“20 + C + M + B + 22 Chalk marks over doors are not new work by Banksy. Neither do they mark a plague house: Covid Mingling Billet…”
Bishop of Norwich
… although some readers might remember this as the answer to Q1 in our 2017 Boxing Day Quiz.
The Great Strasbourg Bake Off
Perhaps the biggest news of the week was that Gareth Lee lost his appeal to Strasbourg in what has become known in some quarters as the “Gay Cake Case”: by a majority, the Court held his application inadmissible for non-exhaustion of domestic remedies. We published a long guest post on the case by Professor Mark Hill QC, here.
After the decision was announced, Irish Legal News reported that Mr Lee might try to raise the matter afresh. Ciaran Moynagh, who is representing him, said:
“We are disappointed with the court’s ruling this morning. Mr Lee brought the appropriate and only application available to him and dealt with all arguments that arose in the course of appeals. We are clear that Mr Lee’s Convention rights were engaged and put forward during the litigation. Given the position the European court has taken this morning, we will now consider whether a fresh domestic case is progressed.”
“Contested heritage” and the Colston statue
In R v Graham & Ors  Bristol Crown Ct (unreported), the jury acquitted Rhian Graham, Milo Ponsford, Jake Skuse and Sage Willoughby on charges of criminal damage after they and others pulled down a statue of the 17th-century slave trader Edward Colston and dumped it in Bristol harbour on 7 June 2020. The prosecution had argued that the case was about criminal damage and the rule of law: the fact that Colston was a slave trader was wholly irrelevant. The four defendants admitted their actions but argued that they had been justified because the presence of the statue was so offensive. They had been motivated by sincere antiracist conviction, frustration that previous attempts to persuade the council to remove the statue had failed, and a belief that the statue was so offensive as to constitute an indecent display or a hate crime.
Subsequently, the Attorney General tweeted:
“Without affecting the result of this case, as Attorney General, I am able to refer matters to the Court of Appeal so that senior judges have the opportunity to clarify the law for future cases. I am carefully considering whether to do so.”
Commenting on the provision in the Police, Crime, Sentencing and Courts Bill currently before Parliament that would let courts take account of the “emotional or wider distress” of criminal damage and increase the maximum sentence to 10 years’ imprisonment regardless of the cost of damage, Professor Tom Lewis, director of the Centre for Rights and Justice at Nottingham Trent University, noted that the Bill would make the trial of those accused of damage to monuments possible only in the Crown Court, before a jury:
“There is a certain irony in the fact that if the [Colston] defendants had been tried before a magistrate they may well have been convicted. But in electing to trial by their peers – a right rooted in Magna Carta itself – they secured an acquittal.”
BarristerBlogger has published the trial judge’s directions to the jury, here.
Clergy discipline in the C of E
The issue of the Clergy Disciple Measure surfaced yet again in the Common when Rachael Maskell (Lab & Co-op, York Central) asked the Second Church Estates Commissioner about progress on the Clergy Discipline Measure review . Andrew Selous replied as follows:
“The Lambeth Working Group on the Review of the Clergy Discipline Measure, chaired by the former Bishop at Lambeth, presented its final paper to the General Synod in July 2021. That paper recommended that the Clergy Discipline Measure be replaced by new legislation which provides for a wider approach to issues of discipline, including the creation of a system which allows for the determination of lesser types of misconduct and grievance. This work is now being taken forward by a smaller Implementation Group, chaired by the Bishop of Worcester. That Group intends to finalise their proposals over the coming months and consult with various interested bodies between February and May 2022 with a view to presenting detailed legislative proposals to General Synod in July 2022.”
The Diocese of Oxford has announced that St Mary the Virgin, Drayton Beauchamp, will be the first church in the diocese to be awarded Festival Church status. The building will now remain open for worship and serve as a welcoming and functional community space. On 1 November, in a service led by the Rt Revd Dr Alan Wilson, Bishop of Buckingham, and the Ven Guy Elsmore, Archdeacon of Buckingham, the church and local community gathered “to mark the transition to a Festival Church and receive the status from Bishop Alan”.
As a Festival Church, St Mary’s will no longer be used for weekly worship services but will remain legally open as a parish church and hold a minimum of six services a year – mainly for Festival and patronal celebrations of the Church including Christmas, Easter, Harvest and Remembrance Sunday as well as baptisms, weddings and funerals. It is anticipated that there will be a service on the first Sunday of each month in addition to Easter and Christmas Services. The church building is also required to be available for the local community to use for a range of events and to serve the needs of the community such as housing the local food bank.
St Mary’s has in recent years seen a dwindling congregation, along with increased maintenance costs, and the PCC made the difficult decision to consult on future options. Following an extensive consultation with the Drayton Beauchamp Parochial Charities Trust, benefice, deanery, local community, the Archdeacon of Buckingham and the Buckingham Archdeaconry Mission and Pastoral Committee it was concluded that the Festival Church model was the most appropriate solution, and this recommendation was subsequently made to the Bishop of Buckingham.
Guidance for the safe use of places of worship
On 7 January 2021, the Department for Levelling Up, Housing and Communities and the Cabinet Office updated Coronavirus (COVID-19): Wedding and civil partnership ceremonies, receptions and celebrations to include the change from 11 January when people in England who receive a positive lateral flow test will be required to self-isolate immediately but will not need to take a confirmatory PCR test. The earlier update on 23 December 2021 stated that if one tested positive or had COVID-19symptoms, it was permissible to stop self-isolating after 7 days instead of 10 days on the basis of 2 negative lateral flow test results on day 6 and 7.
[The COVID-19: guidance for the safe use of places of worship was last updated on 10 December 2021]
- Madeleine Davies, Church Times: Reforms to safeguarding and clergy discipline should be co-ordinated, says Vicar-General: summary of HH Peter Collier’s ELS lecture on the Clergy Discipline Measure.
- Rosalind English, UK Human Rights Blog: Gay marriage-cake case declared inadmissible by Strasbourg Court.
- Joshua Rozenberg, Law Society Gazette: Raab’s resonant rights reformation: in which JR takes apart the MoJ’s latest consultation paper.
- Harriet Sherwood, The Guardian: Nurse ‘victimised’ for wearing cross at work was unfairly dismissed, tribunal rules: we noted the case here.
- Andrew Tettenborn, The Spectator: Have we reached peak human rights?: on the ECtHR’s recent judgment in Lee v United Kingdom.
- Peng et al, Environmental Science and Technology: Practical Indicators for Risk of Airborne Transmission in Shared Indoor Environments and Their Application to COVID-19 Outbreaks. “A model of airborne disease transmission through shared-room air is shown to explain literature outbreaks and can help guide mitigations”. (5 January 2022).
The Great Strasbourg Bake Off: Lee v UK  ECHR 1129: In response to Ciaran Moynagh’s reported comment in Irish Legal News that Mr Lee might try to raise afresh his discrimination complaint against Ashers Baking Co Ltd in the light of the ECtHR ruling, he would surely be met with an application to strike out any new proceedings as an abuse of process, based on the rule in Henderson v Henderson (1843) 3 Hare 100, (as discussed by the House of Lords in Johnson v Gore Wood & Co  2 WLR 72.)
The ‘Colston Four’: R v Graham and others  Bristol Crown Court
There is a valuable analysis of this case and the issues that were before the jury in an article by The Secret Barrister in the Sunday Times, 9 January 2022, page 20, “Why did the jury find the Colston four not guilty?”.
I commend the article to the Attorney-General, Suella Braverman, who also tweeted: “Trial by jury is an important guardian of liberty & must not be undermined. However, the decision in the Colston statue case is causing confusion”. She might find it instructive when considering whether to refer any aspect of the case to the Court of Appeal (and, incidentally, whether it is appropriate for a law officer to make populist tweets on current cases – or, indeed, to tweet at all about her role). Nick Cohen wrote this informative profile of Mrs Braverman in The Guardian in September 2020.
PS. Matthew Scott (‘Barrister Blogger’) has just posted online the judge’s legal directions in full, including the ‘route to verdict’:
Re Ciaran Moynagh’s reported comment, that was my reaction as well – but since I know nothing whatsoever about criminal law or procedure, I thought it best not to expose my ignorance!
It’s civil procedure, Frank, not criminal. It’s an aspect of the principle of finality in litigation: put simply, you should bring all your claims in one action.
Oops! I was evidently wool-gathering when I wrote that. Though I don’t know much about civil procedure either, I’m afraid.
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I too was intrigued by the Colston statue judgment. As a non-lawyer puzzled by the verdict I went to Bailli’s website and found Kelleher, R v  EWCA Crim 3525. Quotations from that judgment:
“In this appeal the Court is invited to examine, once again, the breadth of the defence of “lawful excuse” to a charge of criminal damage. … The Court is also asked to consider in what circumstances, if any, a judge is entitled to direct a verdict of guilty.” at .
The Defendant (D) had been found guilty of “knocking the head off a statue of Lady Thatcher, that statue being on temporary loan from the House of Commons. … the statue was damaged beyond repair and will cost £150,000 to replace” at .
D’s motivation appears to have been, “He made it plain that in acting as he did he was seeking publicity for his views in the hope that, if accepted by others, they might bring about improvements in the world situation.” at .
The judge at first instance had ruled that the defence of lawful excuse was not available, “I say that because even though he honestly believes that what he did was justified by his dislike of Mrs Thatchers’ policies in tying us too close to the United States in pursuing the aims of globalisation, and as he sees it, in the need to protect the safety and future of his son, he had no property belonging to himself which was in need of protection and no right or interest which was in immediate danger so as to need immediate protection. Even if he had such a right, the means adopted — in other words, knocking the head of the statute off — were not reasonable having regard to all of the circumstances, that action in itself was not capable of protecting anyone’s property, it was not even going to begin to achieve his objective. …
Therefore, in the light of what the defendant admits that he did, I must direct you that there can only be one verdict in this case and that is one of guilty. The case is nothing to with whether you like or dislike Mrs Thatcher: Whether you like or dislike her policies, it is simply a question of, whether as a matter of law it amounts to criminal damage.” at .
“Mr Kelleher was convicted and sentenced to a term of three months’ imprisonment. He now appeals against that conviction with leave of the single judge. The grounds relied upon are that: (i) the judge was wrong to rule as a matter of law the defence was unavailable; and (ii) in any event, was wrong to direct the jury to return a verdict of guilty.” at -
The Court, after carefully considering various judgments agreed that the judge had been wrong in directing the jury to return a verdict of guilty. However the Court concluded, “Applying that test and following the powerful precedent provided by the House of Lords in R v Stonehouse and notwithstanding the logical difficulty to which we have referred, we conclude that the conviction of Mr Kelleher is to be regarded as “safe”. Accordingly his appeal against conviction must be dismissed.” at 
Be interesting to see what happens if the Colston 4 goes to appeal. I appreciate the jury’s verdict cannot be changed and only the law on ‘lawful excuse’ clarified for the future.
I am grateful to Mr Whitmey for his research and for finding on BAILII the Court of Appeal judgment in the 2003 case of R v Kelleher – a case not otherwise reported, but referred to by Lord Bingham of Cornhill, giving the opinion of the judicial committee of the House of Lords in the subsequent case of R v Wang  1 WLR 661, holding (citing the headnote) that there were “no circumstances in which a judge was entitled to direct a jury to return a verdict of guilty.”
The HL in Wang applied the majority decision of the HL in the 1977 case of R v John Stonehouse  3 WLR 143, a case which I drew to the attention of prosecuting counsel (Roy Amlot) in the Ponting case in February 1985 and which led to the judge in that case, Mr Justice McCowan, recanting from his indication (given in the absence of the jury) that he was minded to direct the jury to convict. My part (as I like to think it was) in Clive Ponting’s acquittal is set out in this letter of mine to The Times, published, slighted edited, today (12 January 2020, page 26):
“Sir Richard Gibbs (letter, Jan 10) says that the judge in the Clive Ponting trial, unlike the Recorder of Bristol in the Colston statue case, “actually told the jury that they should convict the defendant, as there was no defence to the serious charge against him under the Official Secrets Act.” In fact, Mr Justice McCowan had indicated in the absence of the Ponting jury that he was minded so to instruct them. However, over lunch at the Old Bailey (where I was appearing in another court) I pointed out to prosecuting counsel that the House of Lords had ruled in the John Stonehouse case in 1977 that such a direction would be erroneous. As a result, the judge did not direct the jury to convict. The Times obituary of Ponting (Aug 1, 2020) recorded that McCowan was leaning towards the prosecution and even told lawyers he was considering halting the case and giving a direction to convict, “a move he was persuaded to abandon”.
As well as Ponting’s obituary confirming my recollection, a case note of McCowan J’s directions to the jury in the Criminal Law Review records: “During argument on the law by counsel the judge commented that he was minded to direct the jury to convict, but he did not do so following submissions from the defence based on DPP v Stonehouse and a request from the prosecution that this should not be done.” ( Crim LR 318-319.)
The assertion by retired circuit judge, Peter Murphy, in his letter to The Times that the acquittal of the ‘Colston Four’ was “clearly perverse, in the sense of a deliberate refusal to follow the law and the evidence” seems unsustainable in the light of the full written directions and ‘route to verdict’ that the Recorder provided to the jury, now published as a blog by Matthew Scott on is ‘barristerblogger’ website:
Since my above post I’ve found two very helpful blogs at https://thesecretbarrister.com/
“Do the verdicts in the trial of the Colston 4 signal something wrong with our jury system? 10 things you should know”
“A thought experiment on criminal damage”.
They have prompted me to invite, on the first one, The Secret Barrister to comment on Kelleher.
The first of these two blogs by the Secret Barrister is an expanded version of his/her article in the Sunday Times on 9 January 2022 (page 20) – the article I referred to in my original comment on 9 January (link above.)
Thanks and noted. Thought it might be – but the ST is behind a pay-wall 😉