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Showing posts sorted by relevance for query COLSTON. Sort by date Show all posts
Showing posts sorted by relevance for query COLSTON. Sort by date Show all posts

Wednesday, 12 January 2022

COLSTON STATUE VERDICT//PREDICTIVE OF PROBLEMS YET TO COME


The trial and acquittal of the Colston 4 seems to have divided opinion of commenters along cultural lines; woke-v-conservative: self styled legal eagles who seem to value the letter of the law against those legal observers who value the spirit of that law when it comes into conflict with the letter. 

The action which precipitated the whole sorry affair was the death of a black man murdered by police in the state of Minnesota USA.  Apparently left leaning young white radicals cloaked in the shadow of some home grown black activists who themselves adopted the history of black slavery in America to their own political ends took it upon themselves to cause damage to the statue of an infamous slave trader of the 17th century. This trial could have been conducted in the magistrates court but the defendants opted for jury trial as was of course their right the charge being an either way matter. Whether or not such choice should remain in English law is another (contentious) matter.  The essence of the case rests in the legal definition of criminal damage.

Criminal Damage Act 1971. Section 1(1) provides:

“A person who without lawful excuse destroys or damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”
To prove the charge the CPS must succeed in showing:-

The Defendant damaged property;
The property belonged to another;
The Defendant intended to damage the property or was reckless as to whether it would be damaged; and
The Defendant did not have a lawful excuse for damaging the property.

The defendants` defence was based on their having a "lawful excuse" for their actions. For the prosecution to make its case it had to demonstrate that the defence had not succeeded.  I have copied below the judge`s legal directions to the jury. 

LEGAL DIRECTIONS – JUDGE’S HANDOUT

My jobs are:-
To explain to you the law which applies in this case.
I am responsible for decisions about what legal rules you have to follow.
All of my directions about the law, set out in this document, are compulsory for you to follow – you have no choice.  If I get them wrong they can be corrected by an appeal.
To remind you of the core parts of the evidence to help you remember what witnesses have said, but you are the assessors of the evidence, not me.  I will do that after you have heard the closing speeches of the advocates in the case.

Your jobs –
Appoint someone to chair your discussions.  Choose someone in any way you want.  That person should ensure everyone is given the opportunity of expressing their views and everyone listens respectfully to each other.  The person you choose to chair your discussions doesn’t have any special status – you are all equally important – you each have one vote.  When you have made up your minds one of you will need to act as your spokesperson and answer a series of questions from the court clerk to tell us what verdicts you have reached.
Make the necessary decisions about the facts of this case, as a group of the 12 of you together, in order to come to your agreed verdicts of either ‘guilty’ or ‘not guilty’.  Here are some guidelines about how to approach your task
Assess what witnesses have said and assess the other material placed before you so as to decide what facts have been proved.
You are the only judges of the evidence. 
Throughout your discussions as a jury you have to decide on the facts of the case.  That’s not for me, nor anyone else.
Respect each others’ opinions and value the different viewpoints you each bring to the case.
Be fair and give everyone a chance to speak.
It is okay to change your mind.
Listen to one another. 
Do not be afraid to speak up and express your views
Do not let yourself be pressured into changing your opinion, and do not pressure anyone else.
Do not rush into a verdict to save time.  Everyone involved in this case deserves your attention and thoughtful consideration.
Do not under any circumstances make your own inquiries about anything to do with the case (as explained in the handout “Your Legal Responsibilities as a Juror” that you received on the first day of the trial).
If someone is not following the instructions in this document, or refuses to engage, or relies on other information outside of the evidence presented to you then you must let me know by sending me a note straight away.
You can vote on where you have all got to in your views at any stage of your discussions.
You can take votes by raising your hands or by writing it down – that is up to you.
Your verdicts have to be unanimous: 12-0 decisions.  (If the time were to come when I could accept any verdict from you involving fewer votes than 12 in favour of it you must wait until I call you back into court and tell you about it.)

Who has the job of proving the facts of the case?
The Prosecution has brought the case to court, so the Prosecution has the burden of proving its allegations.
A Defendant does not have to prove anything or disprove anything.
How is something ‘proved’?
Something is proved if, and only if, you are sure about it in the light of all of the evidence you have heard on that topic.
If, in the light of all of the evidence on that topic, you are not sure about it, then it hasn’t been proved.

Separate verdicts
There are four Defendants and so there are four verdicts of ‘guilty’ or ‘not guilty’ you have to reach. 
You must examine the evidence in relation to each Defendant – one by one, reaching a separate verdict on each, based upon your analysis of the evidence against each of them. 
Your verdicts may well all be the same, but they might be different.   
It all depends on your view of the evidence against each.
What is it that has to be proved by the Prosecution for ‘Criminal Damage’?
The indictment charges contain a number of separate ingredients, all of which the Prosecution must prove before you can convict a Defendant. 

The Prosecution has to prove all of the following against a Defendant (D) before you may find him/her guilty of causing criminal damage:-
1)         D, jointly and together with others
2)         damaged property;
3)         the property belonged to another;
4)         D intended to damage it, or was reckless as to whether it would be  damaged; and
5)         D did not have a lawful excuse for damaging it.
We are going to examine each of those five ingredients in a little more detail:-
The prosecution alleges that the Defendants acted “jointly and together with others”.
The law is that a person may be guilty of a crime either by carrying it out themselves, or, if they intended that the crime should be committed, by deliberately assisting or encouraging or causing it to be committed, even if it is actually carried out by others. 
A Defendant in this case may therefore be guilty, even if they did not personally cause damage to the statue, if they deliberately assisted/encouraged/caused others to damage it by providing ropes or by attaching ropes to the statue, intending to assist others to intentionally or recklessly cause damage to the statue.
Property is “damaged” if it is temporarily or permanently physically harmed.  Whether you are sure there was physical harm to the statue or not (which is a question of fact and degree) is a question for you to decide on the evidence which you have heard. 
Property is to be treated as “belonging” to those who have custody or control of it and to those who have any proprietary right or interest in it.  The Prosecution case is that the statue was maintained by Bristol City Council and held in trust on behalf of the people of Bristol.  The Defendants have not suggested that the statue belonged exclusively to one or more of them – they do not dispute that it “belonged to another”.     
“Intending to damage the statue, or being reckless as to whether it would be damaged.”  ‘Intending’ is a straightforward word which needs no further definition.         
D would have acted ‘recklessly’ as to whether the statue was damaged if D was aware of a risk that damage would occur and it was, in the circumstances known to D, unreasonable to take the risk.  If D was unaware of a risk that damage would occur then D could not have been reckless.          

It is for the Prosecution to disprove that a Defendant had a “lawful excuse” for damaging someone else’s property.
In this case it is being argued that a D had one (or more) lawful excuses. 
You will have to examine the lawful excuses set out below and decide if the Prosecution has disproved them.
The use of reasonable force to prevent a crime.          
 
A person is to be treated as having a lawful excuse if:-
(1)  they used such force as was reasonable in the circumstances as they believed  them to be      
(2)  in the prevention of a crime.
(3) When they gave evidence you may consider that the Ds were saying they used force to prevent the following crimes:
the public display of indecent matter
the display of a visible representation which is abusive, within the sight of a person likely to be caused distress by it.
I will explain a little more about each of those three parts of this lawful excuse which is relied upon by the Defendants, but I will do so in reverse order: (3), (2) & then (1), because that will make it easier to understand.
May D have genuinely/honestly believed that a factual situation existed which amounts to a criminal offence (even if D’s belief was a mistaken one)?
There is a criminal offence of displaying indecent matter publicly.      
May D have genuinely/honestly believed Bristol City Council was displaying ‘indecent matter’ in public with this statue on the Centre?      
The definition of ‘indecent’ in the Oxford English Dictionary includes: “unbecoming; highly unsuitable or inappropriate; in extremely bad taste; unseemly; offending against the recognised standards of propriety and delicacy; highly indelicate…”
There is a criminal offence of displaying a visible representation which is abusive, within the sight of a person likely to be caused distress by it.      
May D have genuinely/honestly believed that Bristol City Council was committing that crime by displaying an abusive statue, where one or more people were likely to have been caused distress by it? 
The Defence argue that they genuinely/honestly believed that a factual situation existed which amounts to these criminal offences being committed by the Council.    
The Prosecution argues that no criminal offence was being committed at all by the display of this statue – it was neither ‘indecent’ nor ‘abusive’, and you can be sure that the Ds did not genuinely/honestly believe a factual situation existed which would have amounted to these crimes. 
If you decide that D may have genuinely/honestly believed that a factual situation existed which amounts to these criminal offences, you need to go on to examine the following. 

(2)  Were D’s actions carried out in order to prevent what they honestly/genuinely (even if mistakenly) believed to be a crime?      
The Defendants argue that that is what they were doing – their actions were done in order to prevent one or both of those crimes, which they honestly/genuinely believed to be happening.       
The Prosecution argues that they were not trying to achieve that, but instead were trying to force their own agenda because they were frustrated by the lack of progress in the debate about the statue. 
Did D use ‘reasonable’ force to prevent a crime, in the circumstances as they believed them to be?       
It is for you to decide what force was reasonable by your own standards.  It is not what D thinks was reasonable – it’s what you think was reasonable.    
However, the ‘circumstances’ in which force was used are the circumstances as D believed them to be.         
If D only did what they honestly and instinctively thought was necessary to prevent a crime, then that would be strong evidence that reasonable action was taken.         
In the case of the first 3 Defendants, did each of them honestly and instinctively think it was necessary to play a part in pulling down the statue to prevent a crime?     
In the case of the fourth Defendant, did he honestly and instinctively think it was necessary to help roll the statue all the way to Pero’s bridge to prevent a crime?               
The Prosecution says that even if you were to conclude Bristol City Council may have been committing one or both of the crimes now alleged (which is disputed), and even if you were to conclude the Defendants honestly (even if mistakenly) took the action they did to prevent one or more of those crimes,
it was unreasonable, in the circumstances as Ds believed them to be, to use force like this to prevent it, because there was a process through which concerns about the statue could have been dealt.
The Defendants argue that their actions were reasonable because any such processes had failed.
(ii)   Belief in the consent of the owners        
A person is to be treated as having a lawful excuse if he/she honestly believed,
at the time of the acts alleged to constitute the offence,            
that those who the person honestly believed were entitled to consent to the damage,            
would have consented to it,       
if they had known of the damage and its circumstances.          
(It does not matter if the person’s beliefs were justified or not, as long as they were honestly held.)             
Neither Milo Ponsford nor Sage Willoughby have presented evidence that could form the basis of an argument that they had this lawful excuse.    
Rhian Graham and Jake Skuse have given evidence to the effect that they had this lawful excuse for their actions, saying that on 7 June 2020 they honestly believed the statue was owned by the people of Bristol and honestly believed that, had the people of Bristol known of the damage and its circumstances, they would have consented to what was done.        
The Prosecution argues that there is no way that they could possibly have honestly believed that the people of Bristol would have consented to what they did because they didn’t take any steps to find out.             
If you consider that this lawful excuse applied, or may have applied, in the case of either of those two Defendants, then the Prosecution would have failed to disprove it and you will find that Defendant ‘not guilty’.
(iii)   The final lawful excuse you have to consider concerns all four defendants (and, again, the Prosecution has the burden of disproving it).  However, I am going to deal with it under a separate bold heading:-  
Would convicting D be a disproportionate interference with his/her rights?
Courts must read and give effect to legislation such as the Criminal Damage Act in a manner which is compatible with a number of rights which we all have.  
Two of those rights are:
the right to freedom of thought and conscience and to manifest one’s beliefs;
the right to freedom of expression, including to hold opinions and impart ideas.
These rights protect not only beliefs, such as anti-racism, and speech itself, but also actions associated with protest.  Even where those actions have more than a minimal impact on the rights of other people, they need not result in a conviction.  It is all a matter of fact and degree.  
Limitations on these rights are permitted under laws like the Criminal Damage Act if they are necessary in a democratic society in the interests of public safety or for the protection of the rights and freedoms of others.
It requires balancing the defendants’ rights to freedom of conscience and belief, to freedom of expression and to protest, as against the interests of public safety and the protection of the rights and freedoms of others, such as the property rights of the Council.
The Ds will argue that even if you reject all of their other arguments, if you were to convict them it would be a disproportionate interference with them exercising those rights.
You will therefore have to decide if the Prosecution made you sure that convicting them of criminal damage would be a proportionate interference with them exercising those rights.     
Even if you are sure that all the other elements of the crime of criminal damage are made out and that no other lawful excuse applies, you must go on to consider whether it is necessary in a democratic society, in the interests of public safety or for the protection of the rights of others, that the defendants should be convicted for their actions.    
Another way of looking at that question is to ask whether the interference in the defendants’ rights, which a conviction for the offence of criminal damage would cause, is proportionate in all the circumstances, including the individual actions of each D.
It is your task to make an assessment of where the balance lies, having regard to all the facts in the case.
In considering whether a conviction would be disproportionate for any D, the question for you is not whether you agree with their actions or their aims, nor is it about sympathy or whether you think they are likeable.  Everyone in the country has these rights and we each enjoy identical protection of those rights.  This means that people with whom we fundamentally disagree have exactly the same protection as those with whom we agree.
When examining the facts of this case and deciding whether you are sure it would be proportionate to convict a Defendant, you may wish to consider the following factors.  The list is not intended to be exhaustive and you are not obliged to consider any individual factor if you do not consider it to be helpful in reaching your verdict.  It is also up to you what weight to give the factors you consider helpful.
The extent of the interference with the rights of others, notably the rights of Bristol City Council and of other Bristolians on whose behalf they held this statue in trust.
Whether the Defendant believed in the views which motivated their actions.
Whether those views relate to very important issues.
The importance to the Defendant of the method of protest adopted.
Whether the actions of the Defendant was  directly aimed at the matter of which they disapproved.
Whether the Defendant’s actions presented a danger to public safety. 
‘No comment’ interviews
The words of the police ‘caution’ are: “You do not have to say anything.            
But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”
As it says, it is a suspect’s right not to answer police questions, but there is also a warning that there might be damaging consequences if they do not mention something when questioned which they later rely on in court. 
Two of the accused – Milo Ponsford and Jake Skuse, declined to answer any police questions.  
When the Prosecution asked Milo Ponsford and Jake Skuse why, they both told you they acted on the basis of advice from a Solicitor’s representative.  
They each acknowledged it was their own choice to decide whether or not to answer the police questions and face any consequences from a decision not to.  They do not accept that the real reason behind their decisions not to answer questions was because they had not yet had time to think up answers which might provide them with the basis of a defence that they might be able to rely upon if they were charged with criminal damage.
They have now given you detailed accounts from the witness box.  I will summarise their evidence in due course, but they were both asked: whether they had any lawful excuse for damaging it.  Both replied “no comment”.  They have now put forward accounts from the witness box, during the course of which they have said they did have lawful excuses for what they did.
Could they have reasonably been expected to set out what lawful excuses they now rely upon to the police when asked about the allegation in their interviews back in 2020?  Why didn’t they answer the questions with the answers they have now given to you in court? 
You must consider their explanations for that.  They have each told you the real reason was because they took the advice they were given by a legal adviser.  If you accept that may have been the real reason behind their decision to remain silent, then take this matter no further, don’t hold it against them.
However, if you are sure that the real reason for keeping silent was that that Defendant didn’t have an answer to those questions and was giving himself time to make-up answers later to support a defence to the allegation, then you are entitled to hold their silence at the police station against them and treat the things they have said from the witness box as having less weight. 
You should only reach that conclusion if the prosecution case was so strong as to call for an answer and you think it is fair and proper to do so.  You must not convict that defendant wholly, or mainly, on the basis of this point – it is just one of the factors which may feature in your assessment of all of the evidence in the case.
Sage Willoughby and Rhian Graham, on the other hand, answered many of the police questions and explained what motivated their actions.  Do not hold it against them that they did not answer some police questions, because those questions have no bearing upon your assessment of whether they are guilty or whether any of the others are guilty.
Expert evidence
In this case you have heard the evidence of Professor Olusoga, who has been called on behalf of Sage Willoughby.  Expert evidence is permitted in a criminal trial to provide you with information and opinion, within the witnesses expertise, which is likely to be outside your knowledge.  You should look at it in its proper perspective – it is just part of the evidence as a whole to which you may have regard on one particular aspect of the case, namely if you think it helps you assess the question of whether displaying a monument of Edward Colston may be indecent or abusive.  You are entitled to have regard to the historical information he has researched and interpreted when coming to your own conclusions.  Bear in mind, however, that if, having given the matter careful consideration, you do not accept any parts of his evidence, or do not think it helps you answer the questions you have to answer, then you do not have to act upon it.  It is for you to decide what evidence you consider relevant, what evidence you accept and what evidence you reject.
The relevance of the first three Defendants having no previous convictions
You should consider this in 2 different ways:
a)    It is relevant to your assessment of their credibility as witnesses.  Someone with previous criminal convictions might be considered less likely to be a truthful witness.  Because they have not got criminal records you should take that into account in considering whether they are therefore more likely to have been truthful to you.
b)    Would someone who has reached their ages without a criminal record have started offending now?  It is relevant to your assessment of them because it may support the argument that they are not the sort of people who have a tendency to be law breakers. 
These are not defences, because obviously no one would otherwise ever be convicted for a first time if they could rely on these two points as an answer to an allegation.  You must take them into account, but it is for you to decide how much weight you give them. 
Comments
The Prosecution and Defence barristers will make comments to you in their speeches, seeking to convince you of the strengths of elements in their cases and weaknesses in the other side’s case. 
If those comments and arguments help you then please take them into account in your own thinking about the evidence, but you have to decide this case on the basis of your assessment of the evidence and not on the basis of anyone else’s. 
It is possible that you may sense that I have a view about some parts of the evidence.  I do not intend to influence your views one way or the other and I don’t intend to do so in this summing-up. You alone are the judges of the facts.
Evidence
What I will do is to pick out what I think may be the most useful and relevant parts of my notes to remind you of the evidence.
Because you are the judges of the evidence, not me, take no notice of any things I remind you about which you think are irrelevant.
Equally, if you remember things which I do not mention, pay attention to what you recall.
Final practical points
Don’t suffer in silence – if you need to be reminded of any of the evidence that has been given (remembering there cannot be any further evidence presented to you), or you need me to explain some part of the law more clearly, just send me a note and I will do what I can to help. 
If some of you need the occasional break for a smoke then arrangements will be made for that.
Take all your papers with you when you go out to decide on your verdicts.  There is no time pressure on you.  If you are still discussing the evidence at around 4:30 and have not reached your verdicts I will have you back into court then and send you home overnight with some further legal directions.  We will then resume again the next morning.

We don`t know which of the available defences to the charge persuaded the jury to acquit.  To this layman the essence of this case is the extent to which a political opinion on the history of of slavery and the representation of that history by the damaged statue succeeded in the legal definitions as outlined by the judge and therefore overcame the barriers erected by the letters of the law. In this respect the spirit of our law that the guilty are punished and the innocent are acquitted has been to say the least somewhat compromised.  Taking that argument one logical step forward what other alleged criminal activity could be undertaken in similar fashion and yet the defendant be found not guilty if a historian is allowed to justify actions based upon events of three hundred years ago? It would appear that those defendants assumed a moral position on the righteousness of their cause of which  we mere mortals are oblivious.  Such fanatics have appeared infrequently justifying their law breaking by similar reasoning but that reasoning has with few exceptions been based on current contemporaneous events.  Delving into events 300 years in the past for their verdict the jury has demonstrated that a dangerous thinking process has infiltrated the very basis of our society. In another recent controversial case recently those who were charged with the blockage of major roads at the costs of £millions were exonerated by the Supreme Court by having a lawful excuse as defined by human rights laws  Ziegler ruling.  The law in this case has lost all meaning. Those who use public demonstrations of outrage are offered pseudo protection by a public in the form of a jury which is afraid of expressing opposition when legislation is expressly designed to draw the line between what is lawful and what is not. 

I would opine that the majority of legal opinion is in agreement with the outcome of this case.  There is almost a universal cry of civil liberty having been preserved against the tyranny of the state.  But the price is a perversion of the law.  The time will come when a right wing activist before the courts will seek to use a similar argument. Then we will see the folly of the liberal legal establishment`s embracing this verdict like it were manna from their liberal progressive heaven. 

For his/her view of these events the "Secret Barrister" published a lengthy opinion on Twitter which I have copied below.

1. What happened in this case?
On 7 June 2020, in the course of a Black Lives Matter protest in Bristol, a monument of 17th-century slave trader Edward Colston was pulled down and thrown into the harbourside. Consequently, four of those involved, Milo Ponsford, Sage Willoughby, Rhian Graham and Jake Skuse were charged with criminal damage.
On 5 January 2022, following a trial at Bristol Crown Court, all four were found not guilty by the jury.
 
2.   What is criminal damage?
Criminal damage is defined in the nattily-titled Criminal Damage Act 1971. Section 1(1) provides:
“A person who without lawful excuse destroys or damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”
In a criminal Crown Court trial, the prosecution has to prove the case, by making a jury sure of guilt (what used to be formulated as “beyond reasonable doubt”). A defendant does not have to prove their innocence. For a charge of criminal damage therefore, the prosecution has to prove the following:
The Defendant damaged property;
The property belonged to another;
The Defendant intended to damage the property or was reckless as to whether it would be damaged; and
The Defendant did not have a lawful excuse for damaging the property.
 
3. I thought I read that the defendants all admitted criminal damage?
The defendants all admitted their part in pulling down the statue. It was accepted that Ms Graham and Mr Ponsford had brought ropes to the scene, that Mr Willoughby had climbed the statue to pass ropes around its neck and that Mr Skuse had encouraged the crowd to roll the statue into the harbour and into the water. The prosecution case was that these four defendants were acting together and jointly with others, meaning that the prosecution didn’t have to prove that each defendant personally caused damage to the statue. It was enough if a defendant deliberately assisted or encouraged others to damage it, say by providing ropes to be attached to the statue.
But it is wrong to say – as has been widely misreported – that the Defendants admitted criminal damage. They did not. Looking at our checklist above, while there was no dispute that the statue belonged to another (Bristol City Council held the statue in trust on behalf of the people of Bristol), the other elements of the offence were challenged.
Three of the defendants argued that the Colston statue had in fact not been damaged, defined as “temporarily or permanently physically harmed”; that its value had increased as a result of it having been pulled down, salvaged and restored in a museum. It follows that they did not accept intending to damage the statue or being reckless as to whether it was damaged.
But the key issue, raised by all defendants, relates to that phrase “without lawful excuse”. Because the case for all defendants was that, even if damage had been caused, it was not unlawful. And this is where things get interesting.
 
4. What is a lawful excuse for damaging property?
Section 5 of the Criminal Damage Act 1971 provides examples of what might amount to a ‘lawful excuse’. But it is not exhaustive. There are also a number of cases from the High Court and Court of Appeal which clarify what might and might not amount to a lawful excuse. For instance, damaging property because you believe you are carrying out God’s will is not a lawful excuse. Nor is damaging a wheel clamp after you’ve parked your car in a private car park with a clear warning that your car will be clamped.
In this case, the following lawful excuses were raised, and the judge agreed that they should be left for the jury to decide:
 
i. Reasonable force was used to prevent a crime
It is well-established, both in our common law and in legislation (section 3(1) of the Criminal Law Act 1967, as you ask) that a person is entitled to use reasonable force to prevent the commission of a crime.
All defendants argued that the public display by the council of the Edward Colson statue was itself a crime, or potentially two crimes. First, it was said that displaying the statue amounted to an offence of displaying indecent material contrary to section 1 of the Indecent Displays (Control) Act 1981.
Second, it was said that there was an offence of displaying a visible representation which is abusive, within the sight of a person likely to be caused distress by it, contrary to section 5 of the Public Order Act 1986.
It was this element of the case that resulted in expert evidence being given by historian Professor David Olusoga, who detailed the history of Edward Colston, the role that the Royal African Company, of which Colston was CEO, played in enslaving and shipping African people, and of the violence and brutality inflicted by the RAC upon tens of thousands of enslaved people. It was argued by the defence that the public display of a memorial to Colston was therefore both indecent and abusive, such as to render it criminal under the two Acts cited above.
Now when considering this defence, there were three key questions for the jury:
Did the defendants honestly believe that a crime was being committed? (Note that the question is not whether a crime had been committed by displaying the statue, but whether the defendants honestly believed that a crime was being committed)
Were the defendants’ actions in order to prevent one or both of those crimes?
If so, did the defendants’ actions amount to the use of reasonable force, in the circumstances as the defendants perceived them to be?
The prosecution case was ‘no’ to each of these questions. And, as mentioned previously (and as I’ll repeat throughout), the prosecution has the burden of disproving this defence.
 
ii. Owners’ consent
 The second ‘lawful excuse’, which set out in section 5 of the Criminal Damage Act 1971, was raised by two of the defendants, who said that they honestly believed that the statue was owned by the people of Bristol, and that had the people of Bristol known of the circumstances, they would have consented to what was done.
The prosecution case was that the defendants had no such belief, and had taken no steps to consult the people of Bristol.
Again, the burden is on the prosecution to disprove the defence. If there’s any doubt, the defendants are entitled to the benefit. That is the cornerstone of our justice system.
 5. So if the jury were sure that damage was caused and that there was no lawful excuse, they had to convict the defendants, right?
 Not quite. If the jury rejected all of the other defence arguments, there was one final issue for the jury to decide. And, to put it in its simplest terms, it relates to the right to freedom of thought and conscience and the right to freedom of expression.
These rights, the courts have long held, protect not only beliefs – such as anti-racism – but actions associated with protest. Because the alleged damage was caused in the course of a protest, these rights – guaranteed to us all by the European Convention on Human Rights – were engaged in this trial. Now this does not provide a ‘trump card’ – you don’t have an automatic defence to a criminal offence simply because you were acting in according with your beliefs or exercising your right to protest. Limitations on those rights – such as laws preventing criminal damage – are permitted. But, as the Supreme Court recently confirmed, when considering whether a ‘lawful excuse’ exists for potentially criminal acts committed in the exercise of those rights, the courts are required to consider whether convicting the defendants would represent a proportionate interference with the exercising of those rights. In other words, is it necessary in a democratic society, in the interests of public safety or for the protection of the rights of others, that the defendants should be convicted for their actions?
Answering this question requires the jury to balance the rights of the statue owners not to suffer damage to their property with the rights of the defendants to act according to their beliefs. As the judge directed the jury, everybody in the country enjoys these rights. And the jury were expressly directed that the question is not whether the jury agreed with the defendants’ actions or aims. The same exercise would apply to any defendant, irrespective of how sympathetic (or otherwise) the jury found their cause.
Put even more simply, if the jury were satisfied that the prosecution had made them sure of guilt, they would also need to be sure that a criminal conviction for criminal damage would be proportionate.
In this exercise, the jury were directed to consider the follow (non-exhaustive) list of factors (drawing on the Supreme Court judgment):
The extent of the interference with the rights of others, notably the rights of Bristol City Council and of other Bristolians on whose behalf they held this statue in trust.
Whether the Defendant believed in the views which motivated their actions.
Whether those views relate to very important issues.
The importance to the Defendant of the method of protest adopted.
Whether the actions of the Defendant was directly aimed at the matter of which they disapproved.
Whether the Defendant’s actions presented a danger to public safety.
 
 6. So which defence did the jury accept?
 We don’t know, and will never know, because juries are not allowed to disclose details of their deliberations, or to give reasons for their verdicts. All the verdict tells us is that the jury were not sure that the prosecution had proved its case, or alternatively that the jury were sure the case had been proved, but were not sure that it would be proportionate to convict the defendants. And that formulation is key. The defendants did not have to prove that they were acting lawfully; the prosecution had to prove that they were not. That is not a glitch or a technicality: that is the foundation of how our system works.
 
7. Why are so many people so upset?
The trial has widely been appropriated as a proxy battle in the culture wars. Those who believe it was wrong to pull down Colston’s statue see the verdict as an affront. Their grievance has been inflamed by comments from politicians and media commentators which misunderstand or misrepresent what the case was about, and what the verdicts mean.

The last paragraph above in its own language is, in its meaning, not dissimilar from my own opinions as at the beginning of this post. The difference being that it is of a self publicising eminent  barrister interpreting  the law in all its letters. However the last sentence neatly sums up, as is a barrister`s wont, an opinion disguised as fact. This commenter has no grievance, has not been inflamed by others, and certainly does indeed understand what the verdicts mean. They mean that lawyers and the "progressive" establishment continue to consider that they are morally leading us away from darkness and into the light; that those who are not within this caravan of truth are devaluing the right of juries to bring in verdicts considered as perverse. Re read the preceding paragraph with some slight alterations. 

The trial  vaccination programme has widely been appropriated as a proxy battle in the culture wars. Those who believe it was wrong to pull down Colston’s statue to oppose vaccination see the verdict process as an affront. Their grievance has been inflamed by comments from politicians and media commentators which misunderstand or misrepresent what the case vaccination was about, and what the verdicts effects mean.

It is almost being suggested by the language used that  opposition to the verdicts is as heretical as eg antivaxers are to the control of Covid-19.  There is no doubt that the near future will see our laws being tested in like manner by those who are aware that although no precedents are created by this case a public is being programmed to support a cause and not those laws enacted for the well being of all our society and not particular sections with which they identify.  This in tandem with the Supreme Court`s decision on Extinction Rebellion is a warning to everyone who senses the rot which is seeping through the mores of our society. More such legal problems are yet to come. 




Tuesday, 18 January 2022

JURIES AND JURORS


Many dozens if not hundreds of PhDs have been granted and millions of words written on the subject of juries and all that surrounds that ancient concept of a suspected offender`s guilt  being determined by his/her peers.  The whole process once the 12 (15 in Scotland) good men (and women) and true have been escorted to the jury room has been shrouded in secrecy on pain of custodial sentence for those who transgress.  When juries were assembled from a restricted class within the population it could be argued that the variations in knowledge, awareness, education and even religion were minimal.  With the obstacles to jurors` requirements having today been reduced to a bare minimum the aforementioned variations have increased substantially. It is therefore not unrealistic for some jury members to have more knowledge than their fellows of evidence brought before the court.  As an aside when I was active I listened
 to a defendant explain, as part of his defence, supposed facts about his eye condition at a relevant time during the alleged offence. This went unrebutted by the CPS under cross examination. As an experienced eye care practitioner I knew immediately that he was lying. When considering our verdict  in the retiring room I informed my colleagues of my opinion on his eye condition argument. He was proved guilty.  

My argument then and now is that I contributed to justice being done.  The case for open investigation into how juries are functioning in the age of mass immigration and social media without restraint is needed now more than ever.  Indeed only last week a juror was given a suspended custodial sentence for investigating on the internet certain evidence presented in court. And of course as per my comprehensive post of a week ago on the Colston four who were acquitted of criminal damage, the current establishment view of juries that they and their workings are sacrosanct is as logic based as flat earthers` pre Copernican papacy driven articles of faith. 

I have no doubt that the refusal to investigate the happenings within jury rooms will be overturned if only to refute the arguments of a near future authoritarian regime which proposes to impose judge only trials.  And so this self styled Prometheus looks forward to enjoying lawyers` apoplectic reactions to today`s news that magistrates courts are to have powers to double their current maximum sentence of six months custody for certain limited offences.     

Tuesday, 19 April 2022

THE CHOICE IS BINARY


On 12th January I wrote at length on the trial of the Colston 4.  Thus I was pleased to note that the Attorney General whose decisions since taking office have not been above criticism has taken an interest in this case and referred it to the Court of Appeal.  From recent divergences of opinion on the law most notably Boris Johnson`s remarks on the exporting of illegal immigrants to Rwanda that he expects opposition in the courts as to the legality of his proposals a political divide between "woke" lawyers and the rest is becoming apparent.  It is also  apparent that the political divisions opened by the 2016 Referendum, itself an expedient act by David Cameron to hold together the Tory Party, have widened the gulf between our previously held opinions of what we call the Left and Right.  Differences in matters eg sexual orientation and gender have now become standards by which extremists view their world.........not ours but theirs because such individuals apply their self defined formulae to almost any activity or opinion.  Their world is an ugly one in which the choice is binary. You are for me or against me.  

Now I am leaving for a short holiday and so I hope to return here refreshed and wide awake but not woke in a couple of weeks or so.