Cllr Ryan Stephenson is Shadow Cabinet Member for Children & Families on Leeds City Council and was the Conservative candidate in the Batley & Spen by-election.
Social media was ablaze with opinion this week, as a jury at Bristol Crown Court found the so-called “Colston Four” not guilty of criminal damage, despite video footage showing them pulling down a statue of 17th century philanthropist, Tory MP, and slave-trader, Edward Colston, and then ditching his bronze into Bristol’s Floating Harbour.
Left-wing commentators and supporters of the Black Lives Matter movement argue that the jury’s verdict validates direct action, whilst those opposed argue that the courts are pandering to the woke brigade. But what does such discreditation of a jury’s verdict mean for the future of our legal system?
In this case, a randomly selected jury reached a verdict based on the evidence and a defence put to them in court. The irony for the defendants is that they were acquitted by the very type of antiquated system of traditions and processes that their movement rallies against. As predicated in Magna Carta, and then by Pope Innocent III in 1215, those charged with an offence are entitled to be judged by a panel of their peers: twelve good men and true.
As video evidence shows, there was no question over whether the four were involved in the toppling of the statue; however, the court was presented by the defence with an argument of lawful excuse and it is on the point that those angered by the verdict should focus their attention, not towards members of the jury.
The defence argued several points, including – most oddly – that removing the statue was to assist in the prevention of a crime, asking the jury to consider whether the presence of the statue itself constituted an offence under Section 5 of the Public Order Act 1986, citing that its existence was causing harm or distress to some members of the public. Clearly, there are some in society who have recently become vexed by the existence of British history, but this is not absolute; indeed, according to Deltapoll, only 24 per cent of the public agreed with the toppling of Colston’s statue. This defence therefore raises deeper questions around the threshold for a lawful excuse of preventing distress when it may just be that the individuals were simply offended by something in a society that claims to foster freedom of speech and expression.
There are further deficiencies around lawful excuses. Under Section 5(2) of the Criminal Damage Act 1971, legislation permits a defence for carrying out criminal damage if the person believed that those entitled to consent to the destruction or damage to property had so consented or would have so consented if they had known of the destruction or damage. Furthermore, the Act determines that it is immaterial as to whether such a belief is justified or not if it is honestly held. In effect, this could raise a defence of lawful excuse in that the perpetrators of criminal damage in this case honestly believed, whether justified or not, that members of the public attending the demonstration were entitled to consent to the destruction of the statue by virtue of it being owned by Bristol City Council, for and on behalf of the wider public.
As a result of this case, the government should reform legislation, but ministers must avoid falling into a trap of questioning the jury’s verdict, doing so risks putting ministers in the uncomfortable position of undermining the principles of trial by jury. Instead, ministers should seek to reform the Criminal Damage Act to remove clauses of lawful excuses that can be used in court as a reasonable defence. There should be no lawful excuse for criminal damage where those entitled to consent have not expressly done so. Honestly holding a belief that the owner of the property would consent should no longer be a lawful excuse and it should certainly no longer be immaterial as to whether such a belief is justified or not. It should be for a jury to determine whether such a belief is indeed justified based on evidence put to them in court.
The Criminal Prosecution Service argue that there are limited circumstances where a lawful excuse for criminal damage is a necessary clause in legislation, for example, to protect firefighters from charges relating to third party water damage as a result of extinguishing a fire; however, it can be argued that those protections are already provided by virtue of Section 44 of the Fire & Rescue Services Act 2004, establishing the actions available to firefighters in an emergency.
It would be easy to jump on the bandwagon and call out the jurors for the verdict they reached in the case of the “Colston Four”, but they reached their verdict based on a defence provided within legislation. To strengthen law and order in the public realm and to prevent further instances of criminal damage by a mob intent on erasing passages of British history, the answer should not be to discredit our system of legal process, but to reform it; and ministers would do well to begin by removing lawful excuses for criminal damage.