Introduction

The Attorney General's Reference on a Point of Law No. 1 of 2022 addresses pivotal questions concerning the intersection of criminal damage law and human rights in the context of protest activities. The case revolves around the prosecution of four protestors charged with criminal damage to a statue of Edward Colston in Bristol. Central to the case is the examination of whether such convictions inherently interfere with the defendants' rights under Articles 9, 10, and 11 of the European Convention on Human Rights (ECHR), and to what extent proportionality must be assessed in individual cases.

Key issues include the applicability of the Criminal Damage Act 1971, the role of the ECHR in shaping lawful defenses, and the boundaries of protest activity in relation to property damage. The parties involved encompass His Majesty's Attorney General, who seeks the court's opinion, and the four defendants acquitted of the charges in Bristol Crown Court.

Summary of the Judgment

The England and Wales Court of Appeal (Criminal Division) delivered a comprehensive judgment on September 28, 2022. The court addressed three primary questions referred by the Attorney General concerning whether prosecutions for criminal damage during protests automatically constitute disproportionate interference with Convention rights without the need for a case-specific proportionality assessment.

The Court concluded that:

• The offense of criminal damage under section 1(1) of the Criminal Damage Act 1971 does not inherently fall within the category of offenses where convictions are automatically proportionate interferences with ECHR rights.
• A fact-specific proportionality assessment is generally required, especially in cases involving significant or non-peaceful damage to property during protests.
• Convictions for causing significant or non-peaceful damage to property are proportionate and fall outside the protection of the Convention.
• Evidence from Strasbourg case law reinforces that criminal convictions in such contexts are justified and do not infringe upon Convention rights.

Conclusively, the court held that the conduct leading to the criminal damage in this case was both violent and caused significant damage, thereby justifying prosecution and conviction without necessitating a further proportionality assessment by the jury.

Analysis

Precedents Cited

The judgment extensively references both UK and European precedents to frame its analysis:

• James v DPP [2016] and DPP v Cuciurean [2022]: These cases distinguish between offenses where the statutory ingredients alone suffice for proportionate convictions and those requiring case-specific assessments.
• DPP v. Ziegler [2022]: Clarifies that not all criminal offenses arising from protests necessitate proportionality assessments.
• Pivincek v. Switzerland (2016) and Handzhiyski v. Bulgaria (2021): European Court of Human Rights (ECtHR) cases that delve into the balance between freedom of expression and protection of property.
• Bauer v DPP (2013) and Morphitis v. Salmon [1990]: UK precedents that reinforce the breadth of the criminal damage offense.

These precedents collectively underline the necessity of evaluating the nature of the offense, the context of the protest, and the extent of property damage to determine proportionality.

Legal Reasoning

The court's legal reasoning hinged on several core principles:

• Definition and Scope of Criminal Damage: Under section 1(1) of the Criminal Damage Act 1971, criminal damage encompasses both minor and significant property damage, whether permanent or temporary.
• Convention Rights Engagement: The court assessed whether the actions of the defendants, even if minor, engaged rights under Articles 9, 10, and 11 of the ECHR, which cover freedoms of thought, expression, and assembly.
• Proportionality Assessment: The Court determined that for significant or non-peaceful property damage, proportionality is inherently satisfied, negating the need for a separate assessment.
• Strasbourg Jurisprudence: Drawing on ECtHR rulings, the court emphasized that criminal prosecutions should not be insulated from human rights scrutiny, especially when they potentially infringe upon fundamental freedoms.

In applying these principles, the Court concluded that the defendants' actions were violent and caused significant damage, thereby justifying prosecution without additional proportionality evaluation.

Impact

This judgment has profound implications for future prosecutions involving criminal damage during protests:

• Clarification of Proportionality: Establishes that not all criminal damage offenses require a separate proportionality assessment, particularly when the damage is significant or carried out violently.
• Guidelines for Prosecutions: Reinforces prosecutorial discretion in determining when to charge individuals, emphasizing the need to consider the nature and extent of damage.
• Human Rights Compliance: Affirms that prosecutions must align with ECHR standards, ensuring that fundamental freedoms are not unduly restricted without just cause.
• Jury Considerations: Provides clearer directives on when juries should or should not consider proportionality, streamlining trial processes in property damage cases.

Overall, the judgment reinforces the balance between upholding public order and respecting fundamental human rights during protest activities.

Complex Concepts Simplified

Proportionality in Legal Context

Proportionality refers to the principle that the means used to achieve a law's objective must be suitable, necessary, and balanced against the rights or interests affected. In this case, it assesses whether prosecuting individuals for property damage during protest is a reasonable and justifiable response given their rights to free expression and assembly.

European Convention on Human Rights Articles 9, 10, and 11

• Article 9: Protects freedom of thought, conscience, and religion.
• Article 10: Safeguards freedom of expression, including the right to hold opinions and impart information.
• Article 11: Ensures the right to peaceful assembly and association.

These articles collectively provide a framework for understanding the rights of individuals during protests and the limitations that may be imposed to protect broader societal interests.

Lawful Excuse Defense

A lawful excuse is a defense under the Criminal Damage Act 1971 that justifies the defendant's actions, negating the intention or recklessness required for a conviction. For instance, if the damage was done to prevent a greater crime or was with the consent of the property owner.

Aggravated Trespass

Aggravated trespass involves a deliberate interference with lawful activities on land or property, often accompanying protests. The case distinguishes it from simple trespass by focusing on the intent and potential for public disorder.

Conclusion

The Attorney General's Reference No. 1 of 2022 serves as a critical touchstone in the realm of criminal law and human rights during protest activities. By elucidating the conditions under which criminal convictions for property damage are proportionate, the Court of Appeal underscores the necessity of balancing public order with fundamental freedoms.

Key takeaways include:

• Non-Automatic Proportionality: Criminal damage prosecutions do not automatically qualify as proportionate interferences with ECHR rights; context and severity matter.
• Violence and Significant Damage: Acts that are violent or cause substantial damage are outside the protective scope of Articles 9, 10, and 11, justifying prosecution.
• Case-Specific Assessments: While general principles apply, individual case details remain paramount in determining the appropriateness of convictions.
• Alignment with Strasbourg Jurisprudence: The judgment aligns UK law with ECtHR standards, ensuring consistency in human rights protection.

Ultimately, this judgment reinforces the rule of law's role in managing protest activities, ensuring that while the right to protest is upheld, it does not infringe upon the rights and properties of others in an unjustified manner.