The Colston Four should never have been charged with criminal damage

According to the jury’s verdict on 5 January 2022, the four defendants who helped to pull down the statue of Edward Colston and throw it into Bristol harbour last year were not guilty of an offence under the Criminal Damage Act 1971 (‘CDA’). We shall never know why the jury decided to acquit the so-called Colston Four: juries do not provide reasons for their decisions and it is itself a criminal offence to disclose their deliberations. However, from the Judge’s summing-up and the defence arguments, it is possible to infer that the jury acquitted for one or more of four reasons.

The background to the prosecution is well-known. On 7 June 2020 and as part of wider protests about the killing of George Floyd by Minneapolis police officer Derek Chauvin, a large group of protestors gathered around the Colston statue in Bristol. Some of the demonstrators detached the statue from its plinth, painted parts of it, then rolled it several hundred yards through the streets of Bristol and dropped it into the harbour. The statue was subsequently retrieved, the graffiti on it conserved and it now lies in the M-shed museum in Bristol.

The first argument (relied on by two of the defendants) was based on a specific defence in the CDA itself: damaging property is lawful where the defendant honestly believes that those he considered to be entitled to consent to the damage would have consented to it had they known of all the circumstances. This defence is heavily subjective: turning on the defendant’s belief, whether reasonable or not. It was therefore open to Mr Graham and Mr Skuse to assert that they thought the statue belonged to the people of Bristol and that they believed that Bristolians would have consented to the damage they caused to it. Despite the subjective framing of the test, it is difficult to accept this defence on the facts of the Colston case.

The first belief (that the statue belonged to the people of Bristol) is simply inconsistent with the same defendant’s further argument (below) that Bristol Council and its officers were guilty of a criminal breach of their public duties in failing to remove the statue. The second asserted belief (that Bristolians would have consented to the statue’s removal in this way) is even more difficult to accept. Neither of these defendants (one of whom did not even live in the City) had taken any steps to seek the views of the people of Bristol. Further, it would not be sufficient that the defendants believed that a majority of citizens wished to have the statue removed, but that they would also have consented to it being removed by demonstrators rather than by the relevant authority after a period of public consultation. Since this argument was relied on by only two of the defendants and all were acquitted, perhaps the jury did not accept this defence. If the jury did reject it, they were correct to do so.

The second argument (relied on in some form by all four defendants) was that they used reasonable force to prevent the commission of a criminal offence. The defendants relied principally on the ‘public display’ of ‘any indecent matter’ (Indecent Displays (Control) Act 1981) and/or the display of a ‘visible representation’ which is ‘abusive’ within the sight of someone likely to be caused ‘distress thereby’ (Public Order Act 1986). Three points about this defence.

First, all the defendants alleged that it was Bristol City Council that was responsible for the relevant offence. As explained above, this is inconsistent with the defence advanced by Graham and Skuse that the statue belonged to the people of Bristol. Second, the argument of all the defendants depends on their believing that the ‘message’ conveyed by the statue is to celebrate Colston as someone who benefitted from the slave trade. As is well-known, the statue was erected in 1895 (more than 150 years after his death) in celebration of Colston’s very substantial charitable work in the City. As with most monuments, the Colston statue does not convey just one message, but a variety of messages to different people.  It is not clear what entitled the white Colston defendants to give effect to their view of the statue’s meaning over all others, particularly as they did so in part in reliance on its impact on ‘Black Bristolians’.

The statue of Edward Colston in Bristol, photographed in c. 1895–1900. Historic England Archive

Finally, even if the defendants genuinely believed that the statue constituted an offence, they were only entitled to use reasonable force to prevent the crime from occurring. This is one area where the standard is not entirely subjective. It may well be reasonable to use force to prevent an on-going assault or to impede the escape of the wrongdoer, but the Colston statue had been on display for over a hundred years. It is difficult therefore to justify the use of force to remove it, rather than doing what most responsible citizens would do if they thought a crime was taking place and report it to the police.

The third argument relied on by the defendants is that they were exercising their rights to freedom of expression (as protected by the European Convention and at common law) in pulling down the statue and rolling it into the harbour and that to convict them of criminal damage for doing so would be a disproportionate interference with their rights. There is no doubt that free speech covers expressive conduct (such as flag-burning) and that the fate of the Colston statue was a legitimate matter of public controversy.

The difficulty here for the defendants is that their decision to express their view about the statue by removing it and throwing it into the harbour effectively took away the right of the vast majority of the citizens of Bristol to have their own say as to the fate of the statue. The right to freedom of expression does not carry the right to express one’s view by whatever means you choose and which drown out (literally in this case) the views of others who disagree with you. On a proper understanding of free speech and its limits, a conviction would not have been disproportionate.

There is one argument upon which the jury would have been correct to acquit and that arises from a peculiarity of the law on criminal damage. The CDA contains no definition of criminal damage and most of the leading cases decline to fill that legislative vacuum, instead insisting that the definition of damage is a question for the tribunal of fact (either magistrates or a jury). One principle which has emerged is that the offence can still be made out even if the damage is not permanent. This makes good sense since the owner may have been put to the cost of repairing the damaged object and has been deprived of its utility in the meantime. Mary Richardson could therefore have been prosecuted under the predecessor to the CDA for slashing the Rokeby Venus in 1914 even though the damage is now invisible to the naked eye.

As such, the fact that the Colston statue was retrieved from the harbour, that the paint could have been removed and the bronze repaired would not have availed the defendants. However, far from restoring the statue, the Council has stated that it wished to preserve the graffiti and the evidence of damage on the basis that it has ‘become part of the story of the statue’. The same applies to the costs of removing it from the harbour. Throwing the statue in the harbour can be regarded as a symbolic mirroring of the fate of many enslaved people in being thrown overboard on the Middle Passage (most notoriously in the Zong massacre of 1781). The fate of the statue on 7 June 2020 is therefore perceived by the Council as enhancing its illustrative value in telling the story of Bristol’s involvement in the slave trade.

This is relevant because, unusually, criminal damage as a relative concept and the crucial factor is the view of the damage taken retrospectively by the owner of the property. By contrast, it does not affect a prosecution for assault if the victim subsequently decides that they ‘deserved a good hiding’, nor one for theft if the owner of stolen property ultimately concludes that the thief deserves to keep it. This curious way of defining criminal damage also means that someone contemplating damaging a work of public art or other property will not know in advance whether their conduct may subsequently turn out to be culpable or incapable of proving the basis of a charge of criminal damage.  It will all depend on the response (in due course) of the owner. That is a strange state of affairs, but means that in the circumstances of this case, the defendants did not need to rely on strained arguments in their defence: there was simply no damage under the CDA as a matter of law.

The Government has made its position on statues clear: they are to remain and it proposes to amend the law to ensure that all charges of criminal damage in relation to memorials will in future be tried by a jury. As the Colston verdict demonstrates, juries are much more likely to acquit than are magistrates and the reform may therefore provide less, rather than greater, protection for memorials. The relevance of the Colston verdict for other statues and monuments is less easy to predict since, as lawyers are always keen to point out, all cases turn on their individual facts. One relevant factor in relation to the prevention of crime defence will be whether the statue is displayed in public. For example, the prohibition on indecent displays does not apply to displays in ‘an art gallery or museum and visible only from within the gallery or museum’. Different considerations would also apply to an attempt to topple the statue of Cecil Rhodes which, although in public, stands three-storey above The High Street in Oxford. This is because the statutory defences under the CDA do not apply where the defendant to a change of criminal damage was reckless as to whether life may be endangered. Further, the argument based on damage altering the purpose and hence the value of an object will not apply so easily to all statues of those who invested in the Royal African Company. The Colston statue was not of great artistic merit: even English Heritage justified its listing in part on the basis that it formed part of a group with other Bristol memorials.  It would be difficult to argue that any amount of repurposing by its owners would be equivalent to the loss of value caused by damage to, for example, Rysbrack’s statue of John Locke which stands in the library at Christ Church or even the same artist’s memorial to Colston in All Saint’s Church – just around the corner from the now empty plinth.

Ivan Hare QC is a member of Blackstone Chambers. He specialises in public law.

This article draws on the author’s “Statues, Statute and Freedom of Expression” which appeared in [2021] Public Law 691–706. The author is grateful to Tom Wainwright and Blinne Ni Ghralaigh, Counsel for three of the defendants, for providing copies of their written submissions.