Government accused of ‘subverting rule of law’ with Colston statue case appeal move

Attorney general’s intervention ‘Trumpian’ and ‘disgraceful’, say lawyers and campaigners

Adam Forrest,Nadine White
Friday 07 January 2022 20:15
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Edward Colston statue: Four cleared of criminal damage over toppling monument

Boris Johnson’s government has been of trying to “subvert” the justice system after the attorney general announced she could refer the Colston statue case to the Court of Appeal.

Lawyers, campaigners and opposition parties condemned Suella Braverman after she claimed the jury verdict – which cleared four protesters of criminal damage after they toppled a monument of slave trader Edward Colston – had “caused confusion”.

Speaking to The Independent, Peter Herbert, retired judge and chair of the Society of Black Lawyers, described the attorney general’s intervention as “a disgrace”.

The senior figure added: “The Court of Appeal has no role to play in this acquittal … Her involvement smacks of institutional racism, demonstrating the need to defend the narrative of slavery and oppression, the direct link to colonialism, and therefore to present day injustices.”

Labour accused Ms Braverman of “playing politics” with the jury system, after Ms Braverman said she was “carefully considering” whether to refer the outcome to senior judges to give them a chance to clarify the law.

“The attorney general has a duty to uphold democracy, the rule of law and the sanctity of the jury system – not play political games when she doesn’t like the results,” said Emily Thornberry, the shadow attorney general.

The barrister defending one of the so-called “Colston Four” in Bristol told The Independent the attorney general’s move amounted to “Trumpian” behaviour.

Barrister Raj Chada, who represented 33-year-old protester Jake Skuse, said: “[Ms Braverman] is undermining public confidence in the criminal justice system by undermining the role of juries. It’s Trumpian politics – you don’t like a decision then you seek to undermine it any way you can.”

Nazir Afzal, former chief crown prosecutor for the northwest of England, also condemned the government’s decision to interfere in the case.

The senior solicitor told The Independent: “If the attorney general would like, I can refer several thousands of jury acquittals to her to consider. The case ends here, and to suggest otherwise is damaging to public confidence in the justice system.”

If the Colston case is referred to Court of Appeal, the senior judges will not be able to overturn the jury’s verdict, but they could potentially point out an error in law in directions that were given to the jury in the case.

The acquittal of the four activists – who claimed the presence of the statue was a hate crime and was therefore not an offence to remove it – has sparked an angry backlash among Tory MPs who warned it would allow “mob rule” and encourage the pulling down of more statues.

In a statement posted to Twitter on Friday, Ms Braverman said the jury’s decision was “causing confusion” and she was able to “refer matters to the Court of Appeal so that senior judges have the opportunity to clarify the law for future cases. I am carefully considering whether to do so.”

But the defence barrister in the case insisted there was nothing to clarify. “Our lawful excuse defences were reviewed by the judge and he sent robust directions to the jury,” said Mr Chada. “There was no suggestion by the prosecution the judge got it wrong.”

Cabinet minister Grant Shapps suggested that the Police, Crime, Sentencing and Courts Bill close a “loophole” limiting the prosecution of those who damage memorials. The bill, currently going through parliament, would move more cases into crown court and increase the maximum sentence in such cases to 10 years’ imprisonment.

But legal expert Prof Thomas Lewis, director of the Centre for Rights and Justice at Nottingham Trent University, told The Independent that the bill could see more jury acquittals.

“The bills seeks to give extra protection to memorials by moving these cases from low-level magistrates courts and putting them before a jury,” he said. “The point about juries, dating back to the Magna Carta, is that they are the voice of the ordinary people. You have to accept their verdict.”

Zehrah Hasan a barrister at Garden Court Chambers and campaigner at the Black Protest Legal Support group, warned the government against questioning jury verdicts. “Suella Braverman threatening to use her power to question the legal basis for the jury decision is ill-informed, and it’s another example of the Tory government’s authoritarianism.”

Grey Collier, advocacy director at human rights campaign group Liberty, added: “This government has form for trying to overturn things it doesn’t like. This looks like the government is trying to subvert the rule of law by going behind the systems we have in place.”

Wera Hobhouse MP, the Liberal Democrats’ justice spokesperson, said it was “unacceptable that politicians are trying to trespass into what should be left to our independent court procedures – the Tories should step back from undermining our democracy”.

Section 36 of the Criminal Justice Act 1972 allows the attorney general, following a submission from the Crown Prosecution Service (CPS), to ask a higher court to clarify a point of law. But it is not a means of changing the outcome of an individual case.

A CPS spokesman said: “We are considering the outcome of the case but, under the law, the prosecution cannot appeal against a jury acquittal.”

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