On the 7th June 2020, during the global protests following the murder of George Floyd, the statute of Edward Colston in the centre of Bristol was torn down by protestors.

Edward Colston (1636-1721) was a Bristol-born slave-trader, merchant, and Tory MP. In 1680, he became a member of the Royal African Company (RAC), serving as deputy governor between 1689 and 1690. From 1680-1686, the RAC was transporting on average 5,000 slaves per year from Africa to the Americas. It is thought that, between 1672 and 1689, that 80,000 people were enslaved and transported across the Atlantic. Colston’s fortune, which he bequeathed to the city and charities, was built on vast, unimaginable suffering. The statue of Colston was erected in 1895, 174 years after Colston’s death. One of the plaques read: ‘Erected by citizens of Bristol as a memorial of one of the most virtuous and wise sons of their city AD 1895′. As historian Professor David Olusoga has explained, this was a conscious effort to mythologise and whitewash the bloody origins of the city’s wealth.

On the 9th December 2020, Jake Skuse, Rhian Graham, Milo Ponsford, and Sage Willoughby were charged with causing criminal damage in relation to the statue. On the 5th January 2022, the jury found the four Defendants not guilty of the offence.

How did this happen? On the face of it, one might think the elements of the criminal offence were clearly present. Before getting to that, it is important first to identify the offence charged. The relevant offence is established by section 1(1) of the Criminal Damage Act 1971 (CDA 1971):

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.

The offence is triable either way (Magistrates’ Court Act 1980, Schedule 1, para 29) and the maximum penalty is 10 years’ imprisonment (CDA 1971, s.4). The four Defendants were tried on indictment.

Breaking it down, the prosecution had to prove the following elements of the offence:

1. The Defendant(s) 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.

The Defendants did not dispute that the statue belonged to another, but the Defendants did dispute the other elements of the offence. Indeed, the Defendants even argued that the statue had not been ‘damaged’. They argued the statue had increased in value as result of their actions; for this reason, they had not damaged the statue. Going through all of these elements would make this blog post much too long, so let us focus on the final element: lawful excuse. We will focus on this because it is likely that this final element will be the core of any reference made by the Attorney-General to the Court of Appeal.

Lawful Defences

Three defences were raised in this case. All Defendants argued that they were entitled to use reasonable force to prevent the commission of a crime per s.3(1) of the Criminal Law Act 1967 (the first defence). Rhian Graham and Jake Skuse – but neither Milo Ponsford nor Sage Willoughby – gave evidence to the effect that they believed that they had a lawful excuse for the damage per s.5 of the Criminal Damage Act 1971 (the second defence). Finally, the jury had to consider whether a conviction would be a disproportionate interference with the Defendants’ Article 10 and 11 ECHR rights to free speech and assembly.

Defence One: Lawful Use of Force per s.3 CLA 1967

S.3(1) of the Criminal Law Act 1967 establishes a generic defence to criminal charges: that a defendant is entitled to use reasonable force to prevent the commission of a crime.

The Defendants argued that the displaying of the statue itself constituted the commission of one or two crimes. They alleged it amounted to the offence of displaying indecent material contrary to s.1 of the Indecent Displays (Control) Act 1981. Additionally, or alternatively, they argued that the displaying of the statue was an offence contrary to s.5 of the Public Order Act 1986: displaying a visible representation which is abusive, within the sight of a person likely to be caused distress by it.

For the s.3(1) defence to work, the Defendants had to allege that Bristol City Council were committing one or both of these crimes by displaying the statue. This was the basis for admitting the expert evidence of Professor David Olusoga. He explained to the court the history of the statue and the man it depicted, including his involvement in a company responsible for the brutal enslaving, trafficking, and murder of African people.

The jury had to answer three questions in deciding whether this defence was made out:

1. Did the Defendants honestly believe that a crime was committed? It does not matter whether a crime was committed, only that the Defendant subjectively honestly believed one was?
2. Were the Defendants’ actions to prevent one or both of the crimes in question?
3. If so, did the Defendants’ actions amount to a use of reasonable force, in the circumstances as perceived by the Defendants at the time?

The prosecution had the burden of proving that the answer was ‘no’ to at least one of these questions.

It should be noted that some legal commentators have suggested this defence is appropriate for a reference by the Attorney-General to the Court of Appeal. The third question contains the requirement that the force was ‘reasonable’. The judgment of Lord Hoffmann in the House of Lords in R v Jones and Others [2006] UKHL 16 (paras 70-93) suggests that ‘self-help’ in circumstances where there are processes to deal with crime will only exceptionally be ‘reasonable’. This rule of law has strong normative underpinning: namely, the state’s legitimate monopoly on violence. If this is right, the argument might be that this defence was improperly left to the jury. The argument goes that there was a process for dealing with the statue. The Defendants might have argued, in response, that those processes had failed. There is not the time nor space in this blog to explore this issue further – hopefully we will see more analyses of the case in the near future that shed more light on this issue.

Defence Two: Honest Belief in Consent per s.5 CDA 1971

Section 5 of the CDA 1971 sets out a defence to the charge of criminal damage under s.1(1). A person has a lawful excuse if:

They believe at the time that those whom they believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if they had known of the destruction or damage and its circumstances; or

At the time of the act or acts alleged to constitute the offence they believed:

That the property, right or interest was in immediate need of protection; and

That the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

Section 5(3) of the CDA 1971 clarifies that this defence includes a subjective element. For the purposes of the s.5 defence, it is immaterial whether the belief is justified or not, so long as it was honestly held by the Defendant.

Two of the Defendants argued that they honestly believed that the statue belonged to the people of Bristol, and that, had the people of Bristol known of the circumstances, they would have consented to what was done.

This is a rather ingenious defence, especially since the s.5 defence is so broadly drawn. This is to protect individuals who, for instance, take steps to knock down a neighbouring wall that they believe is going to collapse and cause more extensive property damage and injury. The CPS also give the example of firefighters causing property damage to protect other property (e.g. using hoses on buildings to prevent a fire spreading). If the ‘honest belief’ defence did not exist, mistaken firefighters and good Samaritan neighbours would be criminalised. The addition of the word ‘reasonable’ in the defence, as in the s.3 defence above, would impose some objective standard that might limit the defence’s application. But the s.5 defence is not so limited. It is a matter of the jury’s judgment as to the Defendants’ statements of belief at the time. The jury were perfectly entitled to find as they did. It might also be said that there is some sort of poetry in this defence. The legitimising fiction of the jury is that it stands as a representative of the community – one’s peers. This Bristol jury, representing the people of Bristol, decided that the people of Bristol would have consented to the removal of the statue, had they known of all the circumstances.

Defence Three: Disproportionate Interference with Convention Rights

Even if these first two defences failed, the jury would still have to consider whether a conviction would be a disproportionate interference with the Convention rights of the Defendants.

The rights engaged appear to be Article 10 (free speech), Article 11 (freedom of assembly and association), and potentially Article 9 (freedom of conscience and belief). These are ‘qualified rights’. Unlike the Article 2 right to life, the state can lawfully interfere with one’s qualified rights. For instance, the law of defamation is a restriction on the Article 10 right to free speech. When individuals are sued for defamation, they can raise their Article 10 rights as a defence; the court is then required to carry out a balancing act to determine whether the interference would be disproportionate. Qualified rights may be interfered with, but such interferences must be proportionate.

In this case, the jury needed to consider whether convicting the Defendants would disproportionately infringe their qualified rights. In the first place, it should be said that laws preventing criminal damage are permitted interferences. So the fact of the criminal offence existing in the first place is not a disproportionate interference. But it is inherent in the concept of proportionality that it would need to be assessed on a case by case basis. Just because laws against criminal damage per se are not disproportionate interferences, this does not mean that their application will always be proportionate in every case in all the circumstances.

In DPP v Ziegler [2021] UKSC 23, the UK Supreme Court confirmed that in criminal trials the court needs to consider whether convicting the Defendant would amount to a disproportionate interference with the Defendants’ exercise of their rights. The question to be asked is this: ‘is it necessary in a democratic society, in the interests of public safety or the protection of the rights of others, that the Defendants should be convicted for their actions?’ This requires the jury to balance the property rights of the owners of the statue against the rights of the Defendants to act according to their beliefs through speech and protest. The judge directed the jury that the question did ask whether the jury agreed with the Defendants’ beliefs or actions.

As the Secret Barrister has pithily put it, ‘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.’

The judge drew on the recent UK Supreme Court judgment to draw up a non-exhaustive list of factors for the jury to consider when answering this question;

– 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 of 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.

We do not know what the jury decided on this question. As noted above, they might have acquitted the Defendant on the basis that the prosecution failed to prove the lack of a lawful excuse, or even failed to prove one of the other elements of the offence. However, let us consider how one might decide to acquit on the basis of these factors. Plainly this is an important issue, and no doubt Professor Olusoga’s evidence highlighted this. It is also undoubted that the Defendants believed in the views that motivated the action, and that the method of protest (toppling that particular statue) was very important to the Defendants. It was, after all, a highly targeted form of protest: it was squarely aimed at the matter of which they disapproved.

The stickier questions are the first and last: balancing the Defendants’ rights against the property rights of the Council, and the threat of danger to the public from the actions. Reasonable people can disagree on these issues. It is certainly possible to reach a conclusion on both of those questions that leads to acquittal. There is a grey area between raucous but safe protest and dangerous rioting. Perhaps the jury considered the direct action to be carefully targeted, meaning the potential danger posed by the protest to the public does not outweigh the Defendants’ right to protest. That is one possible view of events that points in the direction of acquittal.

Regarding the first question, one’s view will vary according to how much one values property rights per se above other rights. The jury might (though we don’t know) have taken the view that the Council’s right to remove the statue itself (which it had long failed to do) did not in the circumstances outweigh the right of the protestors to protest via direct action against the Council’s failure to remove the statue. Of course, the jury might not have concluded this –– the jury might not have even got to this stage. But it is possible to see how they might have concluded that convicting the Defendants would have been a disproportionate interference with the Defendants’ rights.

Conclusion

As should be clear, this is not a case of jury nullification, which is when a jury decides to acquit a defendant in the absence of a defence, despite being ‘sure’ of a defendant’s guilt. In such instances, the jury is exercising its right to act according its conscience. This is the primary normative reason for having juries in the first place: their role as a residual safeguard against oppressive or tyrannous actions of the state. If you believe in trial by jury as a matter of principle, it is exactly this sort of outcome that you are signing up to. Rightly or wrongly, the argument in favour of juries is that they humanise the harsh edges of the criminal law, which is a blunt tool of social engineering at the best of times.

The jury is a black box. We simply do not know what defence it accepted. It might have decided that the prosecution failed to prove the lack of lawful excuse. It might have found that the prosecution failed to prove another part of the offence (e.g. that the statue was ‘damaged’). But given defences were left by to the jury to be considered, it would be wrong to call this a ‘perverse verdict’. There is no principled way of distinguishing this acquittal from other cases where the jury is allowed by the judge to consider defences.