On 28 September 2022, the Court of Appeal (Criminal Division) handed down Attorney General’s Reference No. 1 of 2022 [2022] EWCA Crim 1259, on a reference arising from a prosecution In the Crown Court at Bristol Royal Courts of Justice; the Attorney General sought the opinion of the Court of Appeal (Criminal Division) (“the Court”) on three questions of law which arose in the trial in Bristol Crown Court of four defendant protestors for allegations of criminal damage on 7 June 2020 to a statue of the English merchant Edward Colston (1636-1721).

Extracts from the associated summary are reproduced below.

The specific questions on the reference and the Court’s answers concern the extent to which the European Convention on Human Rights (“the Convention”) sanctions the use of violence against property during protest, thereby rendering lawful the causing of damage to property which would otherwise be a crime. The jury acquitted the four defendants who ran a range of defences.

The defence with which this judgment is concerned was that the damage done to the statue was lawful because it was a proportionate exercise of the right to protest. At a preliminary hearing, the defendants argued that the prosecution involved a disproportionate interference with their rights under Articles 10 and 11 of the Convention and was an abuse of process. In response, the prosecution argued that the conduct in question was not peaceful and so was not protected by the Convention. The trial Judge rejected the abuse of process argument but did not rule on this prosecution submission. He did however decide that that if there were an interference with Convention rights the jury could consider proportionality.

The Court of Appeal concluded that the prosecution was correct in its submission that the conduct fell outside the protection of the Convention. Specifically, the circumstances in which the statue was damaged did not involve peaceful protest. The toppling of the statute was violent. Moreover, the damage to the statue was significant. The proportionality of the conviction could not arise. Debate about the fate of the statue had to be resolved through appropriate legal channels, irrespective of a view that those channels were thought to have been slow or inefficient, and not by what might be described as a form of self-help.

The Questions and the Court’s Answers

Question 1: Does the offence of criminal damage fall within that category of offences, identified in James v DPP [2016] 1 WLR 2118 and DPP v Cuciurean [2022] 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’)?

The offence of criminal damage does not automatically fall within the category of offences identified whereby proof of the relevant ingredients of the offence is sufficient to justify any conviction as a proportionate interference with any rights engaged under Articles 9, 10 and 11, without the need for a fact-specific proportionality assessment in individual cases. However, the circumstances in which such an assessment would be needed are very limited.

Questions 2: If the answer to Q1 is negative 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. Question 3: If those rights are engaged, under what circumstances should any question of proportionality be withdrawn from a jury?

A judge should withdraw an issue from the jury if no reasonable jury properly directed could reach a particular conclusion and the context of these issues. The Convention does not provide protection to those who cause criminal damage during protest which is violent or not peaceful. Articles 9, 10 and 11 are not engaged in those circumstances and no question of proportionality arises. Moreover, prosecution and conviction for causing significant damage to property, even if inflicted in a way which is “peaceful”, could not be disproportionate in Convention terms. Given the nature of cases that are heard in the Crown Court it is inevitable that, for one or both reasons the issue should not be left to the jury. However, it is theoretically possible that cases involving minor or trivial damage to property heard in the Magistrates’ Court (albeit that “significant damage” would be caused a long way below the £5,000 threshold for cases to be tried summarily) may raise a question of the proportionality of conviction. In those limited circumstances, a conviction may not be a proportionate response in the context of protest.

Comment

It should be noted that the Appeal Court judgment does not affect the outcome in the Colston case. In the future however, defendants in similar cases will not be able to rely on the Convention rights of freedom of thought, expression and assembly. Liberty has welcomed the ruling that some protest-related cases will be able to rely on human rights defences but argued that the ruling is significant and will discourage people from continuing to stand up for causes they believe in; further, Liberty suggested that rights to protest had already been severely weakened by the Police, Crime, Sentencing and Courts Act 2022 and would be damaged further if the Public Order Bill, currently at the Report stage in the Commons, was passed.

Updated, 30 September 2022 at 09:32.