The toppling of a statue of slave trader Edward Colston was “violent” and therefore human rights protections were not available as a defence to a charge of criminal damage, Court of Appeal judges have ruled.
The bronze memorial to the 17th-century merchant, whose Royal African Company transported slaves to the West Indies and America, was pulled down during a Black Lives Matter protest in Bristol on June 7 2020 before being rolled into the harbour.
In January this year, four protesters – the so-called Colston Four – involved in tearing down the statue were cleared by a jury at Bristol Crown Court of criminal damage.
Following the jury’s decision, then-attorney general Suella Braverman referred the case to the Court of Appeal so judges could “clarify the law for future cases” – without affecting the four’s acquittals.
In a ruling on Wednesday, the Lord Chief Justice Lord Burnett, Mr Justice Holgate and Mr Justice Saini clarified three questions of law which arose from the case and were referred to the court by Ms Braverman.
Lord Burnett said the Crown Prosecution Service (CPS) was right to argue the prosecution of the four was not an abuse of process because the conduct of the protesters “fell outside the protection” of the European Convention on Human Rights.
However, he emphasised that does not suggest the four were in fact guilty of criminal damage, because there were other defences deployed by them at their trial and it is “impossible to know” on what basis the jury reached its verdict.
“Although this case did not involve the destruction of the statue, the damage that was caused was clearly significant,” Lord Burnett said.
“Pulling this heavy bronze statue to the ground required it to be climbed, ropes attached to it and then the use of a good deal of force to bring it crashing to the ground.”
He added: “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.
“On both these bases we conclude that the prosecution was correct in its submission at the abuse hearing that the conduct in question fell outside the protection of the Convention.
“The proportionality of the conviction could not arise for consideration by the jury.
“We emphasise that this is not to suggest that the defendants were in fact guilty of the offence of criminal damage. We have explained that the jury was concerned with a range of defences.”
Lord Burnett said that, more widely, the convention “does not provide protection to those who cause criminal damage during protest which is violent or not peaceful”.
He also said: “We have concluded that prosecution and conviction for causing significant damage to property during protest would fall outside the protection of the convention either because the conduct in question was violent or not peaceful, alternatively (even if theoretically peaceful) prosecution and conviction would clearly be proportionate.”
In the wake of the ruling, Ms Braverman, now Home Secretary, tweeted: “In April, I referred the ‘Colston Statue’ case to the Court of Appeal for clarification of the law relating to criminal damage and protest rights. My reference was successful on all counts. Well done to all those involved.
“Now it is clear: The conduct fell outside the protection of the Convention. This was not a case of peaceful protest. The toppling of the statute was violent, the damage was significant and the proportionality of the conviction could not arise.”
Raj Chada, partner at law firm Hodge Jones and Allen, who represented the four protestors, said in a statement: “We are disappointed by the Court of Appeal judgment.
“In our view, the evidence at the trial was that the toppling was not done violently.
“The clear view from an expert valuer, which we were prevented from relying upon during the trial, was that the value of the statue had increased exponentially after the toppling.
“The statue is still on public display as a monument to the evils of the slave trade, not as an obscene glorification of a slave trader.
“It is a shame that this is the attorney general’s focus rather than the multiple crises facing this country.”
Laura O’Brien, also a partner at Hodge Jones and Allen, added: “Local Government did nothing to address the harm done by this grotesque and offensive statue, yet the CPS chose to prosecute four people who did.
“Curtailing the rights of protestors has become high on the political agenda of this Government.
“While we head towards economic crisis, no wonder the Government chooses to stifle anything which challenges the status quo.”
Katy Watts, a lawyer for human rights group Liberty, which made submissions in the Court of Appeal case, said: “Protest is a fundamental right, not a gift from the state.
“Today’s judgment puts a threshold on when people can enact their human rights in a legal case, and takes away vital protections that empower everyone to be able to stand up for what they believe in.
“We are disappointed that the court has said that that human rights are not always linked to acts of protest.
“By placing weight on the value of an object in deciding if human rights can be taken into account, we feel that the court is shifting the balance too far away from our essential human rights.”
Court of Appeal judges were told at a hearing in June that the toppling of the statue was an “unacceptable way to engage in political debate”.
All four protesters admitted involvement but denied their actions were criminal, claiming the statue itself had been a hate crime against the people of Bristol.
At a hearing in London in June, three judges considered the law around the acquittal of Rhian Graham, one of the four.
Lawyers representing the Attorney General’s Office argued at the hearing that pulling down the statue was “a violent act” involving “significant force”.
They said violent acts are not covered by the European Convention on Human Rights’ freedoms of conscience under article 9, expression under article 10 and association under article 11.
Lawyers for Ms Graham said the referral to the Court of Appeal should not have been made, arguing that part of the Attorney General’s case was “no more than a general attack on the use of juries”.
The court was told that Colston played an active role in the enslavement of 84,000 black people, with around 19,000 people dying on slave ships from Africa.
Ms Graham said in a statement after Wednesday’s ruling that the toppling of the statue was “not a violent act”.
“It was the cathartic removal of a memorial to an oppressor of people and an abuser of power, who had too long loomed over the people of Bristol. The fact that it is gone is still right for Bristol,” she added.
The protester said she was “not disheartened” by the judgment, adding: “The positive impact of the toppling for both Bristol and the anti-racism movement as a whole can never be undone and this judgment cannot overturn the decision made by a jury of our peers.
“In court we relied upon more defences than just our human rights, such as prevention of crime and belief in consent, and it may be that the jury did not consider the defence in question when deciding our fate.
“Their basis for acquittal we will never know.”