On 28 September 2022 the Court of Appeal effectively ruled that Human Rights are not a valid defence for protesters charged with the destruction of property.
The Attorney General, the Rt. Hon. Suella Baverman QC MP referred to the Court of Appeal on a question of law following the exoneration of the Colston four, a group of protesters who, during the height of the Black Lives Matter (BLM) movement toppled a statue of historic slave owner Edward Colston. The judgement made by the Court is referred to as Attorney General’s Reference on a Point of Law No 1 of 2022 (AGR1-22) and creates a binding precedent for future cases. The court made clear in paragraph 123 that the Colston four case did not turn on this point of law and that there will be no retrial of these particular defendants.
The court through AGR1-22 has made a number of distinctions based on what they consider to be “peaceful”, “violent” or “non peaceful” protest which is to say that Human Rights protection is not available in “violent” protest. The court concludes at para 87 that more than the most trivial of criminal damage will demonstrate the “violence” of a protest.
This means that where a protest is “violent” or “not peaceful” these issues need not even be considered. Where the protest is “peaceful” a proportionality assessment should be undertaken, as the court makes clear, in only very limited circumstances.
In truth, it seems clear that Human Rights arguments are rarely foundational to successful criminal defences in protest related matters. It is hardly an effective defence to criminal damage, assault against an emergency worker, or aggravated trespass to say that you were exercising some right to free speech or free assembly when you did so. Human Rights do not offer a carte blanche freedom from criminal persecution and never have. AGR1-22 makes little practical difference to defendants, but does symbolically showcase judicial temperament moving further and further from sympathy for protest related cases.
For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.
John Szepietowski
This was correct as at October 2022