1. What happened in this case?

On 7 June 2020, in the course of a Black Lives Matter protest in Bristol, a monument of 17th-century slave trader Edward Colston was pulled down and thrown into the harbourside. Consequently, four of those involved, Milo Ponsford, Sage Willoughby, Rhian Graham and Jake Skuse were charged with criminal damage.

On 5 January 2022, following a trial at Bristol Crown Court, all four were found not guilty by the jury.

 

2.   What is criminal damage?

Criminal damage is defined in the nattily-titled Criminal Damage Act 1971. Section 1(1) provides:

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

In a criminal Crown Court trial, the prosecution has to prove the case, by making a jury sure of guilt (what used to be formulated as “beyond reasonable doubt”). A defendant does not have to prove their innocence. For a charge of criminal damage therefore, the prosecution has to prove the following:

  1. The Defendant damaged property;
  2. The property belonged to another;
  3. The Defendant intended to damage the property or was reckless as to whether it would be damaged; and
  4. The Defendant did not have a lawful excuse for damaging the property.

 

3. I thought I read that the defendants all admitted criminal damage?

The defendants all admitted their part in pulling down the statue. It was accepted that Ms Graham and Mr Ponsford had brought ropes to the scene, that Mr Willoughby had climbed the statue to pass ropes around its neck and that Mr Skuse had encouraged the crowd to roll the statue into the harbour and into the water. The prosecution case was that these four defendants were acting together and jointly with others, meaning that the prosecution didn’t have to prove that each defendant personally caused damage to the statue. It was enough if a defendant deliberately assisted or encouraged others to damage it, say by providing ropes to be attached to the statue.

But it is wrong to say – as has been widely misreported – that the Defendants admitted criminal damage. They did not. Looking at our checklist above, while there was no dispute that the statue belonged to another (Bristol City Council held the statue in trust on behalf of the people of Bristol), the other elements of the offence were challenged.

Three of the defendants argued that the Colston statue had in fact not been damaged, defined as “temporarily or permanently physically harmed”; that its value had increased as a result of it having been pulled down, salvaged and restored in a museum. It follows that they did not accept intending to damage the statue or being reckless as to whether it was damaged.

But the key issue, raised by all defendants, relates to that phrase “without lawful excuse”. Because the case for all defendants was that, even if damage had been caused, it was not unlawful. And this is where things get interesting.

 

4. What is a lawful excuse for damaging property?

Section 5 of the Criminal Damage Act 1971 provides examples of what might amount to a ‘lawful excuse’. But it is not exhaustive. There are also a number of cases from the High Court and Court of Appeal which clarify what might and might not amount to a lawful excuse. For instance, damaging property because you believe you are carrying out God’s will is not a lawful excuse. Nor is damaging a wheel clamp after you’ve parked your car in a private car park with a clear warning that your car will be clamped.

In this case, the following lawful excuses were raised, and the judge agreed that they should be left for the jury to decide:

 

i. Reasonable force was used to prevent a crime

It is well-established, both in our common law and in legislation (section 3(1) of the Criminal Law Act 1967, as you ask) that a person is entitled to use reasonable force to prevent the commission of a crime.

All defendants argued that the public display by the council of the Edward Colson statue was itself a crime, or potentially two crimes. First, it was said that displaying the statue amounted to an offence of displaying indecent material contrary to section 1 of the Indecent Displays (Control) Act 1981.

Second, it was said that there 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 section 5 of the Public Order Act 1986.

It was this element of the case that resulted in expert evidence being given by historian Professor David Olusoga, who detailed the history of Edward Colston, the role that the Royal African Company, of which Colston was CEO, played in enslaving and shipping African people, and of the violence and brutality inflicted by the RAC upon tens of thousands of enslaved people. It was argued by the defence that the public display of a memorial to Colston was therefore both indecent and abusive, such as to render it criminal under the two Acts cited above.

Now when considering this defence, there were three key questions for the jury:

  1. Did the defendants honestly believe that a crime was being committed? (Note that the question is not whether a crime had been committed by displaying the statue, but whether the defendants honestly believed that a crime was being committed)
  2. Were the defendants’ actions in order to prevent one or both of those crimes?
  3. If so, did the defendants’ actions amount to the use of reasonable force, in the circumstances as the defendants perceived them to be?

The prosecution case was ‘no’ to each of these questions. And, as mentioned previously (and as I’ll repeat throughout), the prosecution has the burden of disproving this defence.

 

ii. Owners’ consent

 The second ‘lawful excuse’, which set out in section 5 of the Criminal Damage Act 1971, was raised by two of the defendants, who said that they honestly believed that the statue was owned by the people of Bristol, and that had the people of Bristol known of the circumstances, they would have consented to what was done.

The prosecution case was that the defendants had no such belief, and had taken no steps to consult the people of Bristol.

Again, the burden is on the prosecution to disprove the defence. If there’s any doubt, the defendants are entitled to the benefit. That is the cornerstone of our justice system.

 

5. So if the jury were sure that damage was caused and that there was no lawful excuse, they had to convict the defendants, right?

 Not quite. If the jury rejected all of the other defence arguments, there was one final issue for the jury to decide. And, to put it in its simplest terms, it relates to the right to freedom of thought and conscience and the right to freedom of expression.

These rights, the courts have long held, protect not only beliefs – such as anti-racism – but actions associated with protest. Because the alleged damage was caused in the course of a protest, these rights – guaranteed to us all by the European Convention on Human Rights – were engaged in this trial. Now this does not provide a ‘trump card’ – you don’t have an automatic defence to a criminal offence simply because you were acting in according with your beliefs or exercising your right to protest. Limitations on those rights – such as laws preventing criminal damage – are permitted. But, as the Supreme Court recently confirmed, when considering whether a ‘lawful excuse’ exists for potentially criminal acts committed in the exercise of those rights, the courts are required to consider whether convicting the defendants would represent a proportionate interference with the exercising of those rights. In other words, is it necessary in a democratic society, in the interests of public safety or for the protection of the rights of others, that the defendants should be convicted for their actions?

Answering this question requires the jury to balance the rights of the statue owners not to suffer damage to their property with the rights of the defendants to act according to their beliefs. As the judge directed the jury, everybody in the country enjoys these rights. And the jury were expressly directed that the question is not whether the jury agreed with the defendants’ actions or aims. The same exercise would apply to any defendant, irrespective of how sympathetic (or otherwise) the jury found their cause.

Put even more simply, if the jury were satisfied that the prosecution had made them sure of guilt, they would also need to be sure that a criminal conviction for criminal damage would be proportionate.

In this exercise, the jury were directed to consider the follow (non-exhaustive) list of factors (drawing on the Supreme Court judgment):

  • 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.

 

 6. So which defence did the jury accept?

 We don’t know, and will never know, because juries are not allowed to disclose details of their deliberations, or to give reasons for their verdicts. All the verdict tells us is that the jury were not sure that the prosecution had proved its case, or alternatively that the jury were sure the case had been proved, but were not sure that it would be proportionate to convict the defendants. And that formulation is key. The defendants did not have to prove that they were acting lawfully; the prosecution had to prove that they were not. That is not a glitch or a technicality: that is the foundation of how our system works.

 

7. Why are so many people so upset?

The trial has widely been appropriated as a proxy battle in the culture wars. Those who believe it was wrong to pull down Colston’s statue see the verdict as an affront. Their grievance has been inflamed by comments from politicians and media commentators which misunderstand or misrepresent what the case was about, and what the verdicts mean.

Former cabinet minister Robert Jenrick tweeted:

Meanwhile Ipswich MP Tom Hunt declared himself “deeply concerned at the precedent set here“, and his colleague Michael Fabricant suggested he would bring the intellectual might of the Home Secretary to bear on the case:

 

On behalf of the government, Transport Secretary Grant Shapps appeared to agree that there was a “loophole” that the government would look to “fix”. And the Prime Minister waded in to opine that it was “wrong” for people to “go around seeking retrospectively to change our history”.

For reasons we will look at below, very little of that is true or accurate.

It is not all one-sided, however. Public understanding of the case has not been assisted by some of the responses supporting the verdicts. Prof Olusoga, for instance, told the BBC:

“An English jury… has come to the conclusion that the real offence was that a statue to a mass murderer was able to stand for 125 years, not that that statue was toppled in the summer of 2020.”

Similarly, one of the defence legal representatives has been quoted as saying that the jury: “determined that a conviction for the removal of this statue – that glorified a slave trader involved in the enslavement of over 84,000 black men, women and children as a ‘most virtuous and wise’ man – would not be proportionate.”

Neither of those, with respect, are quite right. The jury might have reached either, or both, of those conclusions, certainly. But we can’t say for sure. It is equally as possible that the jury thought that toppling the statue was a dreadful act, but could not be sure that any damage was actually caused. Or that the jurors personally took no offence to the statue, but accepted that the defendants might have genuinely and honestly believed that the display of the statue amounted to a criminal offence. To labour the point – but it’s an important one, for both sides to remember – there were multiple routes to a not guilty verdict in this case. We simply don’t know which one the jury took. (For what it’s worth, I have long been in favour of requiring juries to provide reasons for their verdicts to reduce this sort of confusion generated by binary jury verdicts, but this is a controversial view among criminal lawyers.)

 

8. Is there a loophole in the law?

Not that anybody who has been complaining about “loopholes” has cared to identify. And not that I can see. There were some very clever legal arguments advanced by the defence, opposed by the prosecution and accepted by the judge, but that is, unsurprisingly enough, what lawyers are for – to make submissions on how the law should be applied. This is how criminal trials work – lawyers contend for an interpretation of the law that supports their case, and judges apply established legal principles to reach a ruling. For completeness, it should be noted that there were other, even more ambitious, legal arguments made by the defence which the judge rejected.

Might it be argued that there’s something unusual about an acquittal on the basis that the jury were sure of guilt but not sure that a conviction would be proportionate? Possibly. If (and, as I’ve stressed, we don’t know) this was the basis of the acquittal. But this is not a legal proposition pulled out of the sky by a tricksy defence lawyer and an uber-woke trial judge. It has been set down by our highest court, and is a protection that applies to all of us, not simply the Colston 4. It’s a novel application of the principle, and there are no doubt legal arguments against its correctness. But that’s not a loophole.

And ultimately, this was not a case in which an arcane piece of law was waved in front of a judge and the prosecution was kicked out with no evidence being heard. It was a full trial, with evidence given by both sides, and an independent, randomly-selected jury delivering a verdict. That, to my mind, is a funny kind of loophole.

 

9. Is this outcome an affront to the Rule of Law?

Not on any sensible interpretation. The rule of law holds, at its heart, that the law applies equally to all of us. The same legal principles apply whether you are a BLM protestor pulling down a statue, or an anti-communism campaigner taking a pop at the Karl Marx monument. Many people appear to have mistaken ‘the rule of law’ for ‘an outcome I agree with’.

But there’s another, important, point.

Even if the jury had been sure of the defendants’ guilt, and had been sure that a conviction would be proportionate, our system still does not compel a jury to find defendants guilty. Since the 17th century, juries have been entitled to acquit a defendant for any reason. They are not explicitly told this – they are directed by the judge that they must reach verdicts based on the evidence they have heard. But a judge cannot force a jury to convict. So the jury retains the prerogative to acquit, irrespective of the strength of the case against a defendant, and the courts cannot interfere (sometimes referred to as a “perverse verdict” or “jury nullification”). This principle is embedded into our common law. One of the strongest arguments in favour is the protection that the jury affords the individual from the power of the state. It means that, if you are tried under an unjust law, your fate is ultimately in the hands of your peers, who can mark their displeasure by an acquittal. There are of course arguments against, including that a perverse acquittal runs counter to the oath that every juror swears to return a verdict according to the evidence. But it is part of our law. It has been for centuries. And, as a long-established prerogative of the jury, it is impossible to see how its exercise – if that is what happened – can be described as an affront to the rule of law.

Allied to these criticisms has been a suggestion from certain commentators that it was somehow inappropriate for the jury to apply “values” in this case. This criticism is the rather regrettable sort of fallacy you risk when you seek opinions on criminal law from writers with no experience of the criminal courts, but it is hard to convey in sober terms how utterly batshit this proposition is. Value judgements – concepts of how much force is reasonable, and whether a person has an honest belief in something, and whether a statue of a slave-trader is indecent or offensive, and whether a criminal conviction is proportionate to the alleged wrong – these are quintessential jury issues. They arise in all sorts of criminal cases, along with other judgements that juries are asked to make – was this type of conduct dishonest? was this person’s belief in consent reasonable? – and feed into the very reason we have retained juries in criminal courts. We ask independent, randomly-selected local citizens to pool their experience and their values and apply them to the questions that the law asks them to decide. Not in any way an “assault on the rule of law” – just the criminal law in action.

What does, however, represent a genuine threat to the rule of law is when elected politicians, having not heard the evidence nor bothered to understand the relevant legal principles, attempt to undermine the verdicts of independent juries when the outcome of a criminal case does not meet with their approval. That is a very dark road indeed.

 

10. Does this create a precedent? Does it mean that anybody can now pull down a statue of somebody they don’t like without consequence?

No. And no. Jury verdicts create no precedent in law. If a case with exactly the same facts were tried tomorrow by a different jury, that jury would be entitled to convict. If you pull down a statue, and the Crown Prosecution Service conclude that there is evidence to support a charge of criminal damage and that it is in the public interest to prosecute you, you will be prosecuted for criminal damage. You will then be at liberty to plead not guilty and to be tried by a jury of your peers, during which you would be tried according to the same standards and under the same law as the Colston 4. Whether you would be convicted, and, if so, what your sentence would be, would entirely depend on the facts and circumstances proved by the evidence. There is never a guaranteed outcome with a jury trial. That’s our system, folks.

 

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