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Colston statue ruling is attack on right to protest, warn leading barristers

The Court of Appeal said today the ‘Colston Four’ should not have been able to use a human rights defence

Blyth Brentnall
28 September 2022, 5.20pm

Black Lives Matter activists dump the statue of Edward Colston in Bristol Harbour, June 2020

PA Images / Alamy Stock Photo

The British Court of Appeal’s verdict today on the toppling of Colston’s statue will restrict peaceful protesters’ ability to defend their actions in court, leading criminal barristers warn.

In an appeal triggered by home secretary Suella Braverman in her previous role as attorney general, Lord Chief Justice Lord Burnett ruled against protesters’ ability to use human rights defences when they have been charged with criminal damage.

The judge described the toppling of Colston’s statue in protest against racism as a “violent” act, despite the protesters’ intentions. Rhian Graham, Milo Ponsford, Sage Willoughby and Jake Skuse – referred to as the ‘Colston Four’ – were involved in pulling down the likeness of Colston, who was responsible for shipping more people to be used as slaves than any other trader. All four were acquitted of causing criminal damage in January.

Today’s decision does not overturn that verdict, but will affect similar cases in future.

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It has raised concerns from leading barristers at law firms Kelly’s and Hodge Jones & Allen.

“I am really disappointed,” said Raj Chada, a barrister at Hodge Jones & Allen who defended the Colston Four on trial.

“I think that the court of appeal simply got it wrong – it wasn’t violent and the value of the statue went up.”

Protesters charged with criminal damage will now find it harder to mount defences that use the European Convention of Human Rights (ECHR).

Today’s judgment restricts the circumstances in which defendants can use their rights under Articles 9, 10 and 11 of the ECHR, which constitute the right to protest in this case.

These defences will no longer apply in protest cases when the damage caused is deemed “violent” or “significant”. This would include costs “a long way below” the £5,000 minimum for cases to go to the Crown Court.

Criminal defence lawyer at Kelly’s, Lydia Dagostino, said: “This decision is a very concerning development, restricting the protection that the ECHR affords peaceful protestors, at a time when many people feel that direct action is their only means of effectively participating in democracy.”

Chada added: “The acquittal of the Colston Four was a moment of social history. A jury in the form of the defendants’ peers acquitted them all, and however the verdict was interpreted, it echoed across the world – part of the tapestry of how this country comes to terms with its imperial and slave owning past.”

Police can charge protesters with criminal damage for taking direct action that causes permanent as well as temporary damage to property. This can include glueing oneself to an object or surface – a tactic frequently used by protesters wishing to cause disruption in order to pressurise the government or corporations to act.

Human rights defences have helped protesters win historic cases for social justice and environmental causes. They include the women who disarmed a fighter jet destined to aid the violent suppression of people in East Timor as well as a case in which protesters called on King’s College London to divest from fossil fuels.

Announcing the verdict, Lord Burnett said: “The circumstances in which the statue was damaged did not involve peaceful protest. The toppling of the statute was violent. Moreover, the damage to the statue was significant. On both these bases we conclude that the prosecution was correct in its submission at the abuse hearing that the conduct in question fell outside the protection of the Convention.”

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