Attorney General’s Reference on a Point of Law No 1 of 2022

Criminal damage during protest does not automatically make a fact-specific proportionality assessment necessary. Conduct which is violent or non-peaceful falls outside the protection of Articles 9, 10 and 11. Significant damage will ordinarily be treated in that way or, alternatively, conviction will be proportionate once the offence is proved.

Minor or temporary damage is different. At least where public property is concerned, the court may need to assess proportionality in the individual case. The ingredients of an offence can themselves strike the necessary Convention balance where Parliament has enacted a proportionate general measure. A Crown Court judge may withdraw proportionality from the jury where no reasonable jury properly directed could find that conviction would be disproportionate.

Four defendants were tried at Bristol Crown Court for criminal damage under the Criminal Damage Act 1971 after a statue of Edward Colston was toppled during a Black Lives Matter protest. The jury acquitted them on 5 January 2022. One defence was that conviction would disproportionately interfere with Convention rights to protest.

The Attorney General referred three questions under section 36 of the Criminal Justice Act 1972. The questions concerned whether criminal damage is automatically proportionate once its ingredients are proved, how Articles 9, 10 and 11 apply to protest-related damage, and when proportionality should be withdrawn from the jury.

1. Jurisdiction. The reference procedure concerned points of law arising in a real case, not abstract questions. The Attorney General was entitled to advance a different or developed argument on a point that had been in issue at trial.
2. General measures and proportionality. A criminal offence may contain ingredients whose proof itself establishes that conviction is a proportionate interference with engaged Convention rights. A fact-sensitive assessment is required only where the rights are engaged and the ingredients do not themselves strike the appropriate balance, unless the statutory language prevents that approach. The court applied the two-category analysis in James v Director of Public Prosecutions [2016] 1 WLR 2118 and adhered to the conclusion in DPP v Cuciurean [2022] EWHC 736 (Admin) that DPP v Ziegler [2022] AC 408 established no universal rule requiring proportionality to be proved for every offence arising from non-violent protest.
3. Peaceful protest and damage. Violent or non-peaceful conduct is outside Convention protection. Sporadic violence by other protesters does not deprive an individual who remains peaceful of protection. Property damage may amount to violence, but minor damage is not necessarily violent or non-peaceful. Significant damage to property will ordinarily be outside protection or, even if theoretically peaceful, will make prosecution and conviction proportionate. Minor or transient damage may require an individual assessment, especially where public property is concerned.
4. Role of the jury. A judge cannot direct a jury to convict, but may withdraw an issue where no reasonable jury properly directed could reach the relevant conclusion. In Crown Court cases involving significant damage, the proportionality issue should not be left to the jury where the conduct was violent or non-peaceful, or where conviction would plainly be proportionate.
5. Application. Toppling the heavy bronze statue required ropes and substantial force. The conduct was violent and non-peaceful, and the damage was significant. The proportionality of conviction therefore could not arise for consideration by the jury. The reference did not determine whether the defendants were guilty and had no effect on their acquittals.

1. Court of Appeal (Criminal Division) considered the Attorney General’s reference under section 36 of the Criminal Justice Act 1972 and answered all three questions.
2. Bristol Crown Court tried four defendants for criminal damage arising from the toppling and removal of the statue. The jury acquitted all four on 5 January 2022.