On 13 April 2022, it was announced that the Attorney General, the Rt. Hon. Suella Braverman QC MP, had decided to refer questions of law to the Court of Appeal concerning the proper scope of defences to criminal charges arising from protests, and the directions which should be given to juries in such cases.
The referral relates to the Colston statue protest. The Attorney has concluded that this case has led to uncertainty regarding the interaction between the offence of criminal damage and the rights relevant to protest peacefully. The Attorney’s action will not overturn the acquittals in this case.
The Court of Appeal will be asked to clarify the law around whether someone can use a defence related to their human rights when they are accused of criminal damage. The Court will also consider whether juries should be asked to decide if a conviction for criminal damage is a “proportionate interference” with the human rights of the accused, particularly the right to protest and freedom of expression. In the Colston statue case, the judge directed the jury that, before they could convict, they must be sure that doing so would be a “proportionate interference” (in other words compatible) with the defendants’ exercise of their rights to freedom of thought and to freedom of expression.
Notes to Editors in the Press Release are:
- The Attorney has the power to ask the Court of Appeal for clarification on important points of law in some cases where a defendant has been acquitted at trial – which means ‘found not guilty’. The Criminal Justice Act 1972 provides the Attorney General with a power to refer a point of law to the Court of Appeal.
- The Attorney has referred one defendant (who cannot be named for legal reasons) from the Colston prosecution to the Court. This is because their case contains all of the issues which the Attorney wants the Court to clarify the law on. The individual’s acquittal is unaffected.
- The Questions asked of the Court of Appeal are as follows:
- Does the offence of criminal damage fall within that category of offences, identified in James v DPP  1 WLR 2118 and DPP v Cuciurean  EWHC 736 (Admin), where conviction for the offence is – intrinsically and without the need for a separate consideration of proportionality in individual cases – a justified and proportionate interference with any rights engaged under Articles 9, 10 and 11 of the European Convention on Human Rights (‘the Convention’)? If not, and it is necessary to consider human rights issues in individual cases of criminal damage:
- What principles should judges in the Crown Court apply when determining whether the qualified rights found in Articles 9, 10 and 11 of the Convention are engaged by the potential conviction of defendants purporting to be carrying out an act of protest? And
- If those rights are engaged, under what circumstances should any question of proportionality be withdrawn from a jury?
- More information about the last time this power was used is available here.
There is also a here., and Joshua Rozenberg explains the law
Joshua Rozenberg has written an analysis of the referral, in which he notes that the power to make a reference under section 36 Criminal Procedure Rules 2020 has been used, on average, less than once a year since 2000; it has become less important since 2005, when the prosecution was given the right to appeal on a point of law against a terminating ruling by a trial judge.
A ruling from the Court of Appeal could be delivered in the summer but a further ruling from the Supreme Court would take some months longer. He suggests Braverman’s decision to refer the case to the Court of Appeal in not unexpected since she announced her intention to do so in January this year, and her lawyers were probably waiting for the judgment in Director of Public Prosecutions v Cuciurean  EWHC 736 (Admin) which was handed down on 30 March 2022.
This is welcome news. I’m reminded of the comments David Lamming https://lawandreligionuk.com/2022/01/09/law-and-religion-round-up-9th-january/#comment-115871 and I made on this case back in January.
As a non-lawyer it seems to me unreasonable that the ‘lawful excuse’ section 5 of the Criminal Damages Act 1971. provides that ( emphasis added), “(3) For the purposes of this section it is immaterial whether a belief is justified or not .”.
Whereas the Protection from Harassment Act 1997 section 1, ( emphasis added) “(2) For the purposes of this section or section 2A(2)(c), the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another .”
The ‘reasonable person’ definition seems more objective and reasonable than ‘if it is honestly held’ by the perpetrator.
Would a reasonable person think that the damage to the Colston statue was justified?
In the Colston case the accused were acquitted and that cannot be changed. However the law might be clarified for the future or the need for the Criminal Damages Act 1971 s.5 to be amended to give a more objective test of ‘lawful excuse’.
This reference is no doubt timely and appropriate, but I would question the headline in today’s The Times stating ‘Top lawyer [sic] calls for clarity over case of Colston statute protesters.’ Will Braverman also now advise the Prime Minister to resign for (inter alia) his breach of the ministerial code in relation to his statements to the House of Commons re ‘partygate’, or is she too much of a toady, only telling Boris what he wants to hear?
A preparedness to speak truth to power seems, sadly, now to be a disqualification for the office of Attorney-General: vide the sacking of Dominic Grieve QC and also the resignation of David Gauke as Justice Secretary. At least one minister (Lord David Wolfson) has resigned tonight as a junior justice minister, stating in his resignation letter, “no option” other than to resign, given his “ministerial and professional obligations” in this area. Will the other justice ministers follow his principled lead?
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