Criminal damage and protest law
Professor Thomas Lewis examines the effect of the Colston Four case
The Court of Appeal has ruled on a charge of criminal damage - where the damage caused is significant, and/or is caused by violence to property, there is no need for the court to engage in a separate analysis of whether a conviction would be in breach of human rights.
The Colston Four
The case – Attorney General’s Reference (No. 1 of 2022)  EWCA Crim 1259 –concerned the trial at Bristol Crown Court of the ‘Colston Four’ who had been acquitted of the criminal damage to a statue of the seventeenth century slave-trader Edward Colston during Black Lives Matter protests in June 2020 – leading some sections of the press and certain politicians to question the correctness of the jury’s verdict, since the facts of the case were undisputed.
The trial judge had asked the jury whether they were sure that convicting the defendants would be a proportionate interference with their Convention right to, among other things, freedom of expression (Article 10). This prompted the Attorney General to seek clarification on the extent to which human rights must be taken into account by a court on a charge of criminal damage arising from public protest.
The court was at pains to stress, in addition to the human rights argument, several other defences had been put before the jury which could have led to the defendants’ acquittal, and it was therefore impossible to say which had been persuasive. Moreover, and in any event, as an Attorney General’s reference, the court’s judgment could not affect the jury’s verdict.
The effect of DPP v Ziegler  UKSC 23
Clare Montgomery KC, counsel for one of the Four, drew support from the Supreme Court’s judgment in DPP v Ziegler  UKSC 23 that the offence of obstruction of the highway, caused by peaceful protest, did require a separate fact-specific proportionality assessment be undertaken. But the Court of Appeal held Ziegler did not lay down a rule of general application. This question, rather, depends on the specific characteristics of the criminal offence in question.
The Court of Appeal reviewed the Strasbourg case-law relating to protests around public monuments in which criminal convictions had been secured, and Article 10 found to have been engaged. It was noted these cases concerned minor defacements, (e.g. spray-painting) which, coupled with often very severe penalties, resulted in breaches of Article 10. It held this case law did not support the argument that violently caused and/or significant damage to public monuments could fall within the protective scope of the ECHR. Accordingly, since Convention rights were not engaged, in a Crown Court trial, these questions should not be left to the jury.
The court did, however, recognise in cases involving ‘minor or trivial damage’ to public property there was a possibility a conviction for criminal damage would not constitute a proportionate response. Such cases, the Court suggested, would arise in the Magistrates’ Court, since the ‘threshold of “significant damage” would be crossed a long way below the statutory divide’ as to mode of trial for criminal damage. However, it should be noted s50 of the Police, Crime, Sentencing and Courts Act 2022 makes criminal damage to a ‘memorial’ - no matter what the monetary value, and therefore including even very minor damage - potentially triable in the Crown Court, with its attendant greater sentencing powers. Section 50 was passed explicitly to enable heavier sentences to be passed in cases where the monetary value of damage to monuments was very low, e.g. the graffitiing of the statue of Winston Churchill in Parliament Square with the words ‘Is A Racist’ during protests in 2020. It appears such minor-damage protest cases will now require a separate human rights analysis.
In any event, it will be incumbent upon the trial court (Magistrates’ or Crown) to determine whether the damage, when not caused violently, is ‘significant,’ in order to be able to decide whether a separate proportionality exercise is required. This grey area will no-doubt cause uncertainty, and possibly lead to future challenge. Perhaps because of the difficulties of negotiating this area, the court issued a plea to prosecutors, urging prosecutorial discretion be ‘exercised carefully… with a clear eye on the proportionality of prosecution and conviction.’ Clearly, dealing with these issues upstream in this way would be a desirable outcome.
Thomas Lewis is a Professor at Nottingham Law School, Nottingham Trent University: ntu.ac.uk/law