A thought experiment on criminal damage

Following the ongoing fallout from the trial of the Colston Four, and amid much confusion caused by the way in which the complicated issues have been presented by commentators and politicians, it may help to say a little more about criminal damage.

I would like to take a hypothetical situation, wholly unrelated to the Colston statue case, which I hope shows how the law of criminal damage works.

This example is deliberately stark. It is for illustrative purposes, not because I am drawing factual parallels with the Colston case. It is not intended to replicate all of the issues in that case. It is aimed at taking the heat out of the argument so that we might better understand why the law operates as it does.

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Imagine that a member of far-right group becomes a tenant of a council property directly next to a synagogue. The day after moving in, the new tenant commissions a large mural to be painted on one of the exterior walls, facing the entrance to the synagogue. It is an image which is ostensibly artistic, but which upon close examination is replete with obvious antisemitic tropes.

Members of the synagogue complain to the police. “We don’t see the problem with the image,” they are told. “And anyway, it’s a local authority property. Speak to the council if you have an issue.”

Nothing happens. Time passes. The mural remains in place. Then one night, under cover of darkness, two people deploy a long-handled paint roller and cover the mural with white paint.

When the tenant wakes up, he contacts the police. The two whitewashers are swiftly identified from CCTV footage, and after a review by the Crown Prosecution Service, both are charged with causing criminal damage. They plead not guilty and elect trial by jury in the Crown Court.

In such a case, what would the law require a jury to consider?

Well, first, there would need to be proof that damage was caused. This, to a lot of people, might appear self-evident. The wall of the council property has been covered in white paint. It will cost money and effort to remove this. One of the defendants advances a creative suggestion that it has in fact not been “damaged” as a whitewashed wall is no more damaged than a wall daubed with a racist mural. But the prosecution case is that, by the legal definition, damage has clearly been caused, and that the two defendants intended to cause (or were reckless as to causing) damage.

Next, there would need to be proof that the damaged property “belonged to another”. Easy in this case – it belongs to the council. Tick.

But that’s not the end of the matter. Nor, I expect, would most of us think it fair if it were.

Because the law requires that the prosecution not only have to prove intentional or reckless damage of property belonging to somebody else, but that the defendants did not have a “lawful excuse” in causing that damage. Because if your reason for causing the damage is lawful, by definition, the damage cannot be criminal.

So what might count as a “lawful excuse” for causing the damage? There’s no finite list of lawful excuses, although examples are provided for by case law and in legislation.

One example in legislation is when the defendant honestly believed that the owner would have consented to the damage. And, in our hypothetical case, that is what the defendants say. They say that they honestly believed that, had the council appreciated the full circumstances, including the grave offence that was being caused to Jews attending synagogue, the council would have consented to the wall being painted over. Now, the prosecution say that there was no such belief. This is a fiction created after the event by the defendants. The truth is that they didn’t stop to think whether the council would have consented. They didn’t even ask the council. This is a convenient post-facto justification.

And so we have two irreconcilable positions. The defendants saying that they honestly believed that the council would have consented. The prosecution contending that no such belief existed. How do we determine what was in a defendant’s mind? We ask a jury. And this is a wholly normal question for a jury to determine in a criminal case. “What did the defendant genuinely believe? What was going through his head?” These questions are decided by a jury listening to evidence – including evidence from the defendants, and their account being cross-examined by a theatrically disbelieving prosecutor – and by speeches from the lawyers for each side.

What other “lawful excuses” might there be? Well the law provides that any person is allowed to use “reasonable force” to prevent a crime. It doesn’t matter whether a crime was in fact being committed – what matters is whether the defendant honestly believed that a crime was being committed. Which is wholly sensible, you may think, given that we cannot all be expected to be masters of the criminal law. Even those of us who think we are can make mistakes. If you see a man running towards a bank wearing a mask and you heroically grab this would-be robber by the top and rip his jumper, it would not be fair to brand you a criminal on the basis that it transpired that man was running late for a fancy dress party. So it’s what is in the defendant’s mind that matters. It’s the same with self-defence – what matters is the circumstances as the defendant honestly believed them to be.

So in our case, the defendants say that they did honestly believe they were preventing a crime. The presence of that mural was a hate crime. They can’t quote chapter and verse of the legislation, but their lawyers can. And they call expert evidence to tell the jury about the history of antisemitic tropes in art, and how and why it is that a mural such as this is found by many people to be so very offensive, to the extent that it was criminal under one of those laws. And, they say. what we did – whitewashing the wall – was reasonable to prevent that crime.

The prosecution of course disagree. The prosecution say that the defendants did not honestly believe the mural was a crime. They may have found it offensive, but they didn’t seriously think it was criminal. Again, it’s a fiction engineered to justify obviously criminal conduct. And in any case, even if – even if – the defendants had genuinely thought the mural criminal, it was not reasonable to deface it with white paint. Not when there were alternatives open to them, such as calling the council directly. We can’t take the law into our own hands. We can’t just damage things that offend us, as a shortcut to the lawful routes open to us in a democracy.

So once more, we have a dispute about what was in the defendants’ minds. We also have a value judgement about what is “reasonable”. The arbiter, again, is our randomly selected jury. They will hear the evidence, assess the competing arguments, and make a decision: That decision is not, “Which version do we prefer?” but “Are we sure the prosecution are right?”. Because the burden of proving a criminal case always rests on the prosecution. Not sure equals not guilty.

Now let’s say our jurors are sure that damage has been caused. They are sure that the defendants didn’t really believe that the council would have consented, and are sure that the defendants did not honestly believe they were acting to prevent a crime. Is that the end of the matter?

Well, no. And this is where an unusual legal argument kicks in. As this case engages the defendants’ rights to freedom of conscience and freedom of expression, the defence lawyers argue – and the judge agrees – that, before the jury can convict, they have to be sure that a conviction is a proportionate interference with those rights. In other words, is a conviction necessary in a democratic society, in the interests of public safety or for the protection of the rights of others? The prosecution say yes, absolutely. The law is the law. A conviction is necessary, otherwise anybody who disagreed with anything could damage it at will. The defence argue no. Even if an offence has been committed, the harm caused is minimal, and expressing one’s rights in this way should not, proportionately, attract a criminal conviction.

Again, the jury has to decide. They are strongly directed that the question has nothing to do with the merits of the defendants’ cause – it is irrelevant whether the jury agrees with them or not. The same principles would apply if the defendants’ beliefs were wholly unattractive.

And the jury do decide. They hear the evidence. They listen to the legal directions, including the judge’s reminder not to be influenced by any appeals to emotion made by the defence, but to focus on the evidence and apply the law as he has told them to. And then they retire to deliberate, to discuss the evidence they have heard and the arguments advanced by the prosecution and the defence, and to ask themselves whether, on each part of the case that the prosecution needs to prove, they are sure. At the end of their deliberation, they return verdicts of not guilty. We don’t know why – which defence(s) succeeded or where they found the prosecution case had fallen short. And we will never know why. We just know there was a lot for them to consider.

Then, immediately, all hell breaks loose.

People are angry. Politicians are warning that the rule of law is in peril. Many say that this trial was open and shut – the only question for the jury was whether damage had been caused, and the answer to that was obvious. One even suggests we may need to abolish juries.

The anger is not because people have somehow discovered the reasons for the verdicts, and can show the jury have abandoned reason in favour of emotion. Not because people have carefully considered the legal directions and put forward arguments as to how the judge may have got it wrong in how he approached the law (for instance, in the way he dealt with the novel argument on “proportionality”). Not because people sat through the trial and heard all the evidence and can articulate how the jury logically erred in their approach to the questions they had to answer – the angriest people in fact appear not to know anything more than the bare prosecution allegations.

But because, instinctively, some people had wanted the verdicts to be something else. Not delivered independently by a jury hearing evidence; but ordained by somebody sharing their exact personal and political beliefs.

The jury got it wrong, the cry goes up.

But nobody can explain why.