This article is taken from the June 2022 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

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Is the law this much of an ass? Many reasonable people will have been asking this question, as they scratched their heads in bewilderment at the acquittal of four people who were involved toppling and damaging the Colston statue in Bristol. To the great majority of the law-abiding public, this seemed an obvious crime. What the verdicts reveal is that the law concerning the relationship between “protest” and crime is in an unsatisfactory muddle. 

Everyone needs to know where they stand: the general public, who are adversely affected by protests; those protestors who do not want to commit criminal offences; the police who, when seeking to enforce the law, have to try to anticipate what a court might say about where they have drawn the line; and courts, which may have to grapple with political issues, a process for which they are particularly unsuited. Analysis of the Colston statue case demonstrates the urgent need for the law to be clarified and, if necessary, changed.

The case caused an outpouring of contradictory comment. It was greeted by the Guardian as “a welcome sign that Britain is changing” and criticised by the Daily Telegraph as “a monumental mistake”. Lord Sumption, formerly of the Supreme Court, wrote that the members of the jury had “dishonoured their oath and undermined the rule of law”. According to political taste, the verdicts were either a robust assertion of a tradition of independence by juries or a perverse defiance of the law. 

There is good reason to challenge both these views. To understand this case and its implications, for my Policy Exchange paper, Did the Colston trial go wrong? I went to transcripts of the speeches of counsel and the judge’s summing up. This much is clear: if something went wrong in the trial, it was not the jury’s fault.

Edward Colston (1636-1721) was a Bristolian entrepreneur, whose multiple commercial activities included involvement in the Atlantic slave trade — then generally accepted, now rightly reviled. He bequeathed a large sum of money to the city and was memorialised by the statue in 1895. There were sporadic campaigns to re-word the laudatory plaque on its plinth or, even, remove the statue altogether. For about three years, a petition to take it down had been running, with little support. 

This changed with the murder of George Floyd in Minneapolis on 25 May 2020; about 10,000 signatures followed. On 7 June, there was a demonstration in Bristol. The defendants attended. Three of them had earlier discussed pulling down the statue. Ropes were brought for the purpose. They were actively involved in pulling down the statue from its 10ft high plinth. The fourth defendant helped others to drag and roll the statue across cobbles, so that it could be dropped into the harbour. The police stood by throughout. 

At trial, the evidence of the defendants centred on the sense of outrage felt by them about the celebration of a slave-trader, what they believed about the feelings of the local community, and the repeated failure of the City Council to act.

The deep problems with the state of the law were demonstrated by the formidable difficulties faced by the judge and the way the trial was, as a result, conducted — the legal rulings, the nature of the evidence that was introduced, and the freedom defence counsel understood themselves to have to make apparently political, emotive, and historically controversial comments (including references to contentious issues that were not in evidence).

The judge directed the jury that, in order to convict, bearing in mind the human right to protest (a combination of the rights to freedom of expression and assembly), they must be sure, in addition to the usual elements of the offence of criminal damage, that “it is necessary in a democratic society, in the interests of public safety or for the protection of the rights of others, that the defendants should be convicted”.

This was his interpretation of a recent, much criticised, Supreme Court judgement (DPP v. Ziegler, which concerned protestors obstructing a highway). If this really is the law, reasonable people, who do not damage property to press their political claims, have good reason to be astonished.

Bristol City Council did not exist when the statue was put up

There have never been so many opportunities and outlets for people to express themselves. It is hard to see why those prepared to commit what, on the face of it, are criminal acts should be effectively privileged by being permitted to pursue their aims by causing loss or damage to others. Often, activists say, “Democracy has failed, no one is listening to us”, when, in reality, people are listening but do not agree with them. The law forfeits public confidence if members of the public are made to suffer by people making political points by force or obstruction, which they could make in many other ways.

Furthermore, on the facts of the Colston case, there is good reason to say that, in any event, this defence should not have been permitted. The right to protest does not allow actions by those with “violent intentions”. By any sensible standard, criminal damage is an offence of violence. In any event, toppling the statue was not a “protest” against the failure to remove it — it was simply achieving the aim of removing it and doing so by force. One may conclude, therefore, that the right to protest had nothing to do with this case at all.

Much of the commentary has overlooked the focus of the trial on another, rather different defence — that the defendants may have honestly, if mistakenly, believed that facts existed which amounted to a crime committed by Bristol City Council and that they were acting reasonably to prevent it.

The potential crimes identified were that the statue was an “indecent display” (contrary to the Indecent Displays (Control) Act 1981) or was “abusive” (contrary to The Public Order Act 1986). Many will agree with the barrister and legal commentator, Steven Barrett, who described this as “obviously silly”. However, it was the basis on which the jury heard a great deal of evidence, including that of the historian and television presenter, David Olusoga, which occupied more than 10 per cent of the judge’s summing up. 

According to the New Statesman, Professor Olusoga’s remarkably wide-ranging evidence “was key to [the barrister’s] strategy of bringing more emotion into the case”. One may wonder why such a transparent tactic was permitted, instead of, for example, directing that a relevant, agreed, short summary of his evidence be reduced to writing for the jury. 

The evidence went entirely unchallenged, including the suggestion that putting up the statue may have been “an attempt by the elite to reassert their order of things”, at a time of class conflict. This is controversial, as David Starkey has written (The Critic, February 2022). If it was relevant, why was it not challenged? If it was not relevant, why did the jury hear it? Indeed, the question may be asked of Professor Olusoga’s evidence, was any of it relevant? What mattered was what the defendants thought, not him.

Even more fundamentally, should the jury have been directed to consider this defence? Bristol City Council did not exist when the statue was put up. Legislation passed in the 1980s was not designed to have retrospective effect. It is hard to see what these laws could have to do with a statue that has stood for 125 years, depicting someone who died 300 years ago. Finally, if crime was suspected, could there be any, even remotely arguable, justification for pulling the statue down rather than reporting it to the police?

The “prevention of crime” defence, however tenuous, can be expected to feature in future cases

The consequences of this confused state of affairs are not confined to the court room. Take this entirely plausible scenario. Activists take exception to a pub sign which depicts a long-dead monarch who had, they genuinely but wrongly believe, a link to the slave trade. The landlord refuses to remove it. They go to the pub to take it down themselves. Customers of the pub, to prevent what they believe to be criminal damage, try to stop them. All the participants in the resulting fight believe they are acting lawfully. What should the police do? If they arrest everyone, who, if anyone, should be prosecuted? Should they stand trial together? Who has a civil claim against whom?

The law needs to be sorted out and parliament should intervene if the courts cannot do it. The Attorney General has announced her intention to refer the “right to protest” defence to the Court of Appeal for its opinion. The fate of many statues and memorials is hotly contested. Damage is often caused to draw attention to, and reinforce, a political claim. A range of charges are routinely met with this defence. 

If undisturbed, the points raised in this case will be raised in others. Complaints that the reference risks undermining or politicising trial by jury are absurd. The merits of this reference are exactly the opposite. Clarifying the law is required to protect jury trials from being politicised.

However, by confining the reference so narrowly, the Attorney General seems not to have appreciated the full extent of what is at stake. The “prevention of crime” defence, however tenuous, can be expected to feature in future cases. The Court of Appeal should be asked to consider it. Otherwise, there is a real risk that the problems exemplified by the Colston statue trial will be repeated. Again and again.