Criminal Damage: The ‘Colston Four’, Proportionality and the Concerns that Linger
| Author | Alex Benn |
| DOI | http://doi.org/10.1177/00220183221148562 |
| Published date | 01 February 2023 |
| Date | 01 February 2023 |
| Subject Matter | Case Notes |
Criminal Damage: The ‘Colston
Four’, Proportionality and the
Concerns that Linger
Attorney General’s Reference (No. 1 of 2022)
[2022] EWCA Crim 1259
Keywords
Criminal damage, protest, human rights, discrimination
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
convicting them of the offences would be a disproportionate interference with those rights. The prosecu-
tion 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.
1. 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 pro-
portionate interference with any rights engaged under articles 9, 10 and 11 of the Convention?
2. If not, and it was necessary to consider such issues in individual cases of criminal damage, what
principles should judges in the Crown Court apply when determining whether those rights were
engaged by defendants’potential convictions for purported acts of protest?
Case Note
The Journal of Criminal Law
2023, Vol. 87(1) 61–64
© The Author(s) 2022
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DOI: 10.1177/00220183221148562
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