AG Ref No. 1 of 2022
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon CJ |
| Judgment Date | 28 September 2022 |
| Neutral Citation | [2022] EWCA Crim 1259 |
| Docket Number | Case No: 202201151 B3 |
| Court | Court of Appeal (Criminal Division) |
[2022] EWCA Crim 1259
The Lord Burnett of Maldon,
LORD CHIEF JUSTICE OF ENGLAND AND WALES
Mr Justice Holgate
and
Mr Justice Saini
Case No: 202201151 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON A REFERENCE ARISING FROM A PROSECUTION IN
THE CROWN COURT AT BRISTOL
His Honour Judge Blair KC
T20210063
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom Little KC and Victoria Ailes appear on behalf of The Attorney General
Clare Montgomery KC and Blinne Ní Ghrálaigh (instructed by Hodge, Jones and Allen) appear on behalf of The Acquitted Person and Rhian Graham
Louis Mably KC appears as Advocate to the Court
Jude Bunting KC and Owen Greenhall provided written submissions on behalf of Liberty
Hearing Dates: 29 and 30 June 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 12 noon on 28 September 2022.
This is a reference in which His Majesty's Attorney General seeks the opinion of the court on three questions of law which are said to have arisen from a trial in Bristol Crown Court of four protestors for allegations of criminal damage to a statue of Edward Colston. The issue, in short, concerns 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. Causing damage to property is a criminal offence pursuant to the Criminal Damage Act 1971 subject to a defence of “lawful excuse”.
On 5 January 2022 the jury acquitted the four defendants. A range of defences was run at trial. The defence with which this reference is concerned was whether conviction for the damage done to the statue was a disproportionate interference with the defendants' right to protest. We are not concerned with the other defences. It is impossible to know whether the jury acquitted on that basis or one of the others. This reference can, in any event, have no bearing on the acquittals.
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.
The Questions in the Reference
The Attorney General refers the following questions for the opinion of the court pursuant to section 36 of the Criminal Justice Act 1972:
“ Question 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’)?
Question 2
If not, 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?”
Factual Background
Edward Colston (1636 to 1721) was a Bristol-born English merchant. He accumulated a large fortune in a wide range of trading activities which included, through the Royal African Company, the transportation of African slaves to the West Indies and America. He was one of the biggest philanthropists of his day giving substantial sums for charitable purposes in Bristol and elsewhere. In 1895 a bronze statue of him was erected in Bristol to mark his philanthropy. In 1977 it was designated as a Grade II listed structure.
The statue was about 2.5m high placed on top of a stone pedestal nearly 1m high which stood on a large, carved, octagonal stone base with plaques about 2.5m high. The top of the statue was thus about 6m above ground level. The statue was owned by Bristol City Council and held on trust for the people of Bristol. From the 1990s the continued presence of the statue and its plaque became a subject of controversy. Some campaigned for its removal from public display because of the tainted source of much of Colston's wealth. The inscription on its plaque described Colston as “one of the most virtuous and wise sons” of Bristol.
At around 14.00 on Sunday 7 June 2020 a peaceful march attended by about 10,000 began at College Green, Bristol. It was prompted by the Black Lives Matter movement. It was a community event with a friendly atmosphere. The majority of those peacefully protesting had passed the Colston statue when at about 14.30 a large number of people congregated around the statue, including three of the four defendants.
Ms Graham and one of her co-defendants had brought ropes to the scene which were used to topple the statue. That is what happened after the ropes were tied around it and about 20 people, including Ms Graham, pulled it and its stone plinth to the ground. The statue was damaged. Ms Graham and two co-defendants were charged on Count 1 on the indictment with this conduct.
A fourth defendant took part in rolling the statue through the streets to the harbour, where it was heaved into the water. This formed Count 2 of the indictment. Ms Graham was not involved in that part of the protest.
Both counts alleged damage to property contrary to section 1(1) of the Criminal Damage Act 1971. The particulars of Count 1 were that the first three defendants:
“without lawful excuse jointly and together with others, damaged a statue of Edward Colston a listed monument belonging to Bristol City Council intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged.”
The Proceedings in the Crown Court
In advance of the trial, Ms Graham and a co-defendant made an application to stay the proceedings as an abuse of process. One of the grounds advanced was that the prosecution involved a disproportionate interference with their rights under articles 9, 10 and 11 of the Convention. Their submissions relied upon the decision of the Supreme Court in DPP v. Ziegler [2022] AC 408 as laying down legal principles of general application to any trial concerning conduct during the course of a protest engaging articles 10 and 11. They submitted that the prosecution amounted to a restriction interfering with those rights and so would not be justified unless necessary in a democratic society and proportionate in the light of a fact-specific evaluation of the circumstances of the case.
In its written response to this application the prosecution submitted:
“The alleged offending in this case was neither peaceful or transient in its effect and, on that basis, this case [Ziegler] can be distinguished. Peaceful obstruction of the highway by protestors does not mirror the instant criminality alleged, which we note, was extraneous to the peaceful BLM march that preceded it”.
At this point in their submissions the prosecution was making the straightforward point that the conduct in question was not peaceful and so not protected by the Convention. In the alternative the prosecution submitted that even if articles 10 or 11 were engaged, the trial process could accommodate the issue. The principal prosecution argument was founded on [69] of Ziegler where Lord Hamblen and Lord Stephens summarised Strasbourg jurisprudence on conduct by protestors which falls outside the protection of the Convention. Article 11 only protects peaceful protest. By reference to Kudrevicius v. Lithuania (2016) 62 EHRR at [92] they noted that peaceful assembly:
“does not cover a demonstration where the organisers and participants have violent intentions. The guarantees of article 11 therefore apply to all gatherings except those where the organisers and participants have such intentions, incite violence or otherwise reject the foundations of a democratic society.”
They also noted the observations of the Strasbourg Court in Primov v. Russia (App No. 17391/06) at [155] that an individual does not lose the protection of article 11 in circumstances where, although the organisers had no violent intentions, there are sporadic acts of violence of others during a demonstration “if the individual in question remains peaceful in his or her own intentions and behaviour.”
The judge rejected the abuse of process application. He did not rule on the prosecution's first submission that the protest had not been peaceful and so fell outside the protection of the Convention altogether, but accepted that if there were an interference with Convention rights the jury could consider proportionality. It was on that basis that the defence was eventually...
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