Court of Appeal concludes in AG referral of jury acquittal of Colston 4 that ECHR rights were not engaged where damage to property was criminal

4 October 2022 by

AG’s Reference arising from a prosecution arising in the Crown Court at Bristol 28 September 2022

Four defendants were acquitted by a jury in Bristol Crown Court following their trial for allegations of criminal damage on 7 June 2020 to a statue of the English merchant Edward Colston (1636-1721). The story has been widely covered elsewhere so I will limit this post to a discussion of the reference itself.

The application with which this reference was concerned was whether conviction for the damage done to the statue was a disproportionate interference with the defendants’ right to protest, under the free speech Article 10, right to gather under Article 11, and the right to freedom of conscience under Article 9.

The Attorney General has the power to refer verdicts to the Court of Appeal under section 36 of the Criminal Justice Act 1972 in the event of acquittals to correct mistakes of law so that those mistakes are not perpetuated in the courts below.

It is important to note at the outset that this reference was not directed to the jury’s verdict itself. It was to clarify the law on public protest to avoid confusion.

The Court of Appeal has provided its own press summary of their decision. In the following paragraphs I gather together the salient observations in this decision.

The main issue in this reference by the Attorney General concerned the extent to which the European Convention on Human Rights (ECHR) sanctions the use of violence against property during protest, thereby rendering lawful the causing of 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”.

A leading case on this is the Supreme Court decision in DPP v. Ziegler [2022] AC 408. In that case the Court decided that a conviction for any offence arising out of a peaceful protest involved a restriction upon the exercise of rights under articles 9, 10 or 11 of the Convention and consequently, the prosecution should prove that the conviction would be justified and proportionate, through a fact-sensitive assessmentBut this has not been followed subsequently. In DPP v. Cuciurean [2022] EWHC 736 (Admin); [2022] 3 WLR 446 the Divisional Court rejected a similar submission, holding that the decision of the Supreme Court in Ziegler did not lay down any such broad principle, being concerned solely with section 137 of the Highways 1980 Act: unlawful obstruction of the highway. The problem was that these points about the relationship of Convention rights to prosecution for criminal damage were subject to appeal before the Supreme Court, but Mr Cuciurean decided not to proceed with his appeal (DPP v Cuciurean [2022] EWHC 736 (Admin)). The same points arising from the decision in Zeigler were argued in the Supreme Court in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill on 19 and 20 July 2022. Judgments were still awaited at the time of this hearing. The Court of Appeal mentioned this “only to put down the marker that whatever we may say or decide regarding the reach of Zeigler is likely soon to be subject to some clarification from the Supreme Court”.

In the trial of the “Colston Four” HHJ Blair KC directed the jury that it should only convict if the prosecution had established to the criminal standard that a conviction for criminal damage would not be a disproportionate interference with the defendants’ rights to conscience, expression and protest under the ECHR.

The AG’s reference

It is important to stress that this reference has no bearing on the specific “Colston Four” acquittals and was confined to the Convention issue.

Giving the judgment of the Court, Lord Burnett of Maldon CJ noted that the ECHR does not protect violent protest and that significant criminal damage may be defined as violent. There is relatively little Strasbourg authority on cases of physical damage caused during protest.  But in the case of Handzhiyski v. Bulgaria (App. No. 10783/14; (2021) 73 ECHR 15) the Strasbourg Court 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 Court of Appeal’s emphases]

This statement, said the Court of Appeal, was consistent with the proposition that a general measure may criminalise the destruction of, or significant damage to, a public monument, so that proof of the ingredients of that offence sufficiently addresses the proportionality of a conviction.

Accordingly, compatibly with the Convention, a criminal offence may comprise ingredients, the proof of which is sufficient to render a conviction proportionate to any interference with rights under Articles 9, 10 and 11. A fact-sensitive proportionality assessment is unnecessary for a person to be convicted of such an offence. [para 78]

conviction for the conduct would not offend the Convention rights of the perpetrator. If it was violent and not peaceful it would fall outside the protection of the Convention altogether. If significant damage were caused, even if “peacefully”, it would not even be arguably disproportionate to prosecute and convict for criminal damage. [para 88]

And, concluding their review of Strasbourg case law on this point, the Court of Appeal found that there was no

“clear and constant” jurisprudence of the Strasbourg Court that suggests that damaging private property during protest attracts the protection of the Convention in the first place or, in the second, that prosecution and conviction for damaging private property would be disproportionate even if it did. That is unsurprising because in addition to the usual questions about the applicability of a Convention right and then proportionality the A1P1 rights of the non-state owner are in play. We find it difficult to imagine that the Convention could ever be used to avoid conviction for damaging private property, even if very rarely it might be when considering damage to public property which is not significant. For domestic purposes, in our view, that is the position. [para 102]

Here are the questions put to the Court in the reference, each followed with the CA’s conclusion.

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’)?

The CA found that prosecution and conviction for causing significant damage to property during protest would fall outside the protection of the Convention either because the conduct in question was violent or not peaceful, alternatively (even if theoretically peaceful) prosecution and conviction would clearly be proportionate.

2. If the answer to Q1 is negative and it is necessary to consider human rights issues in individual cases of criminal damage, 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. Question 3: If those rights are engaged, under what circumstances should any question of proportionality be withdrawn from a jury?

Taking these two questions, the Court of Appeal concluded that the ECHR does not provide protection to those who cause criminal damage during protest which is violent or not peaceful. Articles 9, 10 and 11 were not engaged in those circumstances and no question of proportionality arose. Moreover, prosecution and conviction for causing significant damage to property, even if inflicted in a way which is “peaceful”, could not be disproportionate in Convention terms.

As for the “Colston Four” case, this was did not involve the destruction of the statue, but the damage that was caused was clearly significant.

Pulling this heavy bronze statue to the ground required it to be climbed, ropes attached to it and then the use of a good deal of force to bring it crashing to the ground. Handzhiyski makes it clear that the debate about the fate of the statue had to be resolved through appropriate legal channels, irrespective of evidence that those channels were thought to have been slow or inefficient, and not by what might be described as a form of criminal self-help. [para 122]

A postscript. As one commentator has observed, it seemed initially as if the jury had returned a “perverse verdict” in the trial of the Colston Four. Later it transpired that given the judge’s direction, the jury had not returned a perverse verdict at all. I discuss what happens when a “perverse verdict” is given in my discussion with former Bailey Court Judge Wendy Joseph KC in Episode 166 of Law Pod UK.

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