Claims on ‘Colston Four’ case leave out key questions the jury had to answer

14 January 2022
What was claimed

The “Colston Four” admitted to pulling down the statue of Edward Colston and dumping it in the river. Legally, that is criminal damage.

Our verdict

That’s not how the law defines criminal damage. Part of the definition is that it is done without “lawful excuse”. The defendants argued they had an excuse.

“The ‘Colston Four’ admitted to pulling down the statue of Edward Colston and dumping it in the river. Legally, that is criminal damage.”

Lord Sumption, a former Justice of the Supreme Court, wrote in the Telegraph on 8 January 2022 that the actions of the “Colston Four” in June 2021, when a statue of 17th century slave trader Edward Colston was pulled down in Bristol, legally amounted to criminal damage.

Legally this is only part of the definition of criminal damage, and the missing part is central to what the jury was required to decide in that case.

What’s missing is that these actions only count as criminal damage if they were done “without lawful excuse”. The defendants argued that they did have a lawful excuse for what they did. That’s not mentioned anywhere else in the article, even though it strongly criticises the jury. 

The jury in the case found the defendants not guilty and we cannot know why. Jurors are not allowed to discuss what happened in the jury room. But we do know exactly what questions they were told they had to answer.

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What is criminal damage?

The definition of criminal damage in England and Wales is set out in the Criminal Damage Act 1971. 

It says: “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.”

How was the verdict in the case reached?

Matthew Scott, a criminal barrister and legal blogger, has published the legal directions the judge gave to the jury in order to reach their decision.

As the judge explained to the jury: “The Prosecution has to prove all of the following against a Defendant (D) before you may find him/her guilty of causing criminal damage:-

  1. D, jointly and together with others
  2. damaged property;
  3. the property belonged to another;
  4. D intended to damage it, or was reckless as to whether it would be damaged; and
  5. D did not have a lawful excuse for damaging it.”

Lawyers for the defendants argued that they did have a lawful excuse. 

They argued that defendants had an honest belief that the display of the statue was itself a crime, and that they had the lawful excuse of using reasonable force to prevent a crime.

The crimes the defendants referred to were “the public display of indecent matter” and “the display of a visible representation which is abusive, within the sight of a person likely to be caused distress by it.”

The jury directions go step by step through the factual questions the jury would have to answer to decide that the defendants did not have a lawful excuse.

Two of the defendants gave evidence of another excuse, that they “honestly believed the statue was owned by the people of Bristol and honestly believed that, had the people of Bristol known of the damage and its circumstances, they would have consented to what was done.”

Finally, there was one last argument the jury had to make a decision about.

They were told to “consider whether 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 for their actions”.

The judge stressed: “Limitations on these rights [to freedom of thought, conscience and expression] are permitted under laws like the Criminal Damage Act if they are necessary in a democratic society in the interests of public safety or for the protection of the rights and freedoms of others.

“It requires balancing the defendants’ rights to freedom of conscience and belief, to freedom of expression and to protest, as against the interests of public safety and the protection of the rights and freedoms of others, such as the property rights of the Council.”

They were asked to assess “where the balance lies, having regard to all the facts in the case” and decide “whether you are sure it would be proportionate to convict a Defendant”.

It’s clear that the arguments made in this case have been controversial.

But whatever you think of them, this is what the jury was required to make a decision about. They could not ignore the part of the law that says “without lawful excuse”.

However the jury got to their verdict, legally it was much more complicated than saying that if the defendants did pull down the statue and dump it in the river, the jury had to find them guilty.

Image courtesy of Simon Cobb, CC0, via Wikimedia Commons.

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