The acquittal of the defendants in the Colston trial struck a chord. Armchair judges and jurors alternate between praise and condemnation. The New Statesman’s Tom Lamont, in his fascinating long read, called it a case of “four white citizens who intervened to correct… racial anesthesia.” I do not agree with that. But I agree with his conclusion: that the jury verdict is sacred. Lord Sampton, the former Supreme Court justification, took a different view: “By acquitting them of their iniquity, they have dishonored their oath.” Although I have great respect for Lord Sumption, I strongly disagree. Jury litigation is a fundamental pillar of our judiciary, and jury service is a vital public service. The verdict of a juror cannot be distinguished. But we should ask if the jury was right about the applicable law. Were questions asked that they should not be allowed to answer? Lord Sumption may well have assumed, quite understandably, that there were no problems with the instructions given and that the law in question was clear.
The judges must have the right questions
It is extremely important to ask the right questions to jurors and to make clear the law that judges and jurors follow. We all need to know what is and what is not against the law. Where there is any doubt about the correct interpretation of the law, this must be resolved either by senior judges or by Parliament. That is why, in January, I said that I was thinking of referring legal issues to the Colston case for clarification by the Court of Appeal. The Criminal Justice Act of 1972 authorizes me to refer to legal matters without affecting the verdict. Since 2000, attorneys general of both major political parties have made 19 reports. The referral decision is a function of public interest, ie it is taken purely for legal reasons. This is not the broader context surrounding the Colston statue, contrary to some of the overly heated comments at the time. I looked at the matter in detail and concluded that the Colston trial raised legal questions that should be called upon to be clarified by senior judges. There is considerable uncertainty about the relationship between criminal harm and protest rights. The judge instructed the jurors that, before convicting, they must be certain that such a move would constitute a corresponding interference with the exercise of human rights by the accused in freedom of thought and freedom of expression.
Seeking a solid answer in the public interest
There has been a lively debate among reputable criminal lawyers as to whether this was right. Given the uncertainty of the law, this puts the jury in a difficult position. It is in the public interest to seek a firm answer. The judge’s approach was updated by a 2021 Supreme Court ruling, DPP v. Ziegler. Protesters who blocked one side of a double road were accused of deliberately blocking a highway. There, the Supreme Court ruled that the conviction would be a disproportionate interference with the human rights of the protesters. In my view, Ziegler was misinterpreted by the judge and erroneously extended to create a general requirement in all protest cases to consider whether a conviction would be a corresponding interference with human rights. In recent weeks, in the DPP v. Cuciurean case, the Lord of Justice has rightly said that it is “impossible” to consider Ziegler as establishing such a general principle. He considered that there is a category of offenses where the conviction is inherently proportionate, because the offense involves “conduct… in addition to what could be considered reasonable conduct in the exercise of the rights of the Convention”. In less technical language, this means that in such cases, there is no need for judges or jurors to conduct a “proportionality balance”, as was done in Ziegler. The fact that Parliament has decided to ratify certain behaviors is enough to prove that the punishment is compatible with the right to protest. Cuciurean leaves open the question of which category the “criminal damage” belongs to. The right to protest should be guarded with jealousy, but it should not be a license to commit criminal harm. Human rights should not be used to legitimize criminal behavior. Police and protesters, judges and jurors – everyone must understand where the threshold is between protected rights and crime. It is in the public interest to clarify the law, which is why I am making this reference to the Court of Appeal.
