The Colston Four and ‘perverse’ jury verdicts: a very English tradition

The UK “Colston Four” trial of various people involved in removing the statue of the slave trader (and “philanthropist”) Edwin Colston from the streets of Bristol has focused attention on so-called “perverse” court verdicts and what, if anything, to do about them. Those lovers of England’s Common Law, Britain’s “rule of law”, trial by jury and Magna Carta (from which English jury trial may be seen to have derived) feel there is something wrong when that system allows protesters to apparently flout the law for political purpose.

Yet “perverse” verdicts are part of the great English legal tradition with almost constitutional import, greatly admired as a way of spurring social progress or resisting an overwheening authority. The believers of our great British traditions and the rule of law might perhaps be proud of the fact that occasionally a defiant jury has achieved a result of social importance through wholly legal means (bringing in a verdict).

The Seven Bishops case
A jury’s verdict does not set a precedent. Each case is on the facts; the jury’s decision cannot (in a legal sense) be impugned (unlike the rulings of judges or their summings up for juries in criminal cases).  But a  jury did set a precedent of sorts once – the ultimate precedent, that juries shall not be browbeaten by the authorities into giving the “correct” verdict. It is the precedent that underlined that juries should come to their own view on the cases before them, however angry it makes the authorities (or, in the present day, the newspaper people even before they were able to read the judge’s comments in the Colston case). The pride the British people have in the jury system (as enunciated in centuries of good old-fashioned Angolo-centric British history, none of your “woke” quasi-Marxist stuff) derives from that case: the Trial of the Seven Bishops.

This took place at a time not unlike ours, with a Catholic King, James II, seeking to fundamentally change the ideology of his kingdom, based as it was on Protestantism. He wished to lift the various legal bars that kept Catholics out of public positions. Parliament would not do this so he dismissed it and issued, using a monarch’s prerogative powers, a  “Declaration of Indulgence” in 1687. This purported to extend “religious toleration” to Catholics and some Nonconformists (non-mainstream Protestants).

Traditionally history has generally seen this, not as a benign, inclusive and progressive act, but as a naked attempt to change the law that in effect barred Catholics from public offices so he could get his placemen into politics, the Army and the governing body of Oxford University – ultimately to ensure the ideological/ constitutional changes he wanted to see. The fear was that he would exercise power in an autocratic manner with less (or no) reliance on Parliament.

The Declaration had no great effect, so James issued a second in 1688, which he insisted bishops should read out to congregations up and down the country. The clergy were extremely reluctant to do so, not least because it would look as if the Church of England favoured the changes (which it didn’t since they would be detrimental to Anglican interests).

The Archbishop of Canterbury, William Sancroft, and six bishops drew up a petition requesting that they should not have to do an illegal act – read out an edict not sanctioned by Parliament. The petition was “leaked”, and rushed into print for an eager public around London.

The seven bishops were arrested for seditious libel – the denial of the king’s right of dispensation (to “dispense” with or lift a law, in this case the laws banning Catholics). They were imprisoned in the Tower of London.

The bishops were brought to trial in June 1688. Judge Richard Alibone (or Allibond), a Catholic appointed by James, stated that anything said against the exercise of government constituted criminal libel (probably true at the time), but the other judges were split and confused on the matter and as a result left the jury to decide. This was quite an innovation, not necessarily followed in later cases but enshrined in statute more than 100 years later in the Libel Act 1792 (known as Fox’s Act after Charles James Fox, a Whig politician). This says that it shall

“be competent to the jury impanelled [chosen] to try the same [ie criminal libel cases] to give their verdict upon the whole matter in issue” adding that the jury “shall not be required or directed, by the court or the judge before whom such an indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel”.

In the Seven Bishops case, if the judges had declared the petition libel, the jury would have had no choice but to convict since there was no doubt the bishops had produced it. This seems to be how critics of the Colston verdict would like it to be: that a judge declares the act illegal and the jury simply establishes whether the accused did it.

Since the 12 members of the jury in the Bishops case were allowed to make their own judgment, they could decide the document was not a libel – that it was true – and therefore acquit the bishops. This is exactly what they did (with only one, who happened to be the king’s brewer, dissenting).

The Colston Four
In the Colston statue, case, however, the jury had no need to simply defy a judge or fly in the face of the law to bring a not guilty verdict on the criminal damage charges. We don’t know why they acquitted since their deliberations are secret and their individual thoughts unfathomable. But they had had explained to them several wholly legitimate defences: broadly that the accused honestly believed the statue was unlawfully “indecent” or constituted a “visible representation which is threatening or abusive within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby” (Section 5 of the Public Order Act 1986); that its owners really wanted it removed; and/or that a finding of guilt would disproportionately affect their freedom of expression on a matter of importance.

The Colston Four jury were exposed to legal, historical and moral ideas that they had probably never heard of before entering the court. One cannot help but think that, far from being “perverse”, the jurors may have put much thought into their verdict and that it was at one with the great tradition of the rule of law and separation of powers that we are supposed to believe in – especially because, in a free country, our system of justice is capable of throwing up surprises when the issue is loaded with political significance and controversy.

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Some more up to date “perverse” verdicts:
“Not guilty: the Greenpeace activists who used climate change as a legal defence”, The Guardian 11 September 2008. This lists similar cases.

• In 1985 civil servant Clive Ponting was acquitted for leaking documents on the sinking of the Belgrano during the Falklands war even though “there was no doubt he had done so and he had no legal defence to the charge” and “even though the trial judge, in effect, ordered them [the jury] to convict”. Marcel Berlins and Clare Dyer: Perverting the course of Justice? Guardian 22 January 2001.

Note: The right of a jury to decide libel cases has been amended in the 2013 Defamation Act. See this piece for some of the implications: How Tim Yeo and Warby J buried the Seven Bishops

The Colston Four case summing up
The directions of the judge in the “Colston Four” case R v Milo Ponsford et al are extracted below (courtesy Matthew Scott; You can read his publication of the complete directions here: Barristerblogger). Here is the central material on the defences to the criminal damage charges.

What is it that has to be proved by the Prosecution for ‘Criminal Damage’?

The indictment charges contain a number of separate ingredients, all of which the Prosecution must prove before you can convict a Defendant. The Prosecution has to prove all of the following against a Defendant (D) before you may find him/her guilty of causing criminal damage:-

1) D, jointly and together with others

2) damaged property;

3) the property belonged to another;

4) D intended to damage it, or was reckless as to whether it would be damaged; and

5) D did not have a lawful excuse for damaging it.

We are going to examine each of those five ingredients in a little more detail:-

1. The prosecution alleges that the Defendants acted “jointly and together with others”.
   The law is that a person may be guilty of a crime either by carrying it out themselves, or, if they intended that the crime should be committed, by deliberately assisting or encouraging or causing it to be committed, even if it is actually carried out by others.
   A Defendant in this case may therefore be guilty, even if they did not personally cause damage to the statue, if they deliberately assisted/encouraged/caused others to damage it by providing ropes or by attaching ropes to the statue, intending to assist others to intentionally or recklessly cause damage to the statue.

2. Property is “damaged” if it is temporarily or permanently physically harmed. Whether you are sure there was physical harm to the statue or not (which is a question of fact and degree) is a question for you to decide on the evidence which you have heard.

3. Property is to be treated as “belonging” to those who have custody or control of it and to those who have any proprietary right or interest in it. The Prosecution case is that the statue was maintained by Bristol City Council and held in trust on behalf of the people of Bristol. The Defendants have not suggested that the statue belonged exclusively to one or more of them – they do not dispute that it “belonged to another”.

4. “Intending to damage the statue, or being reckless as to whether it would be damaged.” ‘Intending’ is a straightforward word which needs no further definition.
D would have acted ‘recklessly’ as to whether the statue was damaged if D was aware of a risk that damage would occur and it was, in the circumstances known to D, unreasonable to take the risk. If D was unaware of a risk that damage would occur then D could not have been reckless.

5. It is for the Prosecution to disprove that a Defendant had a “lawful excuse” for damaging someone else’s property. In this case it is being argued that a D had one (or more) lawful excuses. You will have to examine the lawful excuses set out below and decide if the Prosecution has disproved them.

i) 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[efendants] 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 [Indecent Displays (Control) Act] 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 [Public Order Act 1986]. 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.)

Neither Milo Ponsford nor Sage Willoughby have presented evidence that could form the basis of an argument that they had this lawful excuse. Rhian Graham and Jake Skuse have given evidence to the effect that they had this lawful excuse for their actions, saying that on 7 June 2020 they honestly believed the statue was owned by the people of Bristol and honestly believed that, had the people of Bristol known of the damage and its circumstances, they would have consented to what was done. The Prosecution argues that there is no way that they could possibly have honestly believed that the people of Bristol would have consented to what they did because they didn’t take any steps to find out. If you consider that this lawful excuse applied, or may have applied, in the case of either of those two Defendants, then the Prosecution would have failed to disprove it and you will find that Defendant ‘not guilty’.

The final lawful excuse you have to consider concerns all four defendants (and, again, the Prosecution has the burden of disproving it):-

iii) Would convicting D be a disproportionate interference with his/her rights?

Courts must read and give effect to legislation such as the Criminal Damage Act in a manner which is compatible with a number of rights which we all have.

Two of those rights are:

• the right to freedom of thought and conscience and to manifest one’s beliefs;
• the right to freedom of expression, including to hold opinions and impart ideas.

These rights protect not only beliefs, such as anti-racism, and speech itself, but also actions associated with protest. Even where those actions have more than a minimal impact on the rights of other people, they need not result in a conviction. It is all a matter of fact and degree. Limitations on these rights are permitted under laws like the Criminal Damage Act if they are necessary in a democratic society in the interests of public safety or for the protection of the rights and freedoms of others. It requires balancing the defendants’ rights to freedom of conscience and belief, to freedom of expression and to protest, as against the interests of public safety and the protection of the rights and freedoms of others, such as the property rights of the Council.

The Ds will argue that even if you reject all of their other arguments, if you were to convict them it would be a disproportionate interference with them exercising those rights. You will therefore have to decide if the Prosecution made you sure that convicting them of criminal damage would be a proportionate interference with them exercising those rights. Even if you are sure that all the other elements of the crime of criminal damage are made out and that no other lawful excuse applies, you must go on to consider whether it is necessary in a democratic society, in the interests of public safety or for the protection of the rights of others, that the defendants should be convicted for their actions.

Another way of looking at that question is to ask whether the interference in the defendants’ rights, which a conviction for the offence of criminal damage would cause, is proportionate in all the circumstances, including the individual actions of each D. It is your task to make an assessment of where the balance lies, having regard to all the facts in the case. In considering whether a conviction would be disproportionate for any D, the question for you is not whether you agree with their actions or their aims, nor is it about sympathy or whether you think they are likeable. Everyone in the country has these rights and we each enjoy identical protection of those rights. This means that people with whom we fundamentally disagree have exactly the same protection as those with whom we agree.

When examining the facts of this case and deciding whether you are sure it would be proportionate to convict a Defendant, you may wish to consider the following factors. The list is not intended to be exhaustive and you are not obliged to consider any individual factor if you do not consider it to be helpful in reaching your verdict. It is also up to you what weight to give the factors you consider helpful.

• The extent of the interference with the rights of others, notably the rights of Bristol City Council and of other Bristolians on whose behalf they held this statue in trust.

• Whether the Defendant believed in the views which motivated their actions.

•Whether those views relate to very important issues.

• The importance to the Defendant of the method of protest adopted.

• Whether the actions of the Defendant was directly aimed at the matter of which they disapproved.

• Whether the Defendant’s actions presented a danger to public safety.

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