On 5th January 2022 at the Crown Court sitting at Bristol, four defendants were found not guilty of criminal damage even though they had readily admitted to removing a statue (of Edward Colston) from its plinth and tipping it into the harbour.

Following the acquittals, the Attorney General referred a point of law to the Court of Appeal. Whilst this could never result in the overturning of any acquittal, it was seen necessary in order to clarify the law for future cases should they arise.

The issue, in short, concerns the extent to which the European Convention on Human Rights sanctions the use of violence against property during protest, thereby rendering lawful causing damage to property which would otherwise be a crime.

Causing damage to property is a criminal offence pursuant to the Criminal Damage Act 1971 subject to a defence of “lawful excuse”.

The defence with which this case is concerned was that the damage done to the statue was lawful because it was a proportionate exercise of the right to protest. At a preliminary hearing, the defendants argued that the prosecution involved a disproportionate interference with their rights under Articles 10 and 11 of the Convention and was an abuse of process.

In response, the prosecution argued that the conduct in question was not peaceful and so was not protected by the Convention.

The trial Judge rejected the abuse of process argument but did not rule on this prosecution submission. He did however decide that that if there were an interference with Convention rights the jury could consider proportionality.

What did the Court of Appeal decide?

The Court concluded that the prosecution was correct in its submission that the conduct fell outside the protection of the Convention.

Specifically, the circumstances in which the statue was damaged did not involve peaceful protest. The toppling of the statute was violent.

Moreover, the damage to the statue was significant. The proportionality of the conviction could not arise.

Debate about the fate of the statue had to be resolved through appropriate legal channels, irrespective of a view that those channels were thought to have been slow or inefficient, and not by what might be described as a form of self-help.

It is not possible to know whether the jury acquitted on the basis of the Convention arguments or one of the others advanced at trial.

The questions on the reference turn on the extent to which the Convention could protect from conviction for criminal damage the use of violence against property in the course of a demonstration and/or causing significant damage to property.

The Convention does not provide any protection for violent/non-peaceful conduct in the course of protest. Neither would it be disproportionate to convict someone of causing significant damage to property or damage to private property. But the Strasbourg jurisprudence does not support the proposition that the protection of the Convention is lost (alternatively prosecution and conviction would always be proportionate for an offence of causing damage) when any damage is inflicted on property during protest, however minor.

The cases show that causing damage to State property which is transient or insignificant has not been treated as placing the perpetrator outside the protection of the Convention altogether.

The question whether somebody should be prosecuted for criminal damage is a matter for the Crown Prosecution Service (CPS) independently exercising its powers.

The CPS makes its decision applying the well-known evidential and public interest test to the question whether to prosecute. It must be sensitive to the Convention rights of protesters and its guidance demonstrates that decisions to prosecute will respect those rights.

The common law has always been sensitive to the position of protesters when it comes to both prosecution and sentencing. These features of our system are important because they show prosecutors should avoid prosecutions which are themselves disproportionate in Convention term and that disproportionate sentences are an unlikely outcome.

Reaction to the ruling

Raj Chada, a solicitor who acted in this case, comments:

“We are disappointed by the Court of Appeal Judgment. In our view, the evidence at the trial was that the toppling was not done violently. The clear view from an expert valuer, which we were prevented from relying upon during the trial, was that the value of the statue had increased exponentially after the toppling. The statue is still on public display as a monument to the evils of the slave trade, not as an obscene glorification of a slave trader. It is a shame that this is the Attorney General’s focus rather than the multiple crises facing this country.”

Rhian Graham, one of the Colston Four, said:

“Having been on the ground the day Edward Colston’s statue was toppled, I am still confident in saying it was not a violent act. It was the cathartic removal of a memorial to an oppressor of people and an abuser of power, who had too long loomed over the people of Bristol. The fact that it is gone is still right for Bristol.

The wider implications of the Court of Appeal’s judgement today remain to be seen but I am not disheartened. The positive impact of the toppling for both Bristol, and the anti-racism movement as a whole, can never be undone and this judgement cannot overturn the decision made by a jury of our peers. In court we relied upon more defences than just our Human Rights, such as ‘prevention of crime’ and ‘belief in consent’ and it may be that the jury did not consider the defence in question when deciding our fate. Their basis for acquittal we will never know.

What I would like to know is why our Government continues to spend time and taxpayer’s money on defending a memorial of a slave trader via this appeal case and the introduction of a maximum sentence of 10 years for damaging a statue (via the Police, Crime, Sentencing and Courts Bill) when there are so many more pressing issues at hand. My thoughts lie with the most vulnerable who will struggle to eat and stay warm this winter under the watch of our Tory Government.”


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