The Colston Four

In this debut article Charlie Jones comprehensively examines the contentious case of the Colston Four.

Facts:
At the peak of the Black Lives Matter protests across the country in the summer of 2020, the statue of
Edward Colston, a seventeenth century ‘philanthropist’ who generated much of his wealth from exporting
slaves, was brought down by around 20 people and thrown into the harbour. On the 5 January 2022 at
Bristol Crown Court, four defendants were acquitted by a jury from prosecution under the Criminal
Damage Act 1971.
The Attorney-General’s reference asks whether a prosecution for criminal damage arising out of protests
are incompatible with the protections guaranteed under the European Convention of Human Rights, or
alternatively, that such a prosecution is a legitimate and proportionate interference with the rights set out.
Specifically, the right to freedom of thought, conscience, and religion (Article 9), Freedom of expression
(Article 10), and the right to association and assembly (Article 11).

Issues:
The Criminal Justice Act 1972 section 36 allows the Attorney General to refer to the court a point of law
arising from an acquittal. In this case Lord Burnett CJ looked to answer three questions.

1. Does a prosecution of criminal damage amount to a justified and proportionate interference with
the rights under Article 9, 10 and 11, in line with James v DPP [2016] 1 WLR 2118 and DPP v
Current  [2022] EWHC 736 (Admin)? If it falls outside of these cases, does a prosecution of
criminal damage in cases of protest require a case-by-case consideration to determine whether a
right has been legitimately interfered with?

2. If human rights issues need to be considered in individual cases of criminal damages – what
principles should judges in the Crown Court apply to determine whether the rights under Article 9,
10 and 11 have been legitimately interfered with or not?

3. If the aforementioned rights are engaged – under what circumstances should any question of
proportionality be removed from the jury?
Although this case questions one of the defences raised by the protestors at trial, it does not render their
acquittal unlawful or them guilty, as a number of defences were considered at trial.

The first question
The Court disagreed with Ms Montgomery KCs submission that Cuciurean was wrongly decided, and that all
offences arising from protest require a fact-sensitive assessment (DPP v Ziegler [2022] AC 408). It was
held that there is no requirement on prosecutors to prove that all tried offences arising out of non-violent
protest are proportionate with the rights laid down in Articles 9, 10 and 11.
Analysing Strasbourg jurisprudence, the court held that where a person faces imprisonment for an offence
arising out of protest, a ‘stricter scrutiny’ should be given to whether an interference with convention
rights is proportionate (Animal Defenders International v United Kingdom (2013) 57 EHRR 21).
However, this does not instantly require that a fact-sensitive assessment needs to occur in each case.
Where the proven elements of the relevant offence by themselves address the need for proportional and
just interference with convention rights, a fact-sensitive assessment is not required, as interference has
been rendered proportionate by proving each ingredient of the offence.

Furthermore, the fate of a public monument should be resolved through the appropriate legal channels
rather than through violence. To the Court it was clear that the pulling down of a statute is a violent
measure that falls outside of convention protection. ‘conviction for violent conduct would not offend
the convention rights of the perpetrator. If it was violent and not peaceful it would fall outside the
protection of the convention altogether. If significant damage were caused, even if “peacefully”, it
would not even be arguable disproportionate to prosecute and convict for criminal damage’ [88].
Articles 9, 10 or 11 does not protect conduct during a protest that results in damage to property from
prosecution. However, the protection of rights is not removed merely because of any damage to property.
Strasbourg precedent shows that damage which is ‘transient or insignificant’ does not negate the
protection under the convention. Instead, a proportionality exercise of prosecution, conviction and
punishment are considered.

Turning to domestic law, Lord Burnett emphasises the sensitivity of the law to the position of protestors
(R v Jones (Margaret) [2007] 1 AC 161). Society protects the right to protest so long as the protestors act
within the reasonable confines of the law. However, the honourable intentions and motives of such
perpetrators should be properly taken into account, rendering disproportionate sentencing unlikely.
Summarising at [166], the court holds that whilst the proven elements of criminal damage do not always render at interference with convention rights proportional and legitimate, the circumstances where a fact-
sensitive assessment is requires, as set out in Ziegler, are extremely limited.

The Second and Third Questions
The question of proportionality should rarely be left to the jury, and proportionality is more of a
prosecutorial decision than one for judges. This is based on two factors; the fact that the convention does
not protect actual damage that is more than transient, and that trials in the Crown Court are damages that
exceeds £5,000. It is then near impossible for a question of proportionality to be left to the jury.
Instead, Crown Prosecution Service should exercise prosecutorial discretion in deciding what trials to
proceed with, with a clear emphasis on the proportionality set out Articles 9, 10 and 11.

Whilst the acquittals of the Colston Four remain safe, it seems the court is drawing a line in the sand to prevent further destruction of public property in the name of civil unrest or protest. Although the protections of Articles 9, 10 and 11 are not completely removed, the obstacles that have to be overcome for these rights to be engaged are many. It seems only non-permanent or trivial damage will engage convention rights in cases of criminal damage.

Depending on your views, you may see this as necessary for civil order. Alternatively, you may see this decision as removing the teeth from Articles 9, 10 and 11. It cannot be ignored that this judgment arrives at a time of political uncertainty about the future relationship between the European Court and Parliament. Although Dominic Raab’s ‘Bill of Rights’ proposal was shelved as one of the first moves by the Truss government, it would be surprising if no action was taken regarding the convention before the next general election. Over the coming months, the convention and the rights guaranteed by it are likely to play an even bigger role in political discourse, particularly with the revival of the government’s Rwanda deportation strategy.