Sept 28
Four protesters including the defendant caused over £5,000 worth of damage to a large bronze statue which involved climbing it, attaching ropes to it, using force to pull it to the ground and rolling it into the harbour. They were charged with allegations of criminal damage to a bronze statue contrary to section 1(1) of the Criminal Damage Act 1971 and committed to the Crown Court for trial. The defendant applied to stay the proceedings as an abuse of process on the grounds, inter alia, that the prosecution involved a disproportionate interference with her rights under articles 9, 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Crown submitted that the conduct was not peaceful and not protected by the Convention. The judge rejected the application and did not rule on the Crown’s submission but accepted that if there was an interference with Convention rights, the jury could consider proportionality. At trial, the protesters ran a range of defences and the defendant’s defence was left to the jury on that basis, the requirement for the conviction to be proportionate being treated as an additional separate ingredient of the offence which the Crown had to prove or, on a strict analysis, the Convention did not provide a “lawful excuse” within the terms of the 1971 Act. The jury acquitted the protesters.
The Attorney General referred to the Court of Appeal under section 36 of the Criminal Justice Act 1972 the points of law whether (1) conviction for the offence of criminal damage was intrinsically and without the need for a separate consideration of proportionality in individual cases a justified and proportionate interference with any rights engaged under articles 9, 10 and 11 of the Convention; (2) if not and it was necessary to consider human rights issues in individual cases of criminal damage, what principles should judges in the Crown Court apply when determining whether the qualified rights found in articles 9, 10 and 11 of the Convention were engaged by the potential conviction of defendants purporting to be carrying out an act of protest; and (3) if those rights were engaged, under what circumstances should any question of proportionality be withdrawn from a jury.
A preliminary issue arose as to whether the court had jurisdiction to give its opinion on any of the questions on the ground that none of them arose in the case in the Crown Court, the Crown not having advanced at trial any of the points of law upon which the Attorney General sought to rely.
On the reference—
Held, (1) the court had jurisdiction under section 36(1) of the Criminal Justice Act 1972 to deal with the three questions raised in the reference. The proposition that the conduct in question attracted no protection under the Convention for the Protection of Human Rights and Fundamental Freedoms was at the heart of the case as originally advanced by the Crown, upon which the judge did not rule. All three questions raised issues of law which sought the court’s opinion as to whether that underlying assumption was correct and, if it was not, how the matter should be dealt with. There was no principle preventing the Attorney General from advancing an argument different from that advanced by the Crown at trial in relation to a point of law in issue. The Crown’s contention that since the protest was non-peaceful and fell outside the scope of Convention rights the defence of “lawful excuse” did not arise, was at the heart of the Attorney General’s submission and the questions of law the court was asked to consider (paras 18–21).
(2) Answering the first question posed by the reference in the affirmative, the prosecution and conviction for causing significant damage to property during protest would fall outside the protection of the Convention, either because the conduct in question was violent or not peaceful or, alternatively, even if theoretically peaceful, prosecution and conviction would be proportionate. The offence of criminal damage did not automatically fall within the category of offences whereby proof of the relevant ingredients of the offence was sufficient to justify any conviction as a proportionate interference with any rights engaged under articles 9, 10 and 11 of the Convention without the need for a fact-specific proportionality assessment in individual cases, but the circumstances in which such an assessment would be needed were very limited (paras 115, 116).
(3) Answering the second and third questions together, since the Convention neither provided protection to those who caused criminal damage during non-violent or peaceful protest, nor when the damage was inflicted violently or not peacefully, articles 9, 10 and 11 were not engaged and no question of proportionality arose. Moreover, prosecution and conviction for causing significant damage to property, even if inflicted in a way which was peaceful, could not be disproportionate in Convention terms. Given the nature of the cases that were heard in the Crown Court, it was inevitable that for one or both of those reasons, the issue should not be left to the jury, because the conduct was not peaceful or the damage was significant, or both. It was essential that prosecutorial discretion as to whether to proceed to trial should be exercised carefully, applying the Code for Crown Prosecutors in the context of the principles governing articles 9, 10 and 11 with a clear eye on the proportionality of prosecution and conviction (paras 120–121).
Tom Little KC and Victoria Ailes (instructed by Treasury Solicitor) for the Attorney General.
Clare Montgomery KC and Blinne Ní Ghrálaigh (assigned by the Registrar of Criminal Appeals) for the defendant.
Louis Mably KC (instructed by Treasury Solicitor) as advocate to the court.
Jude Bunting KC and Owen Greenhall (instructed by Solicitor, Liberty) for the intervener, Liberty, by written submissions only.