Kieron Spoors – The ‘Colston 4’ and the Right to Protest: A Case Comment on Attorney General’s Reference [2022] EWCA Crim 1259

Introduction

On 5 January 2022, a jury in Bristol Crown Court acquitted four defendants (the Colston Four) following their trial for allegations of criminal damage to a statue of Edward Colston on 7 June 2020. Following this, the Attorney General sought clarity in the law concerning the relationship between criminal law and a defendant’s rights to freedom of conscience, to protest and to gather under Articles 9-11 of the European Convention of Human Rights (“ECHR”).

The Court of Appeal in Attorney General’s Reference on a Point of Law (No.1 of 2022) [2022] EWCA Crim 1259 (“AG’s Reference”) found itself grappling with the difficult act of balancing individual rights with the public interest.

Questions referred to the Court of Appeal

The Attorney General referred three questions to the Court of Appeal pursuant to section 36 of the Criminal Justice Act 1972 ([4]):

  1. Does the offence of criminal damage fall within the category of offences where a conviction for the offence is a justified and proportionate interference with any rights engaged under Articles 9-11 ECHR?
  2. If not, and it is necessary to consider human rights issues in individual cases of criminal damage, what principles should Crown Court judges apply in determining whether Articles 9-11 ECHR are engaged by a potential conviction of defendants purporting to be carrying out an act of protest?
  3. If those rights are engaged, under what circumstances should any question of proportionality be withdrawn from the jury?

The Court disagreed with Counsel’s suggestion that it had no jurisdiction because the questions did not arise in the case ([17]-[18]). The prosecution’s case was that the Defendant’s conduct did not attract protection under the Convention ([19]). That was at the heart of the Attorney General’s submission and the questions referred to the Court ([21]).

Question 1

Question 1 asked whether, once the prosecution had proved criminal damage, no question of proportionality under the Convention could arise or if a proportionality assessment was always required ([114]). Lord Burnett CJ, delivering the judgement, addressed this question in parts.

  • Categories of offence

The Court considered James v DPP [2016] 1 WLR 2118. This case distinguished between two categories of offence ([46]). First, there were offences where proportionality was met by proof of the terms of the offence-creating provision (James, [35]). Second, there were offences where conduct amounting to an offence engages freedoms of expression and assembly, but the ingredients do not in themselves render a prosecution proportionate ([34]). Lord Burnett observed that some legislation provided a defence enabling a fact-specific proportionality assessment to be made (AG Reference, [46]), later noting that a lawful or reasonable excuse defence offers a means of assessing proportionality if the prosecution must prove that a conviction would be a proportionate interference with Convention rights ([52]).

  • General measures

The Court looked at how proportionality is addressed when general measures are adopted. Noting paragraph [53] of the Strasbourg Court’s decision in Handzhiyski v Bulgaria (2021) 73 ECHR 15 , it held that it was consistent with general measures criminalising the “destruction of, or significant damage to” a public monument, such that proving the ingredients of the offence would sufficiently address the proportionally of a conviction (AG Reference, [74]). A proportionality assessment is unnecessary for such offences ([78]).

  • Scope of protection

Critical to the Court’s answer to Question 1 is its analysis of the scope of protection given to protests. The Court said that Article 11 protects the right to “peaceful assembly” ([82]). This protection is not lost because of “sporadic violence” or the acts committed by others, provided the individual remains peaceful in their intentions and behaviour ([84]).

The Court stated that violence is “not confined to assaults on the person” but can include “damage to property” ([87]). It reasoned that conduct leading to “destruction” or “significant financial damage” to property might not be described as peaceful, even if it was not violent. It would fall outside the protection of the Convention or at least justify proportionate measures criminalising such conduct ([88]). This did not mean carrying out a proportionality exercise in every prosecution ([89]). A review of Strasbourg jurisprudence supported the Court’s view that property damage attracts no Convention protection ([102]). The Court observed, however, that protection might not be lost if the damage is “transient or insignificant”, calling for a proportionality exercise ([110]).

  • Answer to Question 1

The Court held that the offence of criminal damage does not automatically fall within the category of offences in which proof of the elements is sufficient to justify any conviction as a proportionate interference of Articles 9-11 without a fact-specific proportionally assessment ([116]).

The Court distinguishes damage that is “significant” and “minor”. If conduct during protest causes “destruction” or “significant damage” to property, it would fall outside the protection of the Convention because it was violent, or prosecution and conviction would be proportionate ([115]). Where, however, the damage is “minor or temporary”, there would need to be a case-specific assessment of the proportionality of conviction ([116]). The Court did not expect prosecutions in those cases would be launched as they would be disproportionate, meaning the circumstances requiring a proportionality assessment would be “very limited” (Ibid.).

Questions 2 and 3

Taking Questions 2 and 3 together, the Court held that since the Convention does not protect conduct that is violent or not peaceful, Articles 9-11 are not engaged, and no proportionality question arises. Furthermore, prosecution and conviction could not be disproportionate ([120]). The Court decided that the nature of Crown Court cases meant that, for either reason, the question should not be left to a jury (Ibid.). While it was “theoretically possible” that cases of minor damage could arise in the Magistrate’s Court, the Court reiterated the importance of prosecutorial discretion on proceeding to trial ([121]).

Analysis

Before addressing its decision, it is welcoming that the Court clarified DPP v Ziegler [2021] UKSC 23. Applying DPP v Cuciurean [2022] EWHC 736 (Admin) para [89(1)], it held that Ziegler did not lay down a principle that the prosecution has to prove that a conviction would be proportionate to the defendant’s Convention rights for all offences arising out of ‘non-violent’ protests ([40]). Sensibly, the Court confined Ziegler to its specific offence, avoiding a principle applying to all offences. All eyes turn to what clarification the Supreme Court gives in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill ([41]).

Turning to the decision, the Court gave sound answers to the three questions while provoking further questions about the right to protest and property damage. Firstly, if Convention protection in property damage protest cases is determined by whether the damage is “significant”, how is that to be defined? The Court defines damage by the property’s financial value ([88]), but its social value could also be relevant. This leads to the second question: where does the assessment of “significant damage” occur during a trial where the defendant relies on the Convention? The Court’s answer to Question 3 suggests this would be determined by the judge, who would give directions to the jury. That still leaves the question of whether the prosecution must show that the damage is significant. Thirdly, is there a distinction between violence to persons and damage to property? The Court said no ([90]) without explaining why that was the case. The Court admitted that there is “relatively little” Strasbourg authority on physical damage caused during a protest ([87]) and that there is no “clear and constant” jurisprudence suggesting it would attract the protection of the Convention ([102]). This observation arguably weakens the Court’s answer to Question 1.

Finally, while the Court emphasised that the Reference did not affect the acquittal of the Colston 4 ([2]), nor was its decision suggesting that they were guilty ([123]), it did offer its opinion on the case. It observed that the damage to the statute was “clearly significant”, requiring a “good deal of force” to bring it down ([122]). Relying on Hanzhiyski, which stated that statute debates should be resolved through “appropriate legal channels” and not by “criminal self-help” ([123]), the Court believed that the toppling of the statute, while not aimed at “negating democratic principles” ([83]), was “violent” ([123]). Inevitably, the Colston 4 took issue with this characterisation. It may have been better not to leave questions hanging about the relevance of its decision for the Colston 4, but the Court did not need to go beyond answering the questions of law, which made no mention of the Colston 4.

Conclusion

2022 has been a significant year for an individual’s right to protest. Months before AG’s Reference, the Police, Crime and Sentencing Act 2022 came into effect, making controversial reforms to policing protests. Currently, the Public Order Bill is going through the Houses of Parliament and proposes to make further changes. Whether AG’s Reference is a sensible development of, or a “hammer blow” to, protest rights, the decision is important in the ongoing debate about individual rights and the public interest.

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