, the importance to the defendant of the method of protest adopted, the threat to public safety, alongside other elements.

This is of a nature which is very different to tests relating to obstruction of the highway cases. City of London Corpn v Samede [2012] PTSR 1624 outlined some of the elements to be considered:

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.

That gives the factfinder a much more specific task than the very open questions regarding rights in HHJ Peter Blair QC’s directions. Obstruction is more suited to such a test, considering the specific connection between protest and gathering, and the way in which criminalisation is turns heavily on the facts.

Regarding Genov and Sarbinska, the important element to be considered is the extent of the damage, which was not alluded to at all in the directions on proportional interference in the Colston case. The ECtHR said at [75] that

in this context the physical damage to a monument, though not the exclusive factor for assessing the necessity of interferences with such acts, would in principle carry the greatest weight.

On that basis, directions where damage was ignored would inevitably be fatally flawed. Had a jury be instructed that great weight should be assigned to the level of damage, the assessment could well have been undertaken in a very different manner.

Withdrawing Proportionality from a Jury

Even if Convention rights may be engaged in cases of criminal damage, and even if proportionality assessments may be introduced, it will not always be appropriate for a judge to direct that the prosecution is required to prove that a conviction is a proportionate interference.

In Ziegler, it was noted that “some cases stated in relation to section 137 prosecutions may involve no proportionality issues at all” when discussing obstruction of the highway and proportionality assessments. As stated previously, Genov and Sarbinska only determined that a hooliganism conviction was a violation of Convention rights when the State did not prove material damage to the statue in question. By contrast, a case where the damage was more than minimal, especially when that fact is not contested, is not a violation. It should, therefore, be open to a judge to withdraw any requirement for a jury to undertake a proportionality assessment when there is material damage.

Conclusion

In light of Lord Burnett’s statements in recent cases where Ziegler was raised, it would appear that His Lordship is likely to find in favour of the Attorney General. It is difficult to accept the proposition that rights of conscience, expression and assembly include the right to damage property. One possible obstacle is the Genov and Sarbinska v Bulgaria case. However, the decision by the ECtHR does not appear to have the implication that the offence of criminal damage under the law of England and Wales would require a separate fact-specific proportionality assessment in the circumstances where material damage or expenditure to put property right is properly made out. In the Colston trial, of course, the damage itself was uncontested.

Should proportionality assessments prove to be a requirement in certain circumstances, a judge still ought to closely contain their application. Genov and Sarbinska was decided on a narrow issue, where damage had not properly been established. The assessment may, then, be necessary only when the damage is at issue; and in that case the element to be weighed most greatly by the jury should be the physical damage to the property in question.

Footnotes

[1] Gregory Kirby and Andy Dolan, ‘An extraordinary, dangerous vandals’ charter: MPs slam verdict in Colston statue destroying case and government vows to keep prosecuting suspects as mob of BLM activists who tore it down spout woke platitudes on the court steps after walking free’ The Daily Mail (6 January 2022) <https://www.dailymail.co.uk/news/article-10373391/Colston-statue-trial-MPs-slam-verdict-mob-BLM-activists-spout-woke-platitudes-court-steps.html>; Jonathan Sumption, ‘ Make no mistake, the ‘Colston Four’ verdict undermined the rule of law’, The Daily Telegraph (8 January 2022) < https://www.telegraph.co.uk/news/2022/01/08/make-no-mistake-colston-four-verdict-undermined-rule-law/>; Patrick West, ‘Edward Colston and the problem with the ‘right side of history’, The Spectator (9 January 2022) <https://www.spectator.co.uk/article/edward-colston-and-the-problem-with-the-right-side-of-history->.

[2] Thomas Grant, Court Number One (John Murray 2019) 311–340.

[3] R v Jones (Margaret) [2006] UKHL 16; R v Thacker [2021] EWCA Crim 97.

[4] Attorney General’s Reference (No 1 of 1975) [1975] QB 773.

[5] Ivan Hare QC, ‘Statues, statute and freedom of expression’ [2021] Public Law 691, 693–694.

Further Reading

Tony Dowson, ‘Is an Attorney General’s Reference Following the Acquittal in the Colston Trial Merited?’ (2022) <https://medium.com/@tonydowson180/is-an-attorney-generals-reference-following-the-acquittal-colston-trial-merited-3569211780a4>.

Charles Wide QC, ‘Did the Colston trial go wrong? Protest and the criminal law’ Policy Exchange (2022) <https://policyexchange.org.uk/wp-content/uploads/Did-the-Colston-trial-go-wrong.pdf>.

JR Spencer, ‘ Toppling statues — and upsetting the legal apple-cart?’ (2022) 2 Archbold Review 7.