by Yuan Yi Zhu
Thursday, 29
September 2022
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10:27

It’s official: toppling statues is illegal

A court has finally confirmed the obvious
by Yuan Yi Zhu
The toppled Edward Colston statue. Credit: Getty

Can you topple a monument and chuck it into the river because you happen to be engaged in political protest? This is the legal question which has flummoxed England’s finest legal minds until this week when the Court of Appeal, in an astonishing decision, ruled: not really.

To laymen, naïve about such things, it might have seemed like an open-and-shut case. But some of the finest minds of the English bar convinced themselves — and indeed a Crown Court judge — that the jury ought to decide whether convicting the Colston Four, as the Edward Colston monument topplers have became known, on a charge of criminal damage would inflict upon them a disproportionate “interference with their rights to freedom of thought and conscience, and to freedom of expression” under the European Convention on Human Rights. The jury took the hint, and duly acquitted.

The then-Attorney-General, Suella Braverman, asked the Court of Appeal to look at the question again, under a referral power given to her by Parliament. Much of the English bar took a dislike to her the day she was appointed — a KC compared her to a cleaner; others suggested that she was, worse yet, no better than a conveyancing solicitor. In their eyes, Braverman could do no right, so that her decision to make the reference to the Court was naturally savaged.

She was accused by MPs and lawyers alike of being an “idiot”, “shameless”, of playing politics with the law, even of threatening judicial independence. Lawyers who days previously were praising the argument advanced at the trial as “ingenious” and “novel” suddenly decided that the issues were really “straightforward” and “simple”. Meanwhile, the New Statesman gave the full-length feature treatment to one of the barristers involved — he “blew his hair from his eyes and sipped a pint of West Country ale” before carrying on the vital task of defending freedom, that sort of thing.

Almost the only criminal lawyer to publicly speak in support of the reference was Charles Wide KC, a retired Old Bailey judge. Having taken the trouble of actually going through the trial transcripts, he pinpointed several dubious features about the way the trial was conducted in a paper for Policy Exchange’s Judicial Power Project. Not only was irrelevant evidence admitted into the trial, but the defence was allowed to argue that the protesters genuinely believed they were preventing a crime by toppling the monument (the monument being ‘indecent’ or ‘abusive’), a point which the Attorney-General did not refer to the Court of Appeal because she thought the answer was so obvious.

But for all the legal obscurantism, the underlying issue is really very simple. Does the fact of being a protester, one of the twentieth-first century’s virtuous middle-class occupations, give the people the right to smash things up, as long as they were doing as part of a demo? As Professor Richard Ekins argued with typical understatement, “There are strong reasons to be concerned about a defence that effectively asserts a human right to damage or destroy property of which one disapproves, regardless of criminal law that otherwise makes this an offence.” 

The answer, if the rule of law means anything, has to be a resounding “no” (the Court of Appeal suggested that de minimis damage, such as painting slogans using water-soluble paint on a pavement, is potentially protected by the ECHR).

During the hearings, counsel for one of the Bristol defendants was asked if her argument would extend to other crimes such as common assault and theft if these acts were “causally connected to the demonstration”. She had no difficulty in answering in the affirmative. In other words, freedom of expression and of assembly could be used to justify punching people, as long as those doing the punching were protesters.

Now that the Court of Appeal has rejected such self-evidently ludicrous propositions, Braverman’s critics are mostly remaining mum. From the Shadow Cabinet to the Inns of Court, an uncomfortable silence reigns: the ‘cleaner’ might, after all, have been right on the law. But those who would trash the credibility of their profession to score petty political points should not be allowed to get away with their misdeeds.

Yuan Yi Zhu is a senior research fellow at the Judicial Power Project, hosted by Policy Exchange

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Linda Hutchinson
Linda Hutchinson
2 months ago

Sense at last. It was always patently obvious that the original verdict left us open to all sorts of criminal activities if they were done by a protester. Even those I know who supported the removal of the statue said it should have been done legally, and not preemptvely by a mob “speaking” for everyone else. I was amazed by the verdict and could not understand under what law this was allowed; it seems that it was not allowed under any law.

CHARLES STANHOPE
CHARLES STANHOPE
2 months ago

The perpetrators cannot however be retried for some reason, unlike the defendants in the Stephen Lawrence case for example. Do you happen to know why?

Linda Hutchinson
Linda Hutchinson
2 months ago

As I relied below to a similar post:
The ruling said that the jury might have considered defences other than the defence under review by the court; the appeal court was not looking at those defences,so the verdict stands.

CHARLES STANHOPE
CHARLES STANHOPE
2 months ago

Thank you so much.
It’s this sort of thing that brings the Judiciary into disrepute, along with judgements such as Widgery v Saville and the suspension of the age old principal of double jeopardy over the Lawrence affair.

The Law is an ass, as ‘we’ used to say.

Last edited 2 months ago by stanhopecharles344
Nicky Samengo-Turner
Nicky Samengo-Turner
2 months ago

the end of Jury Service Qualification was a massive negative, and the arrival of the internet and social media, and exponential decline in educational levels in Britain suggests that it should be reinstated… AND the ability to be tried twice must be abolished.

CHARLES STANHOPE
CHARLES STANHOPE
2 months ago

You are absolutely correct. I have had the pleasure of doing Jury Service twice! Once at the Old Bailey in one of the old ‘hanging courts’ (What nectar). Fortunately I was elected Jury Foreman, but for the reasons you have outlined above, it was quite a struggle to get a conviction, but we ‘got’ there in the end.
Sadly, no ‘black hat’ was required, although it should have been.

Nicky Samengo-Turner
Nicky Samengo-Turner
2 months ago

I had the pleasure of being tried at Crown Court for having a penknife in a locked briefcase in a car, stopped by Police, at Southwark Crown Court : I was acquitted, and was fortunate enough to be able to appear on TV and radio and write pieces in The Spectator, Telegraph, Mail and Standard about how dishonest the police are, and post to meeting the then Attorney General, Sir Dominic Grieve, saw the ” sec 44 Stop and Search” law removed from the statute book, as the police were abusing the law wholesale. Prosecuting Counsel said, in celebratory drinks we had straight after acquittal ( You should have seen the faces of plod… it made it all worthwhile!) that he had urged the CPS nNOT to proceed with a trial…. The jury saved me, and freedom!

Alan Hawkes
Alan Hawkes
2 months ago

The possibility of being tried twice, or tried again, following a previous acquittal recognised that the advancement of forensic science meant that definite, new evidence was available in some cases. It is a debateable point whether new evidence should be used in serious cases to finally convict the guilty, or not. The establishment of a Court of Appeal was initially opposed on the grounds that a changed decision devalued the courts.

Stephen Follows
Stephen Follows
2 months ago

Because they’re on the ‘right side of history’, probably.

Stephen Follows
Stephen Follows
2 months ago

a KC compared her to a cleaner’

There’s none so racist as the anti-racists…

Stephen Follows
Stephen Follows
2 months ago

(See also Rupa Huq.)

Linda Hutchinson
Linda Hutchinson
2 months ago

Racist remarks are ok if they are uttered by “progressives” – get with the programme.

Linda Hutchinson
Linda Hutchinson
2 months ago

I have just read the ruling, and it appears that the spurious argument that they pulled down the statue to prevent a crime was not actually challenged here
In submissions before us, both Mr Little KC for the Attorney General and Ms Montgomery KC for Ms Graham, one of the acquitted persons, (neither of whom appeared below) have referred to another of the defences advanced by the defendants.That defence was that the defendants used force in the prevention of crime pursuant to section 3 of the Criminal Law Act 1967 to prevent the public display by Bristol City Council of indecent matter contrary to the Indecent Displays (Control) Act 1981. The Attorney General did not refer a question relating to that defence because, in her view, the law is clear that the defence should not have been left. The reference procedure is not a mechanism to obtain a restatement of established law. We have not heard argument on the issue. Should the same issue arise again the point will need to be argued at trial and, if necessary, on appeal.
Ther ruling concerned:
the extent to which the European Convention on Human Rights (“the Convention”) sanctions the use of violence against property during protest, thereby rendering lawful causing damage to property which would otherwise be a crime.
However the court did rule tahat the protest was not peaceful and the actions were not protectedf by the ECHR:
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. On both these bases we conclude that the prosecution was correct in its submission at the abuse hearing that the conduct in question fell outside the protection of the Convention. The proportionality of the conviction could not arise for consideration by the jury. We emphasise that this is not to suggest that the defendants were in fact guilty of the offence of criminal damage. We have explained (see [2] above) that the jury was concerned with a range of defences.

Steve Murray
Steve Murray
2 months ago

Thanks Linda, for these detailed insights into the finer points.

Paul Brown
Paul Brown
2 months ago

So, on this reading, the headline of this discussion is optimistically misleading. The toppling activities are unprotected, but only on narrow grounds? They’re otherwise free to go about their business?

Peter Johnson
Peter Johnson
2 months ago

A good decision at last. It just underlines the progressive double standards – a conservative’s speech is violence – but a progressive’s actual violence is just a healthy form of self expression.

Last edited 2 months ago by Gunner Myrtle
Jeremy Bray
Jeremy Bray
2 months ago
Reply to  Peter Johnson

Indeed that is defining characteristic of “progressives”; dishonesty of argument.

Milton Gibbon
Milton Gibbon
2 months ago

Does this mean that they will be locked up?
That is the only logical conclusion and anything else will be seen as a victory for vandals.

Linda Hutchinson
Linda Hutchinson
2 months ago
Reply to  Milton Gibbon

No. The ruling said that the jury might have considered other defences other than the defence under review by the court; the appeal court was not looking at those defences,so the verdict stands.

j watson
j watson
2 months ago

Trial by jury does occasionally throw up an anomaly and a jury going against what might be deemed the correct application of the law not unprecedented. Shouldn’t that be cause for pride that we have this pillar of liberty even if occasionally we disagree with the outcome?

For whatever reason this jury felt the action did not warrant a criminal record. Perhaps, but we don’t really know, the context to how long the Colston statue had remained despite pretty clear-cut local discontent something they heavily weighted? It doesn’t mean open season on similar acts.

Richard Powell
Richard Powell
2 months ago

It was actually a QC who compared her to a cleaner; there weren’t any KCs at that time, just as there aren’t any QCs now.

Arkadian X
Arkadian X
2 months ago

Didn’t know the judgment was due today. Let’s see what prominence it will be given…

Stephen Follows
Stephen Follows
2 months ago
Reply to  Arkadian X

Bet you don’t see it mentioned anywhere else at all.

Claire D
Claire D
2 months ago

It was reported in The Times, Telegraph and the BBC News website yesterday.

Katy Hibbert
Katy Hibbert
2 months ago

Excellent news. Here’s hoping the Court of Appeal shows similar common sense and finds in favour of Arron Banks in his libel case against the evil, libelling liar Carole Codswallop. The High Court “judge” was a demented, biased Remoaner leftard.

Claire D
Claire D
2 months ago

Oh joy, a bit of irony, great first paragraph, thank you.

Richard Goodman
Richard Goodman
2 months ago

This article actually goes some way to restoring the regard I used to have for journalism!

R Wright
R Wright
2 months ago

Lower courts are famous for virtue signalling judicial activism and juries. The higher courts have always been far more rigorous at actually interpreting the law, stating the obvious.

Rob Nock
Rob Nock
2 months ago
Reply to  R Wright

Always? Supreme Court in the no to prorogation case?

Julian Pellatt
Julian Pellatt
2 months ago

Good decision. And well done to Suella Braverman for living up to her name!
Isn’t it time that the UK dumped European Convention on Human Rights?