The Attorney General, the Rt. Hon. Suella Braverman QC MP, has decided to submit questions of law to the Court of Appeal regarding the proper scope of defenses to criminal charges arising from protests and the guidelines that should be given to juries in such cases.
The referral concerns the protest against the Colston statue. The prosecutor concluded that this case led to uncertainty about the interplay between the offense of criminal harm and the relevant rights to peaceful protest. The prosecutor’s action will not overturn the acquittals in this case.
The Court of Appeal will be asked to clarify the law as to whether a person can use a human rights defense when charged with criminal damage. The court will also consider whether juries should be asked to decide whether a conviction for criminal prejudice constitutes a “proportionate interference” with the defendant’s human rights, in particular the right to protest and freedom of expression. In the Colston statue case, the judge told the jury that before he could convict he had to be sure that it would constitute a “proportionate interference” (i.e. consistent) with the exercise by defendants of their rights to freedom of thought. and freedom of expression.
Acting independently of government, in her role as guardian of the public interest, the Attorney General made the decision in the interest of future cases involving the same point of law.
Since 2000, there have been 19 cases where this power has been used by attorneys general. The last time this power was used was in December 2020, when the prosecutor clarified the law on sexual assault.
Commenting on his decision, the Attorney General said:
After careful consideration, I have decided to refer the Colston statue case to the Court of Appeal to clarify the law on protests.
The trial by jury is an important guardian of freedom and, in this regard, the legal instructions given to the jury are essential. It is in the public interest to clarify the legal issues raised in these cases for the future. This is a legal issue that is separate from the politics of the case at hand.
Notes to Editors
- The prosecutor has the power to seek clarification from the Court of Appeal on important points of law in certain cases where a defendant has been acquitted at trial – meaning “found not guilty”. The Criminal Justice Act 1972 gives the Attorney General the power to submit a question of law to the Court of Appeal.
- The attorney referred a defendant (who cannot be named for legal reasons) of the Colston charge to the Court. Indeed, their file contains all the questions on which the prosecutor wants the Court to clarify the law. The individual’s acquittal is not affected.
- The questions put to the Court of Appeal are as follows:
- Does the offense of criminal damage fall within this category of offences, identified in James v DPP  1 WLR 2118 and DPP against Cuciurean  EWHC 736 (Admin), where conviction for the offense is – inherently and without the need to consider proportionality separately in individual cases – a justified and proportionate impairment of any right incurred under Articles 9, 10 and 11 of the European Convention on Human Rights (“the Convention”)? If not, and it is necessary to consider human rights issues in individual criminal damage cases:
- What principles should Crown Court judges apply in determining whether the qualified rights set out in Articles 9, 10 and 11 of the Convention are engaged by the potential conviction of defendants purporting to commit an act of protest? And
- If these rights are engaged, under what circumstances should any question of proportionality be removed from a jury?
- More information on when this power was last used can be found here.