Criminal Damage: The ‘Colston Four’,Proportionality and the Concerns that Linger

Facts

In Bristol, there had been a statue of Edward Colston. Reaching about six metres above the ground, it had stood tall on a stone plinth. At its base, a plaque had set Colston among the ‘most virtuous and wise sons’ of the city. Colston had been a wealthy merchant, philanthropist and politician. He had also been a trader of enslaved people.

Over time, the statue became the focus of repeated campaigns for its removal. At last, on 7 June 2020, around 10,000 people attended a march in Bristol, initiated by the Black Lives Matter movement. At about 2.30 pm, a large number of people gathered around the statue of Colston, including three of the four defendants. Two defendants had brought ropes to the scene. The crowd then moved forward and pulled down the statue. That action formed the basis of the first count contained in the indictment against three defendants, alleging criminal damage. The fourth defendant participated in rolling the statue through the streets to the harbour, where it was thrown into the water. That conduct formed the second count, again alleging criminal damage.

An application to stay the proceedings based on abuse of process having failed, the trial took place in the Crown Court at Bristol. The defendants put forward various submissions and defences. One defence was the prevention of crime, pursuant to section 3 of the Criminal Law Act 1967 in order to prevent Bristol City Council's public display of indecent matter, contrary to the Indecent Displays (Control) Act 1981. A different submission was that the defendants’ conduct had been in exercise of their rights under articles 9, 10 and 11 of the European Convention on Human Rights. The defendants argued that convicting them of the offences would be a disproportionate interference with those rights. The prosecution not having invited the judge to withdraw that issue from the jury's consideration, the judge left it to the jury and gave directions. On 5 January 2022, the jury acquitted all four defendants.

The Attorney General referred three questions of law for the opinion of the Court of Appeal.

Did the offence of criminal damage fall within the category of offences identified in James v DPP [2016] 1 WLR 2118 and DPP v Cuciurean [2022] EWHC 736 (Admin) where conviction of that offence was, intrinsically and without the need to consider separately proportionality in each case, a justified and proportionate interference with any rights engaged under articles 9, 10 and 11 of the Convention?

The Strasbourg case law could not logically be limited to public monuments (at [89]). The jurisprudence showed that articles 9, 10 and 11 of the Convention did not protect from prosecution and conviction conduct during a protest that caused damage to property, no matter the nature or extent of the damage (at [110]). However, that jurisprudence did not show that the Convention's protection was lost when any damage was caused during a protest, intentionally or recklessly and however minor. The Strasbourg court's approach was context-specific.

On the first question referred, if ‘significant damage’ were caused during a protest, prosecution and conviction would be beyond the Convention's protection because either the conduct was not peaceful or the prosecution and conviction would clearly be proportionate (at [115]). However, where criminal damage was minor or temporary, the Strasbourg case law indicated that there needed to be a case-specific assessment of proportionality, at least in relation to public property (at [116]). The circumstances meriting such an assessment would be very limited.

On the second and third questions, a judge could not direct a jury to convict, but a judge could withdraw an issue from the jury if no reasonable jury—properly directed—could convict (at [118]). As articles 9, 10 and 11 fell short of protests that were not peaceful, there could be no question of proportionality (at [120]). Prosecution and conviction in relation to significant damage to property, even in a peaceful manner, could not be disproportionate and the issue should not be left to a jury. It was, however, theoretically possible that cases alleging minor or trivial damage to property could arise in magistrates’ courts and, in such cases, conviction might be disproportionate (at [121]). It was essential for prosecutors to use care in their discretion to proceed to trial, applying the Code for Crown Prosecutors in the context of articles 9, 10 and 11 with a clear eye on proportionality. In the case under consideration, the damage had clearly been significant and the toppling violent, the protest itself not having been peaceful (at [122]-[123]). The conduct fell outside the Convention's protection and the issue of proportionality should not have been left to the jury.

Commentary

Against the background of protests, criminal trials and human rights, the Court of Appeal's decision is cautionary. The court affirms the view that questions of the proportionality of prosecution and conviction should be left to juries in a narrow category of cases, if ever. In the context of criminal damage, the category excludes all cases apart from those involving ‘minor or trivial’ damage (at [121]). The court is at pains to stress that we should not conflate the division between levels of damage with the statutory one between (i) criminal damage exceeding £5,000, an either-way offence by paragraph 29 of schedule 1 of the Magistrates’ Courts Act 1980, and (ii) criminal damage not exceeding £5,000, still an either-way offence but which section 22(2) provides shall be addressed as if it were triable only summarily.

Beyond the remark that the statutory division is not the right distinction (at [121]), the court offers little guidance. Granted, it seems to be a question of fact whether damage is less than ‘significant’, or whether it is ‘minor or trivial’. Yet it is easy to imagine difficult situations. Consider the recent case of a person charged with criminal damage for pouring human faeces over a memorial to Tom Moore, the fundraiser and Army officer who became widely known during the pandemic. There seems to have been no lasting reduction in the memorial's value and no disutility. That said, we might take into account any costs of cleaning, alongside the temporary loss of its function as an aesthetic and sentimental piece. One side suggests that it would count as ‘minor’ damage, whereas the other indicates that it would be ‘significant’.

The possibility of difficult cases is not fatal. As with many issues that arise in trials, some answers must rest on the facts of each case. The more pressing problem with the court's reasoning is that it lacks a clear conceptual framework. While it makes observations about not conflating distinctions, it offers little to justify why those distinctions exist. For example, the court seems to draw the category of ‘minor or trivial’ damage from the Strasbourg case law (e.g. at [110]). Noting that the Convention may protect conduct in some cases, the court then slides into the language of ‘transient or insignificant’ damage. Is that the same as ‘minor or trivial’? Are judges in the Crown Court (or tribunals in magistrates’ courts) required to consider transience in distinguishing between ‘minor’ and ‘significant’ damage? In every case or just some cases? Why is a judge – not a jury – deciding what seems to be a question of fact? While those questions might be pedantic, they emphasise the age-old importance of judges using precise, consistent language.

That is not the only aspect of the judgment that leaves questions in its wake. The Court of Appeal repeatedly sketches lines, but does not fill them in. For instance, it considers the ‘ordinary meaning’ of violence as including damage to property (at [87]). The court notes that a protest may not be ‘peaceful’ if it is ‘intimidatory or causes alarm or distress’. It goes on to remark that ‘it is possible to cause significant financial damage to property without being violent’, such as by taking ‘quiet and calm action’ (at [88]). In such cases, the court reasons that convictions would not violate the Convention. However, we do not receive clear citation of precedent to justify these observations, or the apparent distinction between ‘peaceful’ and ‘non-violent’ activity. These assertions do not represent trite law, so we should expect judges to substantiate them. They might have alarming consequences. Imagine a protest in which highly organised protestors gather, perhaps in stealth at night, to unscrew the fixtures of a sculpture and, with care, carry it away and lower it into the nearby lake. The costs of repair and potential water damage would likely be more than ‘minor or trivial’ damage. Yet it seems wrong to characterise the protest as violent or ‘non-peaceful’ – and, importantly, to take it outside the Convention. At a time of growing restriction of protest-related rights, it is concerning to read obiter remarks that non-violent protests may not be peaceful without a direct basis in precedent.

The court also refers to argument about public and private property. Without defining the terms, the court observes that it is ‘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’ (at [102]). No elaboration justifies this assertion. It is unclear why it is ‘difficult to imagine’. There may be qualities or principles, based on existing precedent and jurisprudence, that distinguish private from public property. For example, private property does not have public property's obvious association with the democratic accountability of the state and its institutions. Although we could justify damage to public property based on free and fair opposition to abhorrent state policies, it might be challenging to apply that justification to private property. Many questions appear; instead, the court makes a controversial observation and moves on.

The lack of elaboration continues. Analysing the Grand Chamber's reasoning in Perinçek v Switzerland (2016) 63 EHRR 6 that article 8 deserves ‘equal respect’ to article 10, the Court of Appeal remarks (at [66]):

We see no reason why the same approach should not be taken where the balance falls to be struck between articles 9, 10 and 11 on the one hand and the protection of property, for example under A1P1, on the other.

The analogy comes with no precedent or principle to support it. In the context of free expression, there are various reasons why rights to property should not be protected as rigorously as rights to privacy, not least because protecting public property imports the power of the state. If the court must make assertions, it should not forget that those assertions form obiter dicta and may wield undesirable influence in the future.

As the jury trial did for the boundaries of criminal trials, the Court of Appeal's judgment intensifies wider tensions in legal reasoning. In some ways, the court's reasoning is orthodox and narrow. There is a detailed recitation of the Strasbourg case law and a relatively tight focus on the issue of damage. The court uses a familiar analytical structure: review of precedent, deduction of the relevant principles, application to the case at hand, and firm answers to the questions that the Attorney General referred. But we also find wandering observations about wider themes, lacking elaboration or context. Tensions about public property, criminal trials and legitimate protest linger, as they have since the Crown Prosecution Service's original decision to bring charges. Bigger forces are at work in this area, squeezing themselves further into the confines of prosecutions, trials and – now – appellate courts.

Among those tensions, some might say that the Court of Appeal offers the safest way forward. The court's approach may avoid criticism that it is grand-standing or behaving ‘politically’. Yet consider what we do not receive. There is no recognition of the legal or social context. The court makes no reference, for instance, to the government's increasing hostility towards protests (as the Police, Crime, Sentencing and Courts Act 2022 makes plain). Similarly, there is no recognition of the significance of Black Lives Matter protests and anti-racist movements during the first stage of the pandemic in 2020, the social and cultural role of public monuments to colonial figures, or the heightened form of protection that may be necessary for protests against discrimination.

It is possible that those forms of recognition are missing because the court deems them unnecessary to its decision and, therefore, inappropriate. But, using that logic, so are the observations about private and public property, widely drawn distinctions between protests that are ‘non-violent’ yet ‘not peaceful’, and the statutory division between forms of criminal damage. Lower courts now face the dilemma of how they must fill in the lines. The Supreme Court may help by providing some clarification on the scope of Ziegler in decisions going forward. For all that, the current government remains insistent on using the criminal law to respond to protests. Criminal courts continue to act as a venue for the tensions that follow. On this issue, despite the Court of Appeal's caution, the case of the ‘Colston four’ will not be the last.