The acquittals of those charged with tearing down the statue of Edward Colston have been characterised as an attack on the rule of law. It was nothing of the sort.
The right of juries to return verdicts in accordance with their consciences — whatever the judge may tell them — was established in 1670 when jurors refused to convict Penn and Mead, two Quaker preachers, of unlawful assembly. The judge ordered the jury to be kept without “food, drink heat or tobacco” until they delivered guilty verdicts. After 2 days the jury returned verdicts of Not Guilty, to the fury of the judge who fined them for contempt of court. A single juror refused to pay the fine and was committed to Newgate Gaol. His appeal to the Court of Common Pleas established that jurors could not be punished for returning the “wrong” verdict.
So, far from it being unlawful, the common law of England and Wales has long permitted juries to return perverse acquittals. That may indeed be one of the system’s principal justifications. We have only to look to Hong Kong to see how much easier it is for a despotic regime to crush dissent when they do not need to worry about juries. Trials under Beijing’s National Security Law are, of course, held without juries.
Only last month the Justice Secretary himself suggested that his proposed “British Bill of Rights” would contain protections for what he called “the ancient right of trial by jury.” A few perverse acquittals — and over the years there have certainly been some very questionable verdicts — are a small price to pay to preserve the jury as the final protection against unjust prosecutions.
But in fact the Colston verdicts were not even perverse. Because juries give no reasons for their verdicts we cannot know precisely how they reached them. What we do know is that the judge, the widely respected Recorder of Bristol who is no woke virtue-signaller, left the jury with at least three possible defences.
The first arose under the Criminal Damage Act — the act under which they were all charged, which provides that a person should not be convicted if they genuinely believed that the person they thought was authorised to consent to the damage would have consented. At least two of the protestors said they believed that the people of Bristol, to whom the statue was originally gifted, would have agreed to its destruction. The wording of the 1971 legislation is quite clear: “It is immaterial whether a belief is justified or not if it is honestly held.”
The second defence was based upon the equally well-established legal principle that a person is entitled to use reasonable force to prevent the commission of a crime. It is at root the same legal principle that permits the use of force in self-defence. The argument — and it was indeed somewhat imaginative — was that the display of a slaver’s statue was itself a crime, under the rarely encountered Indecent Displays (Control) Act 1981, of “publicly displaying any indecent matter”.
The third relied upon a newer legal principle clarified by the Supreme Court in a case called Ziegler last year. It is that the right to protest is protected under the European Convention on Human Rights, so that an interference with that right is justified only if it is “proportionate”. The judge left to the jury the question of whether convicting the defendants was a proportionate response to their protest.
Another ingenious, if somewhat dubious, argument was that in fact no damage was caused to the statue, since the attendant publicity has transformed a dull Victorian statue into a valuable piece of art.
Does the verdict entitle anyone now to damage any statue or monument of which they disapprove? Certainly not. Anyone damaging statues in the future will still face prosecution and the reality is that there will be few instances where juries will show similar indulgence, and if the smashing of statues becomes a regular feature of protests there will be even fewer.
No legal precedent has been set: a jury’s verdict has no legal significance of any kind.
That does not mean that the verdicts are without any wider consequences: the fear that protestors will feel more emboldened to damage other property is not entirely unreasonable. But to prevent the possibility of similar verdicts in the future would require the destruction of the jury system itself. That would be far worse than rolling Colston’s statue into Bristol Harbour.