Social media has been one the most effective mediums at eroding the respect towards professionals. They are no longer distant elites with an air of competency and judiciousness. They can easily tweet out their facile thoughts to thousands from their smartphones. “Trust the experts” we are told, but it is difficult to accept that refrain uncritically when the purported experts so frequently circulate fatuous nonsense. 

No profession has plummeted in the estimation of the public quite as much as lawyers. KCs have become a shorthand for biassed out-of-touch political grandstanders, desperate for attention — lazy and conventional in their thinking. They are rewarded with engagement from unimpressive sycophants, but often lose the respect of sensible colleagues and much of the public. They play to the prejudices of those who long to be regarded as intelligent and nuanced for likes and retweets. 

The reference would clarify the law to avoid confusion

Perhaps the most egregious example of legal twitter’s knee-jerk tendencies, groupthink and reluctance to engage in critical thinking is the reaction to the Colston Four trial and Court of Appeal reference by the Attorney General (AG) that followed. 

Rhian Graham, Milo Ponsford, Sage Willoughby and Jake Skuse had been charged with the criminal damage of Edward Colston’s statue in Bristol. Colston had been previously celebrated in Bristol for his philanthropy, but after the death of George Floyd and the worldwide BLM protests that followed, his participation in the 18th century slave trade and his connection to the city became particularly controversial. His statue was pulled down, dragged and thrown into the harbour on 7 June 2020. This apparently clear-cut criminal damage case did not result in a conviction, however. The defendants were acquitted by a jury at Bristol Crown Court on 5 January 2022. 

Initially, this acquittal seemed as if it was a Randle and Pottle style “perverse verdict”. Such a verdict occurs when a jury gives an acquittal contrary to the law. Sections of the press and public reacted in anger that the defendants could be let off. Others, including lawyers, defended juries’ rights to return verdicts according to their conscience. Yet, it soon became apparent that this was a red herring, and that the jury had probably not returned a perverse verdict after all. In a later deleted Doughty Street Chambers blog, Liam Walker KC, defence barrister for Sage Willoughby, claimed that this was the first trial:

 … in which a jury was required to consider whether a conviction of the defendants would have been a disproportionate infringement of the defendants’ rights under Articles 9, 10 and 11 of the Human Rights Act 1998. 

This gave a strong indication that the jury had reached a verdict following HHJ Blair KC’s directions. It also showed that the directions were likely to be legally challengeable. The blog said that Liam Walker had presented “new and complex legal arguments”. 

Suella Braverman, the then AG, tweeted on 7 January that she was carefully considering whether to refer the case to the Court of Appeal. She made it clear that the reference would not upset the jury’s verdict but clarify the law to avoid confusion. That statement resulted in a barrage of attacks from legal tweeters. Mark George KC said that Braverman was “an idiot” and that there was “no confusion over the verdict just a knee jerk pile-on by right wing bigots”. Philip Marshall KC said that “the law is clear, there is no confusion” and that it was “disingenuous to suggest there is”. He accused Braverman of “playing party politics” and said that we must accept the verdict. Jolyon Maugham KC, perhaps the most infamous KC since his Boxing Day fox battering, said that:

By attacking the jury verdict in the Colston case Braverman tells a simple truth about how much Government really cares (whatever Raab says) about “British traditions”. Theirs is a government without principles, without substance, of empty nationalistic signalling. 

In a Guardian article, Simon Spence KC was quoted as saying that: “The allegation was criminal damage, which is a very straightforward offence [for a judge] to direct juries about”. Former lawyer politicians joined in too, including Karl Turner MP and Emily Thornberry MP. Turner patronisingly described jury trials to Braverman, as if she were unaware of their function. 

The judgement handed down fully vindicated the AG

These reactions were manifestly predicated on a (wilful) misunderstanding of the legal issues. The AG is entitled to bring references to the Court of Appeal under section 36 of the Criminal Justice Act 1972 in the event of acquittals to correct mistakes of law so that those mistakes do not circulate in the lower courts. The Colston Four trial was a prime example of a case where a reference was merited. Alongside allowing other defences, the judge directed the jury that it should only convict if the prosecution had established to the criminal standard that a conviction for criminal damage would not be a disproportionate interference with the defendants’ rights to conscience, expression and protest under the European Convention on Human Rights (ECHR). The jury had to weigh up proportionality against the specific facts of the case. It is controversial, to say the least, that a right to freedom of expression should include a right to criminal damage. It was certainly not a “straightforward” direction. I set out detailed reasons as to why a reference was appropriate in a blog. Braverman, in making the reference, was not attacking the jury at all, as she made clear. She was concerned that an inappropriate new “defence” had been raised for criminal damage. 

As it became obvious that the reference had a strong basis in law, the Secret Barrister, in a brazen attempt to deflect anticipated criticism, maintained that he did not object to the reference “once the legal arguments emerged”, after having said on 7 January that: “It is difficult to think of an AG who has more enthusiastically abused their office”. On 5 January, though, he complimented Liam Walker on the “frankly ingenious” arguments made. He must, therefore, have been aware that the legal arguments in the trial were unusual and that a reference would have been appropriate — yet he also decided to join the other lawyers of Twitter in attacking the AG. 

Walker himself continued to object to the reference, saying that the jury was directed “in accordance with the law”, and accusing the government of bringing the reference as a means by which to distract the public from scandals. It is possible that Walker had been so taken with the cause and the fame that came his way (he implored the jury to be “on the right side of history” like some hammy Edward Marshall Hall for crusties) that he was offended that a reference would undermine him personally. Walker courted and received significant attention from the press, including an emetically fawning portrayal in the New Statesman, despite the fact that the barrister for Rhian Graham, Blinne Ní Ghrálaigh, was responsible for the proportionality assessment being left to the jury. 

To what should be the eternal embarrassment of lawyers who derided Braverman, the judgment handed down on 28 September fully vindicated the AG. There had indeed been a legal mistake in the directions. The Lord Chief Justice found that the ECHR does not protect violent protest and that significant criminal damage may be defined as violent. The UK Supreme Court case of Ziegler, which allowed for proportionality exercises in obstruction of the highway cases, was held not to apply. It would not be necessary to leave a proportionality assessment to juries in similar criminal damage cases. 

This reference was manifestly not frivolous. At a time when Extinction Rebellion and Just Stop Oil are using aggressive tactics to spread their messages, it is important to define the parameters of ECHR law. The Telegraph, for instance, reported that the trial of Gail Bradbrook, who had been charged with criminal damage after smashing a window in a protest, had been paused until the AG’s Reference judgment had been handed down. Protesters who are aware that convictions will be more likely may well decide to modify behaviour now that the law has become more certain. Criminal damage will be unlikely to spread as a tactic in the same way that obstruction of the highway spread after Ziegler. 

The reaction from lawyers was depressing, then. Here was a question of law of public importance which they chose to ignore. Instead, they launched a nakedly political attack on the then AG under the guise of being objective observers. It was a matter of irony that they accused Braverman of acting politically herself. It says a lot that so few were able to see the obvious flaws in the judge’s directions. Many were motivated by scorn for Braverman. Several appeared to have unquestioningly supported the protesters’ actions, embracing the cause du jour of BLM, disregarding the rights of others and the legitimate aim of proscribing violent protest. If lawyers become so intoxicated with politics that they lose sight of a sober assessment of the law, public confidence in the profession will continue to diminish.