What will happen to the demonstrators who threw the Colston statue into Bristol Harbour?
The Home Secretary has described the demonstrators’ behaviour as “absolutely disgraceful.” Clearly she hopes that they will be prosecuted and punished.
The law is on her side.
S.1 of the Criminal Damage Act 1971 provides:
“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”
It is impossible to know the exact value of the statue, or the cost of repairing it (it has been sensibly suggested that it might be recovered from the harbour and re-erected in a museum), but it is very unlikely to have been less than £5,000. Anyone charged with damaging it would therefore have the right to elect trial by jury in the Crown Court.
Damaging a listed building
It was a Grade II listed building. According to Heritage England it is, or was:
“A handsome statue, erected in the late C19 to commemorate a late C17 figure; the resulting contrast of styles is handled with confidence. The statue is of particular historical interest, the subject being Edward Colston, Bristol’s most famous philanthropist, now also noted for his involvement in the slave trade. Group value with other Bristol memorials: a statue of Edmund Burke, the Cenotaph, and a drinking fountain commemorating the Industrial and Fine Art Exhibition of 1893.”
The use of euphemism in the listing is remarkable:
“Edward Colston (1636-1721) was the son of a prosperous Bristol merchant; … Colston established his own successful business in London, trading with Spain, Portugal, Italy, and Africa. The details of precisely how Colston’s fortune was accumulated are not recorded, but his business interests were wide. Besides trading extensively in various commodities, including cloth and wine, he acted as a money-lender, and had interests in the West Indian island of St Kitts. In 1680 he became a shareholder in the Royal African Company. The Company, which had been founded in 1672 in place of the Royal Adventurers, had a monopoly on trade with Africa until 1688, after which time it received fees from English traders. Colston took a leading role in the Company, serving on several committees, and becoming deputy governor in 1689.
His brother Thomas, incidentally, was also in business. He “supplied beads that were used to buy slaves.” No doubt that too was considered an honourable profession in the late seventeenth century.
Damaging a listed building is prohibited under S.7 of the Planning (Listed Buildings and Conservation Areas) Act 1990:
“… no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised ….”
The maximum penalty for the offence of damaging a listed building is 2 years imprisonment.
The offence is triable “either way,” which means that any defendants charged under that Act would have the right to elect trial by jury. Prosecutions are normally brought by the local authority, but others, including English Heritage, the Crown Prosecution Service, or indeed a private individual may also do so.
Avon and Somerset Police
On the face of it two indictable offences have been committed.
The Avon and Somerset Police have adopted a rather uncomfortable position astride the fence, albeit rather further on the demonstrators’ side of it than the Home Secretary would probably like.
Superintendent Andy Bennett, speaking for the force to the BBC yesterday confirmed that the police had deliberately not tried to prevent either the toppling of the statue or its disposal at the bottom of the harbour. Colston was, said the officer:
“a historical figure that’s caused the black community quite a lot of angst over the last couple of years. So whilst I am disappointed that people were (sic) damaged one of our statues I do understand why its happened, it’s very symbolic. You might wonder why we didn’t intervene and we just allowed people to put it in the docks … We made a very tactical decision that to stop people doing that act may have caused further disorder and we decided the safest thing to do in terms of our policing tactics was to allow it to take place.”
Q: Should you have protected the statue?
Our policing style was from the outset low key we were not able to get to the statue in time to to protect it. And once it was toppled there was clearly a pre-planned attempt to bring that statute down, they had grappling ropes and they had the right tools, so once it was down we made a decision, the right thing to do was just to allow it to happen because what we did not want is tension ….”
Q: Some people would say … you should have intervened and challenged this behaviour?
I understand why some people will think we should have intervened and challenged this behaviour this was a very difficult policing operation there’s a lot of context that sits around it and I believe we did the right thing. …
Q: No regrets?
Shortly afterwards the force issued an official statement:
“The Black Lives Matter demonstration in Bristol today was attended by an estimated 10,000 people.
The ongoing coronavirus pandemic added a different dynamic to what was always going to be a challenging policing operation.
And I’d like to thank the organisers for their efforts to encourage demonstrators to follow Government guidance – a message which many clearly took on board, doing their best to socially distance, despite the large crowds.
Keeping the public safe was our greatest priority and thankfully there were no instances of disorder and no arrests were made.
However, there was a small group of people who clearly committed an act of criminal damage in pulling down a statue near Bristol Harbourside.
An investigation will be carried out into those responsible and we are already collating footage of the incident.
I’d like to thank our partners at Bristol City Council for helping us to ensure that this was a safe event for all who attended.”
It is impossible not to sympathise with the police.
All police officers swear an attestation of office which includes a promise “to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property”
On the other hand, it may well have been – as Supt Bennet suggests – virtually impossible for them to prevent the destruction of the statue. Certainly, the sight of police officers protecting a monument to a slave trader would have been a powerful symbolic image that would have been used to damage the reputation of the force.
However, despite taking a decision to stand aside and allow the destruction of the statue to be carried out, the Police now say that they are actively investigating the crime of criminal damage.
Assuming that some of those responsible for pulling down the statue can be identified and found, what could then happen?
Before any prosecution takes place the Crown Prosecution Service (or any other prosecution authority) will apply a two stage test.
First, is there evidence available to support a conviction (“the evidential test”)?
Second, is prosecution in the public interest?
The evidential test
This is not quite the same as asking whether it is more likely than not that a conviction would result. Strictly speaking the question posed by the CPS in deciding whether to charge is whether:
“… an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.”
Note that the Crown Prosecutor is not concerned with the actual likelihood of a conviction. The test is what a notional “objective, impartial and reasonable jury acting in accordance with the law” would be likely to do.
The test should be fairly straightforward so long as those responsible for pulling down the statue can be clearly identified on video. There can be no argument that it was destroyed (or at the very least damaged), and that its destruction or damage was intentional.
That is not quite an end to the evidential problems.
First – under the Criminal Damage Act 1971 the prosecution must prove that the statue “belonged to another.” Any technical difficulties about ownership are cleared up by S.10 (2) which provides that:
“Property shall be treated for the purposes of this Act as belonging to any person –
(a) having the custody of control of it …”
It was certainly controlled by the City Council, whatever precise legal complications of ownership there might be. The Council are the owners, at least for the purpose of the Criminal Damage Act.
But the need to establish ownership raises an awkward question for the Council: do they co-operate with any police inquiry?
Normally the owner of damaged property will provide a statement to the police saying “I did not consent to the damage to my property.” A prosecution for criminal damage without one would be highly unusual. It might not always be an absolute legal necessity – the prosecution could perhaps prove ownership even without it – but refusing to give a statement would suggest not supporting the prosecution, which would imply that the Council did not care about the statue’s destruction.
The second potential evidential problem for the prosecution arises because the offence is not committed if there is a “lawful excuse” for the damage. That can sometimes be a rather slippery concept.
Belief that owner would have consented
Although a defendant’s own belief that the statue was offensive cannot be a “lawful excuse” for destroying it, a belief that the owner “would have consented if he or they had known of the destruction or damage or its circumstances,” is deemed to be such an excuse under S.5 (2) (a).
Furthermore [S.5 (3)], it is “immaterial whether [such] a belief is justified or not if it is honestly held.” In practice, without a statement from the Council saying that it did not consent to the damage, a defendant would be able to say “not only did I believe that the Council would have consented to Sir Edward being chucked in the harbour, but since they are not supporting this prosecution I was obviously right.”
The Mayor’s dilemma
Bristol’s Mayor, Marvin Rees was interviewed on this morning’s Today Programme.
“As an elected politician I cannot condone criminal damage … but I am of Jamaican heritage and I cannot pretend that I have any real sense of loss for the statue or that it was anything other than a personal affront to me to have it in the middle of Bristol.”
He was asked if anybody involved should be charged with criminal damage:
“That’s up to the criminal justice system we do live in a country where we should have a criminal justice system which works without favour or fear.”
Since a statement from him (or someone acting under his authority) would be central to any prosecution, sitting on the fence is unlikely to be a position which Mr Rees can comfortably maintain for long. It is not just up to some nebulous “criminal justice system,” it is also up to him, or at least to the local authority of which he is the leader.
It would surely be inconceivable for a public authority not to provide a statement to the police. That would be to “condone criminal damage,” which the Mayor says he will not do. Since the Council did not consent to the statue’s destruction any truthful statement would have to make that clear. But if they co-operate with the police the Council will be seen to be supporting the prosecution of the demonstrators, a position which the Mayor and other senior council officers would also very much like to avoid.
They must be hoping that the police will not try too hard to identify those responsible so that the dilemma does not arise.
In order to prove criminal damage – though not the listed building offence – the prosecution must also establish that there was no “lawful excuse” for the damage. At first sight this might appear to give a wide scope for the demonstrators to claim that they had an excuse to do as they pleased. In practice the scope of “lawful excuse” has been restricted by the higher courts, not least in a case involving damage to a statue.
In 2002 a Mr Paul Kelleher caused £150,000 damage to a statue of Mrs Thatcher exhibited in the Guildhall Gallery in the City of London. His did so to make a political protest. The trial judge refused to leave the question of whether this was a reasonable excuse to the jury, and the Court of Appeal held that he was correct not to do so. That seems a difficult precedent to overcome, given that the destruction of the Colston statue was also carried out to make a political point.
In a different case1 and a slightly different context, Lord Hoffman cited Hobbes with approval:
“A tight control of the use of force is necessary to prevent society from sliding into anarchy, what Hobbes ( Leviathan, ch 13) called the state of nature in which
“men live without other security, than what their own strength, and their own invention shall furnish them withal. In such condition, there is no place for industry; because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of commodities that may be imported by sea; no commodious building; no instruments of moving, and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and what is worst of all, continuall feare, and danger of violent death; And the life of man, solitary, poore, nasty, brutish, and short.”
78. In principle, therefore, the state entrusts the power to use force only to the armed forces, the police and other similarly trained and disciplined law enforcement officers.”
Leeds criminal QC Bryan Cox has suggested:
“The reasonable excuse is that the statue was an affront to right thinking members of the public, and its existence likely to incite public unrest.”
I’m reluctant to disagree with Mr Cox (“An extremely thorough advocate who takes into account all views before extolling his legal wisdom” according to the Legal 500), but that seems very unlikely to be accepted. If that was a lawful excuse it would give the green light to any mob that wanted to destroy something by which “right-thinking members of the public” were affronted. I am sure Lord Hoffman and Hobbes are right and Mr Cox is wrong.
So, as long as Bristol Council co-operates with the police, it is hard to see that anyone prosecuted for criminal damage would find much support from the law for what they did.
Avon and Somerset Police were correct to say that the destruction of the statue was an act of criminal damage. There was no lawful excuse.
The listed building offence
If demonstrators are charged with destruction of a listed building, the Planning (Listed Building and Conservation Areas) Act 1990 provides even less hope of a defence. The offence is absolute. There is no need to prove intent or recklessness, or indeed any particular state of mind. There is not even a defence of “lawful excuse” available.
The only statutory defence is that the demolition was “urgently necessary in the interests of safety or health or for the preservation of the building,” which is hardly applicable here, although I suppose an ingenious silk like Mr Cox might try to argue that the demonstrators were so affronted by the statue that “the interests of safety” demanded its immediate destruction. In fact, that comes quite close to Supt Bennett’s decision not to try to prevent the destruction of the statue because “we decided the safest thing to do in terms of our policing tactics was to allow it to take place.” However, I would be astonished if a judge allowed such an argument to be presented to a jury.
It would theoretically be possible under S.8 of the 1990 Act for the local planning authority – back to Bristol City Council again – to grant retrospective “listed building consent” for the destruction of the statue, which would put a stop to a listed building prosecution. At present seems rather unlikely but I guess that they might come under considerable pressure to do so if any demonstrators were charged.
Would a prosecution be in the public interest?
This is a trickier question. Even if an objective jury would be likely to convict, it does not follow that a prosecution has to be started. The CPS (or other authority) will only prosecute if it considers a prosecution to be in the public interest.
That does not mean prosecutors can simply decide for themselves what the public interest requires. They are expected to follow the guidance set out in the Crown Prosecution Service Code for Crown Prosecutors.
The starting point is that “the more serious an offence is, the more likely it is that a prosecution is required.”
When assessing the seriousness of an offence prosecutors “should include in their consideration the suspect’s culpability and the harm caused, by asking themselves [these] questions:”
What is the level of culpability of the suspect?
What are the circumstances of and harm to the victim?
The level of “culpability” of those who destroyed the statue is high. The offence was, according the police, “pre-meditated.” Offenders came equipped with “grappling ropes and other tools.” This was no accident or even reckless ignoring of the risks. It was entirely deliberate.
The “harm” to the victim is more difficult to assess.
Who was the “victim” anyway? The Council were at best ambivalent about retaining the statue and many of the people of Bristol, those most affected by the presence or absence of the statue, actively wanted it removed. On the other hand many did not, and it was (according to its listing) a “handsome statue” of “particular historical interest.”
Of course culpability and harm are not the only criteria which a prosecutor can take into account when deciding whether a prosecution is in the public interest but where the damage is significant, culpability is high and the effect on the “victims” is arguable either way, if the CPS follows its own guidelines it is likely to find that the public interest requires a prosecution.
Would a jury convict?
Assuming the statue is valued at more than £5,000 any protestor charged with criminal damage has the right to a trial by jury. The listed building offence, likewise, is triable in the Crown Court.
A real – as opposed to the CPS’s notional – jury is not bound to follow the strict letter of the law. The right of a jury to follow its own conscience and refuse to convict even when the evidence and the law appear to leave it no option was established by the famous case of Penn and Mead, otherwise known as Bushell’s case (1670) Jones T 13, 84 ER 1123, in which the Court directed the release of jurors who had refused to find Penn and Mead guilty of “tumultous assembly.” The jury, said the court “cannot be coercively directed by the Court.”
“The jury is perjured if the verdict be against their own judgment, tho’ by direction of the Court, for their oath obliges them to their own judgment.”
In recent times, especially in cases which are seen to have a political dimension, juries have occasionally put their own judgment above the direction of the court. Clive Ponting was acquitted of breaching the Official Secrets Act despite the trial judge instructing the jury that he had no legal defence. Greenpeace protestors in 2008 stretched the limit of lawful excuse almost to breaking point, but successfully nonetheless.
An even more dramatic – many would say egregious – example of a jury refusing to convict despite the overwhelming weight of the evidence (the defendants had written a book admitting their guilt and explaining exactly how they did it), and the fact that they had no defence in law, was the case of Michael Randle and Pat Pottle who were acquitted of helping the Soviet spy George Blake escape from Wormwood Scrubs and then transporting him to Berlin. They argued that their prosecution was motivated by political considerations, something that was beside the point as a matter of law. They made what turned out to be a shrewd decision to represent themselves, exploiting the fact that a litigant in person is sometimes accorded rather greater latitude than a defendant represented by counsel. The jury agreed with them and sensationally found them not guilty.
Anyone prosecuted for causing damage to the Colston statue is likely to be tried in Bristol. Even if the case were to be transferred away from Bristol my view is that, whatever direction a trial judge might give, it would be extremely difficult to find a jury with at least 10 members willing to convict them for the destruction of a symbol of slavery.
Some may say, with Hobbes – by coincidence a near contemporary of Colston’s2 – “that way anarchy lies.”
Others will be with Bushell and his fellow jurors – also contemporaries – and will think that very occasionally a jury’s conscience must permit it to ignore the strict letter of the law.
1Jones and others [ UKHL 16