The jury had a number of clear routes to acquitting the Colston Four, to cast them as a latter-day Penn and Mead is wrong
People appear to have been variously outraged and delighted by the not guilty verdicts on the demonstrators who admitted pulling down the statue of Sir Edward Colston and rolling it into Bristol Harbour.
They should not have been surprised. Juries have a long history of refusing to convict political protestors even when the evidence seems overwhelming.
This has been so for centuries. The 1670 case that first established the right of jurors to refuse to convict in the face of overwhelming evidence (and judicial bullying) was that of the Quaker preachers Penn and Mead, who had been charged with unlawful assembly. When the jury refused to convict them, the judge fined them for contempt of court. One of the recalcitrant jurors refused to pay and was gaoled in Newgate prison. A higher court set his conviction aside, establishing the principle that, however strong the evidence may be, a judge cannot force a jury to convict.
Their example was famously followed in America by a Boston Grand Jury which refused to indict rioters over the Boston Tea Party in 1774.
The power of a jury to refuse to convict even when the law appears to require it to do so remains one of the most important justifications for leaving serious criminal cases in the hands of juries. It is no surprise, for example, that in imposing its despotic National Security Law in Hong Kong, the Chinese Communist Party took care to ensure that cases under it should be tried by judge alone.
But although the jury would probably have been reluctant to convict the Colston Four whatever the judge had said, to cast them as latter-day Penn and Mead would be quite wrong.
Far from attempting to bully the jury into convictions, the trial judge afforded the defendants a characteristically fair trial. He left the jury with a number of clear routes to an acquittal, some more controversial than others.
The direction which has perhaps caused most controversy was that they should not convict the defendants if to do so would be a “disproportionate interference” with their right to protest.
The Supreme Court examined the scope of this defence last year in DPP v. Ziegler  UKSC 23. It ruled that protestors against the arms trade were entitled to be acquitted of obstructing the highway because their convictions would have been an unjustified interference with the right to protest under Articles 10 and 11 of the European Convention on Human Rights.
Their protest was some way removed from the facts of the Colston case. It involved a 90 minute “lie down” in a road leading to the Excel Centre in London where an arms fair was being held. No damage was done and there was no generalised disorder.
Referring the case to the Court of Appeal is not without its risks for the Attorney General
The Colston trial judge – the widely respected Recorder of Bristol Peter Blair QC – felt that the same defence should be left open to those who tore down the statue.
There have been calls for the prosecution to appeal the verdicts. That cannot be done because under our system jury acquittals are virtually sacrosanct (there are some rare exceptions, for example if jury nobbling has been proved, but none that could possibly apply in this case).
However, although she cannot appeal, the Attorney-General Suella Braverman has said that she is considering referring the case to the Court of Appeal to obtain its opinion on points of law that arose in the trial. Whatever the outcome of such a reference, the acquittals will remain.
One question she might want the higher courts to consider is whether the judge was right to leave to the jury the question of deciding if a conviction for criminal damage during the protest would have been “disproportionate.” Decisions involving the balancing of competing human rights are more usually for judges to make, not juries. Possibly other judges would have dealt with the question differently, but that is not to say that Judge Blair was wrong. Trial judges have a pretty wide discretion.
Referring the case is not without its risks for the Attorney General. The Court of Appeal will be unsympathetic if it perceives that the reference procedure is being used for political grandstanding.
Indeed, Ms Braverman herself has previously received (by judicial standards) the stinging criticism that her submissions were “unusual” when she attempted to argue that sentences imposed on the killers of PC Harper were unduly lenient. It would be embarrassing if her reference of another high-profile case were to receive a similar reception.
And of course, the Court may well simply uphold the Recorder of Bristol’s direction. No legal precedent has been set by the trial; Crown Court verdicts do not set such precedents. But if the case is considered by the Court of Appeal – or ultimately the Supreme Court – a precedent will be set, and it will not necessarily be the one that the Attorney, or her political allies, are hoping for.
Matthew Scott is a criminal barrister at Pump Court Chambers.
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