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Proposals are contained at Section 46 of the Police, Crime, Sentencing and Courts Bill 2021 to allow for specific provision for the prosecution of criminal damage to memorials, to increase sentencing powers and allow for those cases to be tried in the Crown Court.
In an Impact Assessment Document produced by the MOJ, they explain the proposals to allow for ‘criminal damage to memorials’ arose as a result of the protests of summer 2020. It then swiftly moves into citing statistics of war memorials and focuses entirely on war memorials. There is little issue taken by the public at large, that memorials commemorating the fallen service personnel of World War I and World War II should be safeguarded and subjected to protection.
However, it is clear that this section of the bill is not actually about those memorials, but instead about criminalising those who remove statues of racists and slavers. It was made particularly clear in an article published on 16 January 2021 in the Sunday Telegraph (behind a paywall) where Conservative MP and Secretary of State for Housing, Communities and Local Government, Robert Jenrick MP, characterised the Bill as an attempt to “save Britain’s statues from the woke militants who want to censor our past” and would protect statues from being removed “on a whim or at the behest of a baying mob”.
The Colston Effect
The ‘Summer 2020’ reference is clearly referable to the Black Lives Matter protests, and particularly the removal of the 17th century bronze statue of the slave trader Edward Colston from Bristol Harbour on 7 June 2020.
At the time of the statue being defaced and removed, Avon and Somerset Police decided not to intervene. There had been longstanding and repeated calls for the statue to be removed, however it was not acted upon by the Council. Infamously when the statue was finally toppled by protestors, Mayor of Bristol Marvin Rees said he ‘felt no sense of loss’.
Initially there was a decision not to criminalise or prosecute the action. In October 2020, Six protestors accepted conditional cautions for criminal damage whilst four others had their cases sent to the Crown Prosecution Service (CPS) for charging advice. Those four protestors were subsequently charged with criminal damage (the value of the damage being under £5,000) and their first appearance took place at the Magistrates Court in January 2021. The four individuals pleaded not guilty and elected crown court trial. A hearing took place on 2 March 2021, with a further hearing due to take place on 18 November 2021. The trial is listed for 13 December 2021 at Bristol Crown Court.
At the time, the vast majority of people saw this as a key moment in the protests, and sparked the removal of other statues, including the removal of the local statue of fellow slave trader Robert Milligan from Canary Wharf. As of December 2020, it has led to nearly 70 instances of the removal of statues or renaming of venues to remove reference to figures who were involved in the slave trade, or that perpetrated harms to marginalised groups of people.
The current legal framework
Criminal damage is currently an offence pursuant to Section 1(1) of the Criminal Damage Act 1971. To be guilty of an offence you have to:
- Destroy or damage property; and
- The damage is caused Intentionally or recklessly; and
- The property belongs to another; and
- the damage is caused ‘without lawful excuse’.
Where the value of the damage is under £5,000, it is triable only summarily (i.e., can only be tried in a magistrates’ court). The maximum sentence is a level 4 fine, and/or 3 months custody, with a range from a Discharge to 3 months custody.
Where the value of the damage exceeds £5,000, it is triable either way (i.e., before the magistrates’ court or before the crown court). The maximum sentence is 10 years’ custody, with a range from a Discharge – 4 years custody. This means in practical terms a judge would have to go well outside the sentencing guidelines to go above the 4 year custody point (contrary to political sound bites tweeted by the Former DPP, Sir Keir Starmer QC MP)
The proposed legal framework
Section 46 of the Police, Crime, Sentencing and Courts Bill 2021 seeks to amend Section 22 of the Magistrates Court Act 1980. The amendment would remove the £5,000 limit. Currently the law states that where the value is less than £5,000 the case is to be treated ‘as if the offence were triable only summarily. The removal of the limit would allow cases to be sent to the Crown Court for trial (as well as giving a client to elect crown court trial).
It also seeks to insert a broad definition of ‘memorial’ which would include a ‘building or other structure or any other thing, erected or installed on land (or in or on any building or other structure on land’ as well as ‘a garden or any other thing planted or grown on land. This broad definition would allow the criminal offence to broadly be applicable to anything so long as it ‘has a commemorative purpose’.
‘Commemorative purpose’ is also given a broad interpretation, to include individuals, animals, an event or series of events. There are also proposals to include within the definition of a memorial transient objects, such as a bunch of flowers.
Taken to its logical extreme, memorials and statues would become broadly untouchable by the amendments to the Bill.
Effectively, the proposals are in place to allow for cases to be subjected to the full sentencing guidelines, and thereby allow for offences to be sentenced in the Crown Court. Judges in the Crown Court have far greater sentencing powers. It is quite possible that in any event new sentencing guidelines will be produced by the Sentencing Council.
The other practical distinction is that on a Disclosure and Baring Service Check (DBS) the conviction would specify that it was criminal damage to a memorial rather than simple criminal damage. This would place employers (or prospective employers) on notice to the nature of the criminal damage, rather than the simple substantive of criminal damage. This is perhaps of most significance to the student element of protests.
It is quite possible that although the increase in sentencing powers may worry defendants in criminal proceedings the effect of the change to allow for higher sentencing powers creates an opportunity for defendants to have their trial in the Crown Court with a jury trial. A jury is much more likely to be sympathetic to some of the cases which may be caught by the amendments put forward by the Bill. Jury trials are traditionally more likely to produce an acquittal for a defendant, rather than a trial in the magistrate’s court, and these cases often turn on society’s view (put plainly – does society want a statue of a racist in the town square? If no, acquit, if yes, convict!)
On face value, what may appear like a monumental shift, may appear to be nothing more than a ceremonial variation.
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Liam Lane is a trainee solicitor at Edward Fail, Bradshaw & Waterson.