Can a Jury Ignore the Law? Perverse Verdicts in Protest Cases
February 24, 2022
Hannah Forsyth
On 5th January 2022, 12 jurors returned a verdict of Not Guilty for a charge of criminal damage against Milo Ponsford, Rhian Graham, Sage Willoughby and Jake Skuse. Verdicts on criminal damage charges are routinely delivered in courtrooms across the country, but few attract the same level of interest from politicians, lawyers and newspapers as this one did.
The four defendants were part of a group who, on 7th June 2020, pulled down the statue of Edward Colston from his plinth in the middle of Bristol City Centre, and then threw it into the nearby harbour. This incident, variously described as righteous protest and wanton vandalism, took place against a backdrop of protests against racism and police violence during the summer of 2020, following the murder of George Floyd in America. Colston’s statue had been subject of protest and controversy within Bristol for some time, due to Colston’s history as a prolific slave trader during the late 1600s. The removal of the statue was recorded and widely shared on the internet, and from that footage the defendants were identified and charged with criminal damage contrary to section 1 of the Criminal Damage Act 1970.
The facts of this case were rather unusual for a charge of criminal damage. The four defendants (subsequently named “the Colston Four”) all admitted to taking an active part in removing Colston’s statue and disposing of it in Bristol Harbour, as the prosecution had alleged. Their defence to the charge lay in why the statue had been removed. The various defence teams advanced several novel lines of legal argument during the trial, including the following:
- Criminal damage is lawful if the defendant believes the owner of the property consents to the damage (as found in section 2 of the Criminal Damage Act 1970). The alleged owner in this case would have been the people of Bristol, and it was argued by the defence that the people of Bristol would have consented to the damage caused.
- Citizens are entitled to use reasonable force to prevent the commission of an offence – in this case, public indecency contrary to section 5 of the Public Order Act 1986. It was suggested by several of the defence teams that the statue itself was like to cause “harassment, alarm or distress” to people in a public place, and removing it was necessary to prevent Bristol City Council (as the owners of the statute) from committing a crime.
- The recent Supreme Court judgment in DPP v. Ziegler [2021] UKSC 23 provided a possible defence under Articles 10 and 11 of the European Convention of Human Rights (ECHR). Protestors may be able to argue that criminal convictions are a disproportionate interference with their right to assemble and protest – in this case, it was submitted that the removal of the statue constituted “protest”.
The full summing up can be found (as reported by barrister legal commentator Matthew Scott) here.
At the outset of all trials, juries promise to “faithfully try the defendant and give a true verdict according to the evidence”. Once a verdict has been reached, the jury are not required or indeed permitted to give a reason in court for how that verdict was reached. It is impossible for anyone else to know for sure whether a defendant was acquitted because the prosecution case failed to convince them to the required standard, or because they knew that the defendant was guilty but simply declined to convict.
It is possible that in this case, the jury were satisfied by one of the defences put forward by the Colston Four. It is also possible that, although they found that the necessary elements of the offence were proven, the jury declined to convict. This is often termed a Perverse Verdict.
History of Perverse Verdicts
There have been records of perverse verdicts for centuries, often occurring when the matter being tried was a controversial issue of the period. For example:
- In 1982, Clive Ponting was acquitted of breaching the Official Secrets Act despite admitting to leaking documents relating to the sinking of the Belgrano during the Falklands War. The judge directed the jury that Ponting’s duty lay to the civil service and that he had no viable defence.
- In 2000, anti-nuclear protestors were cleared of conspiring to damage nuclear submarines after breaking into a dockyard at Barrow-in-Furness with an axe. They argued that nuclear weapons were immoral and illegal under international law.
- In 2007, Toby Olditch and Philip Pritchard were acquitted of sabotaging US bombers at the outset of the Iraq war. The defendants suggested that the bombers would have been used to commit war crimes.
- In 2021, Extinction Rebellion protestors were acquitted of damaging oil company Shell’s headquarters in London, despite the judge’s direction to the jury that the defendants had no defence in law and had caused extensive damage.
- In America, jury “nullification” (the American term for a perverse verdict) was often employed during the Prohibition era as juries declined to convict defendants of offences relating to alcohol control. This has been mirrored more recently in laws relating to cannabis possession and supply as the legalization debate continues.
In the present case, the issue at the forefront of the defence case was Bristol’s legacy as a city that prospered from the slave trade, as well as the ongoing racial discrimination that sparked protests in the summer of 2020. The defence called expert evidence from Professor David Olusoga, who provided context on the Colston statue and its ongoing effect on Bristol’s Black community.
What Next for the Colston Four?
There are very few avenues for the prosecution to appeal an acquittal. An application can be made in serious cases when new evidence has come to light which is “compelling” in the context of the case (under Part 10 of the Criminal Justice Act 2003). This is not possible in the case of the Colston Four as the offence is not considered serious enough. An acquittal can also be quashed if it is “tainted”. This would apply if someone (not necessarily the defendant) has been convicted of interfering with a juror or witness, and there is a real possibility that but for this interference, the related defendant would not have been acquitted. Neither argument has been raised by the prosecution here.
The most likely option for the prosecution to take in this case is to make an Attorney General’s reference to the Court of Appeal under section 36(1) of the Criminal Justice Act 1972. This does not affect the outcome of the case that the reference relates to, but allows the Court of Appeal to clarify what the law is around a particular issue. In this case, the prosecution may wish to clarify whether the defences included in the summing up should have been allowed to go before the jury. In the light of Ziegler and other high profile protest cases, the government may also want to know the legal position on prosecuting protestors and if (in their view) further legislation is needed.
What Next for Jury Trials?
The position of juries in England and Wales has been subject to some discussion over the last few years. The current government have explored the option of removing the option of electing a jury trial for some less serious offences, which would otherwise be triable “either way” (with a jury or in the Magistrates’ Court). The time, expense and unpredictability of jury verdicts could make them an easy target to an administration looking to save public expense.
The verdict in the Colston case has attracted considerable criticism from Conservative MPs, many of whom felt that it posed a threat to law and order. Former Justice Secretary Robert Buckland QC advised that the case should be referred to give a ruling for other “highly politically charged” cases in the future. As the Police, Crime, Sentencing and Courts bill continues to make a rather contentious path through Parliament, it is possible it will be amended to include more serious punishments for defacing or damaging memorials, or to prevent the defences applied in this case from being run in the future.
In the long term, any attempt to abolish juries wholesale or reduce their reach is likely to meet with stringent opposition, not least from the government’s own party members. Jacob Rees Mogg, Leader of the House of Commons, described the system as “the great sublime protector of our liberties”. The Colston Four’s case may be an encouragement to people wishing to exercise their right to protest over a variety of issues, but it is unlikely to sound the death knell of the jury system.
