Toppling a statue of slave trader Edward Colston was an “unacceptable way to engage in political debate”, the Court of Appeal has been told.
The bronze memorial to the 17th-century slave merchant was pulled down during a Black Lives Matter protest in Bristol on June 7 2020, before being rolled into the water.
In January, four protesters involved in tearing down the statue were cleared by a jury at Bristol Crown Court of criminal damage after almost three hours of deliberations following a trial lasting two weeks and two days.
All four had admitted involvement but denied their actions were criminal, claiming the statue itself had been a hate crime against the people of Bristol.
Following the jury’s decision, Attorney General Suella Braverman referred the case to the Court of Appeal so judges could have the chance to “clarify the law for future cases” – without affecting the four’s acquittals.
At the Court of Appeal in London on Wednesday, three judges considered the law around the acquittal of one of the so-called Colston Four – Rhian Graham, 30.
Tom Little QC, for the Attorney General’s Office, argued that pulling down the statue was “a violent act” involving “significant force”.
“Public monuments, no matter what the context, cannot in a democratic society be damaged in the way this was and this in substance amounts to an act of violence,” he told the court.
“Damage to property, like violence against the person, is a simply unacceptable way to engage in public debate,” he continued.
He later added: “Acts of criminal damage, whether it is this statue, or many other statues in towns and cities around the country, (they) cannot be pulled down and damaged in the way this was pursuant to the rights under articles 9, 10 and 11.”
Mr Little suggested a replica of the statue could have been made or “a noose could have been put around the neck of Colston without causing damage”.
The barrister 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.
The court heard the legal issue was whether the jury had to decide if convicting the four protesters would be a “disproportionate interference” with those rights.
Mr Little said: “We submit that the answer to that question is no.”
The barrister argued there are “formidable challenges” involved in allowing juries to consider the proportionality of convicting protesters compared to their human rights, including a lack of consistency between different juries.
The suggested difficulty of inconsistent or unreasoned decision making is no more than a general attack upon the use of juries rather than a reasoned basis for denying a jury trial to direct action protesters— Clare Montgomery
Clare Montgomery QC, for Ms Graham, said the referral to the Court of Appeal should not have been made, arguing part of the Attorney General’s argument was “no more than a general attack on the use of juries”.
She said in written submissions: “The fact that the jury may have to weigh competing values does not present particular difficulty.
“Juries are often asked to make judgments about balance in relation to moral as well as legal issues.
“Decisions about dishonesty, abuse of position, indecency, as well as reasonable excuse often involve difficult questions of judgment.
“The suggested difficulty of inconsistent or unreasoned decision making is no more than a general attack upon the use of juries rather than a reasoned basis for denying a jury trial to direct action protesters.”
Ms Montgomery later said the exceptions to certain human rights protections were “designed to deal with people who are proselytising on behalf of totalitarian regimes or forming militias” rather than “bolshy” protesters who refused to go through the council to have the statue removed.
“The unwillingness to go through the proper channels is the very heart of protest,” she told the court.
The barrister also rejected the argument that any property damage from a protest is not covered by convention human rights.
She said in written submissions: “The contention that any damage to property in a protest context – however trivial and incidental – is violent or otherwise rejects the foundations of democracy is without merit.
“The foundations of democracy are not undermined by individual actions, interfering with people or property in a policy area, particularly in an area of intense public debate.”
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.
“The statue caused serious distress, offence and harm to Bristolians and others, including black people,” Ms Montgomery said in written submissions.
Human rights organisation Liberty has intervened in the case.
Jude Bunting QC, for the group, said the Colston case was not the only one where a jury had to assess the proportionality of a conviction after a protest and was “part of a well-established tradition”.
The barrister continued in written submissions: “The wider concerns expressed by the Attorney General, about the potential for inconsistency, the lack of reasons given for jury verdicts, the difficulty for a defendant to challenge a jury verdict on irrationality grounds, are really concerns about the jury system as a whole.
“Those concerns are overstated. The constitutional importance of the jury in finding facts ought not to be understated.”
The hearing before the Lord Chief Justice Lord Burnett, Mr Justice Holgate and Mr Justice Saini is expected to conclude on Thursday with a decision at a later date.
