Human rights: Protest as a defence to vandalism?

In Attorney General’s Reference No 1 of 2022 [2022] EWCA Crim 1259 (28 September 2022), the Court of Appeal (Criminal Division) addressed whether a protester’s Convention rights are engaged when facing prosecution for the statutory offence of criminal damage.

Background

Following the trial in Bristol Crown Court of four protesters for alleged criminal damage to the statue of Edward Colston, a reference was made by the Attorney General on, inter alia, the extent to which the European Convention on Human Rights sanctioned the use of violence against property during protest, thereby rendering lawful damage to property.

On 7 June 2020, protestors tied ropes around the statue and pulled it to the ground. They then rolled the statue through the streets to the harbour where it was heaved into the water.

Causing damage to property is a statutory offence in England & Wales, pursuant to the Criminal Damage Act 1971, s 1. It is subject to a defence of “lawful excuse”. The definition is comparable to both the Scots common law offence of malicious damage, and vandalism as defined in the Criminal Law (Consolidation) (Scotland) Act 1995, s 52. The statute provides the defence of “reasonable excuse”. In Scotland, it is for the Crown to meet the defence. This article does not intend to dissect the nuances between the law in each jurisdiction, but to consider the potential application of this judgment in Scotland.

On 5 January 2022, a jury acquitted the four protesters. While a range of defences were run at trial, the subject of the Attorney General’s reference was whether conviction for damage to the statue amounted to a disproportionate interference with the right to protest, as protected by the Convention.

The Attorney General raised three questions:

1. Does the offence of criminal damage fall within that category of offences, identified in James v DPP [2016] 1 WLR 2118 and DPP v Cuciurean [2022] EWHC 736 (Admin), for which conviction is – intrinsically and without the need for a separate consideration of proportionality in individual cases – a justified and proportionate interference with any rights engaged under ECHR articles 9-11?
2. If not, and it is necessary to consider human rights issues in individual cases of criminal damage, what principles should judges apply when determining whether the qualified rights in articles 9-11 are engaged by the potential conviction of defendants purporting to be carrying out an act of protest?
3. If those rights are engaged, under what circumstances should any question of proportionality be withdrawn from a jury?

Question 1

The court concluded that prosecution and conviction for causing significant damage to property would fall outwith the Convention, either because the conduct was violent or not peaceful, or (even if not) because prosecution and conviction would clearly be proportionate (para 115). While the offence of criminal damage encompasses causing damage which is minor or temporary, Strasbourg case law suggests there would need to be a case-specific assessment of the proportionality of conviction at least in connection with damage to public property.

There are circumstances, albeit limited, whereby the decision-maker should complete a fact-specific proportionality assessment to justify any conviction as a proportionate interference with rights engaged under articles 9-11 (para 116).

Questions 2 and 3

Addressing questions 2 and 3 together, the court confirmed that the Convention does not provide protection to those who cause criminal damage during protest which is violent or not peaceful, and accordingly articles 9-11 are not engaged. Moreover, prosecution and conviction for causing significant damage to property, even if inflicted in a way which is “peaceful”, could not be disproportionate in Convention terms (para 120).

Given the nature of cases that are heard in the Crown Court, it is inevitable that the issue should not be left to the jury, the court added. The relevant conduct in question would on any view not be peaceful; alternatively the damage was significant; or both (para 120).

Emphasis was placed on the careful exercise of prosecutorial discretion when deciding to proceed to trial. The Code for Crown Prosecutors should be applied in the context of the principles governing articles 9, 10 and 11 with a clear eye on the proportionality of prosecution and conviction (para 121).

Commentary

While a decision of the Court of Appeal, this judgment reiterates the important role of prosecutors in deciding whether to take proceedings against an individual for malicious damage and vandalism caused when protesting.

It will be interesting to observe (1) whether accused persons place reliance on Convention rights as a defence to these offences; and (2) in what circumstances will a fact-specific proportionality assessment be undertaken when considering conviction as a proportionate interference with an accused’s Convention rights. Whether reliance on rights such as the freedom of protest will suffice, will depend on the facts and circumstances of each case.

To aid practitioners and decision-makers, the Court of Appeal helpfully provided one example whereby prosecution or conviction may be a disproportionate response. In paras 29 and 116, the court identified that scrawling a message on a pavement using water soluble paint might technically suffice to sustain a charge of criminal damage, but to prosecute or convict for doing so as part of a political protest might well be a disproportionate response.