The three men and one woman were tried by a judge and jury for the offence of criminal damage. They were able to elect trial by jury as the damage was estimated to be over £5000. Otherwise, they would have been tried in a magistrates' court. In 2019,I defended in a protest case where the offence charged was criminal damage. The trial was in front of a senior District Judge. Some of the same defences were relied upon in that trial as were relied upon in the Crown Court in Bristol. My client was found not guilty.
And so the law.
Criminal Damage Act 1971 s. 1 (1) (CDA)
- The prosecution is required to prove each element of the criminal damage namely that:
- There was damage (no dispute here)
- To property (s.10(1) CDA) (it was property)
- Belonging to another (s.10(2) CDA) and (it was not contested that it belonged to another)
- Each defendant intended to destroy or damage such property or was reckless as to whether such property would be damaged; and (this is a matter of fact for each defendant)
- Each defendant did not have a lawful excuse (each defendant asserted lawful excuse - which the prosecution had to disprove
Let's look at the defences in a little more detail.
Intention to destroy or damage or recklessness
- Intention or recklessness to cause damage- must be read in a restrictive way so as to give effect to Articles 10 and 11 of the ECHR
- Also, the context of any damage – namely in the course of a protest- is very important. Damage itself is not a criminal offence; a mistake made by many politicians who have commented on the case. Firefighters cause damage all the time - but they are not committing a crime as they have a lawful excuse - to put out a fire
- In R v G  UKHL 50, “recklessness for the purposes of the CDA was defined as follows:
- “A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to-
- A circumstance when he is aware of a risk that it exists or will exist;
- Result when he is aware of a risk that it will occur;
And it is, in the circumstances known to him unreasonable to take the risk.”
In this case it was argued that a defendant had one (or more) lawful excuses. The prosecution must disprove these "lawful excuses".
Prevention of a Crime
You will have to examine the lawful excuses set out below and decide if the Prosecution has disproved them.
The use of reasonable force to prevent a crime.
A person is to be treated as having a lawful excuse if:-
(1) they used such force as was reasonable in the circumstances as they believed them to be
(2) in the prevention of a crime.
(3) When they gave evidence you may consider that the Ds were saying they used force to prevent the following crimes:
the public display of indecent matter
the display of a visible representation which is abusive, within the sight of a person likely to be caused distress by it.
I will explain a little more about each of those three parts of this lawful excuse which is relied upon by the Defendants, but I will do so in reverse order: (3), (2) & then (1), because that will make it easier to understand.
May D have genuinely/honestly believed that a factual situation existed which amounts to a criminal offence (even if D’s belief was a mistaken one)?
There is a criminal offence of displaying indecent matter publicly.
May D have genuinely/honestly believed Bristol City Council was displaying ‘indecent matter’ in public with this statue on the Centre?
The definition of ‘indecent’ in the Oxford English Dictionary includes: “unbecoming; highly unsuitable or inappropriate; in extremely bad taste; unseemly; offending against the recognized standards of propriety and delicacy; highly indelicate...”
There is a criminal offence of displaying a visible representation which is abusive, within the sight of a person likely to be caused distress by it.
May D have genuinely/honestly believed that Bristol City Council was committing that crime by displaying an abusive statue, where one or more people were likely to have been caused distress by it?
The Defence argue that they genuinely/honestly believed that a factual situation existed which amounts to these criminal offences being committed by the Council.
The Prosecution argues that no criminal offence was being committed at all by the display of this statue - it was neither ‘indecent’ nor ‘abusive’, and you can be sure that the Ds did not genuinely/honestly believe a factual situation existed which would have amounted to these crimes.
If you decide that D may have genuinely/honestly believed that a factual situation existed which amounts to these criminal offences, you need to go on to examine the following.
(2) Were D’s actions carried out in order to prevent what they honestly/genuinely (even if mistakenly) believed to be a crime?
The Defendants argue that that is what they were doing – their actions were done in order to prevent one or both of those crimes, which they honestly/genuinely believed to be happening.
The Prosecution argues that they were not trying to achieve that, but instead were trying to force their own agenda because they were frustrated by the lack of progress in the debate about the statue.
Did D use ‘reasonable’ force to prevent a crime, in the circumstances as they believed them to be?
It is for you to decide what force was reasonable by your own standards. It is not what D thinks was reasonable – it’s what you think was reasonable.
However, the ‘circumstances’ in which force was used are the circumstances as D believed them to be.
If D only did what they honestly and instinctively thought was necessary to prevent a crime, then that would be strong evidence that reasonable action was taken.
In the case of the first 3 Defendants, did each of them honestly and instinctively think it was necessary to play a part in pulling down the statue to prevent a crime?
In the case of the fourth Defendant, did he honestly and instinctively think it was necessary to help roll the statue all the way to Pero’s bridge to prevent a crime?
The Prosecution says that even if you were to conclude Bristol City Council may have been committing one or both of the crimes now alleged (which is disputed), and even if you were to conclude the Defendants honestly (even if mistakenly) took the action they did to prevent one or more of those crimes,
it was unreasonable, in the circumstances as Ds believed them to be, to use force like this to prevent it, because there was a process through which concerns about the statue could have been dealt.
The Defendants argue that their actions were reasonable because any such processes had failed.
(ii) Belief in the consent of the owners
A person is to be treated as having a lawful excuse if he/she honestly believed,
at the time of the acts alleged to constitute the offence,
that those who the person honestly believed were entitled to consent to the damage,
would have consented to it,
if they had known of the damage and its circumstances.
(It does not matter if the person’s beliefs were justified or not, as long as they were honestly held.)
There is no requirement under CDA s. 5 that the steps taken should actually be reasonable. It is enough that the defendant believed them to be reasonable.