Human Rights as a defence to charges of Criminal Damage?

The Court of Appeal concludes that Human Rights law is no defence to charges of criminal damage for protests which result in significant damage to property.

 

In June 2020, the statue of the trans-Atlantic slave trader Edward Colston was toppled during protests in Bristol, sparked by the Black Lives Matter movement.

 

Over a period of years, a variety of different avenues had been pursued to either remove the statue altogether, or alternatively to add a plaque to the statue contextualising the source of the ‘philanthropist’s’ wealth, so that his involvement in the barbaric trading of human lives was not whitewashed by his legacy to the city.

 

Reliance was placed on the defendants’ Convention rights and issues such as the proportionality of the prosecution were raised by counsel on behalf of the defendants. Ultimately, the reasons that led the jury to acquit will never be known, but in a bid to clarify the interplay between the ECHR and criminal damage occasioned during violent or ‘non-peaceful’ protest, the then Attorney General (and now Home Secretary) referred the case of the Colston Four to the Court of Appeal.

 

The Court of Appeal considered the AG’s reference and concluded that, whilst transient and insignificant damage occasioned in the course of protest may be capable of engaging convention rights, significant damage would not.

 

The Court concluded that prosecution and conviction for causing significant damage to property, even if inflicted in a way which was ‘peaceful’ could not be disproportionate in Convention terms. As an indicator, the Court held that ‘significant damage’ would be caused a long way below the £5000 threshold for cases to be tried summarily. Only in those limited circumstances, of minor or trivial damage, could a Court conceivably find that a conviction may not be a proportionate response in the context of a protest.

 

This case provides some useful guidance for practitioners, albeit it has arguably significantly narrowed the scope for submissions which engage the ECHR in cases of criminal damage arising from protest.

 

The judgment makes clear that those causing significant damage, or attempting to cause the same, for example by throwing soup at a Van Gogh, are likely to find themselves deprived of reliance upon Convention rights in the defence of their actions.

 

The full judgment can be found here.