Richard Harwood QC examines the relationship between listed building legislation and the decision to acquit the 'Colston 4'.
The acquittal of four protesters involved in pulling a bronze statue of Edward Colston off its plinth and throwing it in Bristol harbour has attracted a great deal of comment. Informed comment on the reasons for the decision and their legal standing is a little more difficult. The defendants were acquitted by a jury and juries do not give reasons. Any rulings by the judge on the defences which were raised are not available as published transcripts.
Some of the defences raised have been reported online and I am indebted to a piece by The Secret Barrister and Doughty Street Chambers’ news article for their explanations. The legal directions in the judge’s summing up have since been released. I want to look at the relationship between the listed building legislation and the decision. The legal directions to the jury do not refer to the listed building, but it is not apparent whether that status was addressed in any other rulings.
The statue of Edward Colston and the Portland stone pedestal on which it stood is listed as a building of special architectural or historic interest under the Planning (Listed Buildings and Conservation Areas) Act 1990. By section 7 of that Act:
“Subject to the following provisions of this Act, no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised under section 8.”
A section 8 consent is a listed building consent. Subject to a potential defence, a breach of section 7 is an offence under section 9. Pulling the statue off the pedestal, throwing it in the harbour and causing physical damage in the process would have affected its special interest. Whilst inelegant, these would have been ‘works’. The protesters were not charged under the Listed Buildings Act, but instead under the Criminal Damage Act 1971. In one sense that was not surprising. The offence of criminal damage is usually used where another person’s property is damaged. Listed building offences tend to be raised against the owner of the listed building who has carried out or authorised the works.
The offence charged was section 1(1) of the Criminal Damage Act:
“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”
The legal issues raised were whether the defendants had a lawful excuse. As allowed by the judge to go before the jury for their decision as to whether they were made out, the claimed lawful excuses were (drawing from The Secret Barrister’s account):
(i) that reasonable force was being used in the prevention of crime, see the Criminal Law Act 1967, s 3 ‘A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large’. This was said to be on the basis that:
(a) the statue was a display of ‘writing, sign or other visible representation which is threatening or abusive’, contrary to the Public Order Act 1985, s 5(1)
(b) it was ‘indecent matter [that] is publicly displayed’, contrary to the Indecent Displays (Control) Act 1981, s 1.
(ii) the pulling down was within one identified category of ‘lawful excuse’ under section 5 of the Criminal Damage Act:
“if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances”
(iii) that conviction would be a disproportionate interference in the defendants’ rights of thought, expression and protest under the European Convention on Human Rights, articles 9, 10 and 11.
That the statue was (and is) a listed building has a bearing on all of these issues. Subject to any argument that the works did not affect the special interest of the building, the works required listed building consent which had not been granted. There is no general exception or defence of ‘lawful excuse’ to a prosecution under section 9 of the Listed Buildings Act. The available defence, which defendants must prove, is in s 9(3):
(a) that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building;
(b) that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter;
(c) that the works carried out were limited to the minimum measures immediately necessary; and
(d) that notice in writing justifying in detail the carrying out of the works was given to the local planning authority as soon as reasonably practicable.”
That is usually for works to stabilise or reduce a building which is in a dangerous condition, but might cover situations where the emergency services need to force their way into a building. It would not cover the pulling down of the Colston statue. The most imaginative argument would be that safety or health was affected by its presence, but a crowd tearing it down was not likely to help public order. On the basis therefore that the removal was an offence under the Listed Building Act and there was no available defence under section 9, where should that have left the criminal damage prosecution?
It is hard to see how there could be a lawful excuse for causing damage if the act was unlawful under different provisions. The excuse would not be ‘lawful’ if what was done was in any event unlawful under other legislation. That raises though the question whether the use of reasonable force in the prevention of crime is an exception to the listed building offence. Since works for the purpose of health or safety are permissible under the Listed Buildings Act, it is difficult to see how crime prevention can justify material damage to a listed building when persons are not at risk and so why that should override listed building control.
The other aspect of the offences allegedly being prevented is that the statue was listed. It is possible for there to be a ‘visual representation’ which is threatening and abusive: demonstrators holding up anti-semitic caricatures or an effigy hanging from a noose. Those examples are though very different from a Nineteenth Century statute showing a man ‘in middle age, dressed in C17 costume and leaning pensively on a stick’, to quote the list description. Essentially the complaint had to be that it was threatening or abusive to see an image of a long dead person being commemorated, and to that degree celebrated, in public because of some of their activities when alive. It would also be something of a stretch to describe a statue of a fully (and conventionally) dressed figure as indecent, not least when public nude statues are, and always have been, commonplace. The European Convention on Human Rights does then kick in, but in favour of the Colston statue: the right to freedom of expression under Article 10 very strongly militates against any suggestion that it is a criminal offence to publicly display an image of Colston.
Does the listing then have a bearing on whether displaying the statue could be a criminal offence? That something is of historic or architectural interest, including artistic interest, does not necessarily mean that its display is not criminal, although it is a pretty strong pointer against it being an offence. The listing explains why the statue is of special architectural or historic interest:
“A handsome statue, erected in the late C19 to commemorate a late C17 figure; the resulting contrast of styles is handled with confidence
The statue is of particular historical interest, the subject being Edward Colston, Bristol's most famous philanthropist, now also noted for his involvement in the slave trade.
Group value with other Bristol memorials: a statue of Edmund Burke, the Cenotaph, and a drinking fountain commemorating the Industrial and Fine Art Exhibition of 1893”
It is therefore of special interest for its artistic qualities, the interest in Colston – including slaving, and group value in that location. That is again a strong indicator (at the very least) that the effect of the work is not threatening, abusive or indecent. The value of the statue and the harm by its removal was recently reaffirmed by a Planning Inspector considering and rejecting an application for a temporary replacement, of Jen Reid, on the Colston pedestal.
The listing prevented the council from removing the statue without listed building consent. So if its display was a criminal offence then it was one that the council were being forced to commit. That raises the issue of whether the protesters’ defences necessarily involved a contention that the listing decision was unlawful. The validity of a listing can be challenged in a defence to proceedings under the Listed Building Act, see Dill v Secretary of State for Communities and Local Government, but it is not apparent whether it was in this case.
In respect of the second line of defence the case appears to have proceeded on the basis that the statue was held by Bristol City Council on trust for the people of Bristol. Two of the defendants said that they believed that the people of Bristol would have consented to what was done, at the time it was done. However without listed building consent the removal of the statue would have been an offence anyway, and neither the council nor the people of Bristol (however their views were ascertained) could be taken to have consented to a criminal offence being committed, and so committed a criminal offence themselves.
The relationship between planning controls and the human right to freedom of expression was considered in the advertising case of Butler v Derby City Council. Article 10 rights were not sufficient to allow the display of a banner protesting against a proposed development without first obtaining advertising consent. But as mentioned above, human rights point in favour of allowing representations and art to be publicly displayed and allowing demonstrations against them, rather than allowing individuals to impose their will by force.
The issues above all go to the question whether there could on the facts have been any legal basis for acquitting the defendants. Juries are not so bound. Whilst the judicial oath includes ‘I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will’, jurors do not swear to follow the law. They swear to ‘give a true verdict according to the evidence’. Juries can, and very occasionally, do acquit someone because they think that they should not have been prosecuted. In a case relating to a matter of political controversy, that is a political judgment, and so justifies the political debate which has ensued about the verdict.
Richard Harwood QC is a barrister at 39 Essex Chambers. He is a co-author, with David Sawtell and Catherine Dobson, of A Practical Legal Guide to the Removal of Art and Cultural Property from Historic Buildings which is to be published this Spring by Law Brief Publishing.