The acquittal of the Colston protestors and the implications for future cases

On 5th January 2022, four Black Lives Matter protestors who admitted tearing down a statue of Edward Colston, were acquitted of criminal damage. The outcome has received a polarised response and motivated the Attorney General to consider a referral to the Court of Appeal.

Contrary to some people’s views, the outcome of this case does not provide a licence for people to freely dismantle public monuments.  

Firstly, as a Crown Court case, it does not set a legal precedent upon which other defendants can rely. Secondly, it is a case that was unique on its facts, which means even if someone else committed the same offence they wouldn’t necessarily be acquitted of criminal damage.

What made this case special is the historical background to the Colston statue. The primary defence advanced was that of ‘lawful excuse’ in the ‘prevention of crime.’ It was submitted that the statue itself was so offensive that it was ‘threatening or abusive, within the hearing or sight of a person likely to be caused harassment, alarm or distress ‘and therefore amounted to an offence under section 5 of the Public Order Act 1986. It was also submitted that the statue was an ‘indecent display’ under section 1(1) of the Indecent Displays (Control) Act 1981.

The defendants relied on the defence of “prevention of a crime” under section 3(1) of the Criminal Law Act 1967, which meant the issues the jury had to decide were:

• whether the defendants believed there was a crime being committed by allowing the statue to remain in situ,
• whether the defendants believed themselves to be preventing the commission of a crime by using force to remove it, and
• whether the defendants’ actions were reasonable in the circumstances.

To support the defence case, the jury heard evidence from Professor Olusoga. He provided expert evidence on Edward Colston and outlined the crimes in which Colston was complicit, which included the trafficking into slavery of 80,000 people including children as part of the transatlantic slave trade of the 17th Century.  Comparisons were drawn between having a statue of other perpetrators of violence and murder in a town square and how people would feel walking next to such statues every day. It was also argued that the defendants’ efforts were reasonable as they had all tried to get the statue removed by legal means but the local council had failed to adequately respond to the public's objections.

It was further argued that the act of toppling the statue represented a legitimate expression of the defendants’ rights to freedom of expression and assembly under Articles 10 and 11 of the Human Rights Act 1998. These are not absolute rights which means the state is allowed to limit them, but interference must be proportionate.

There is no mechanism for interviewing the jury to find out which defence they found persuasive or why they decided to acquit the Colston protestors. However, the acquittal means the jury were not persuaded the prosecution had discharged their burden of proof.

The Attorney General, Suella Braverman, has nonetheless spoken of “confusion” caused by the Colston case and is considering her options. Under section 36 of the Criminal Justice Act 1972 she has the power to refer an acquittal case where the Attorney General desires the Court of Appeal’s opinion on a point of law. It has not been confirmed what legal issue she plans to refer.

The risk of referring the case is that the Court of Appeal’s judgment does set a precedent so if they return a judgment which interprets the legal question in a way that is more favourable to protestors, then others may be able to rely on that judgment to support their defence in similar cases.

It may not be perfect, but the twelve-person jury system has been operating since the 12th Century and is the best way of ensuring defendants receive a fair trial. Every day, twelve randomly selected individuals sit in judgment on a person unknown to them. They hear opposing cases from the prosecution and the defence, and they decide whether the prosecution has made them sure of the case against the defendant. 

It is important to remember that the jury system operates independently from the political system. Although the outcome of the Colston trial may not reflect the political agenda of the Government, that does not mean the system is broken or the jury’s decision is wrong in law.