On Sunday 7 June protesters in Bristol tore down the statue of Edward Colston. It was swiftly deposited it in the local harbour. What many will see as being wholly justifiable, some will see as criminal damage.
The statute had been in situ for 125 years and had previously attracted a petition of over 10,000 names calling for its removal. This is due to Colston’s close connection to the slave trade.
The Home Secretary made this comment:
‘Sheer vandalism and disorder is completely unacceptable and its right the police follow up on that and make sure justice is undertaken.’
In contrast, the Mayor of Bristol commented:
‘I think that there’s a really incredible opportunity to talk about ourselves and to make a decision about what we think should go on a plinth in the city to tell us about who we are, not just who we are but who we want to be and to really use that as a place to celebrate something about ourselves, the best of ourselves. What I would look forward to is having that city discussion. In the meantime it’s highly likely that the Colston statue will end up in one of our museums.’
Was any offence committed?
The statue appears to be in the ownership/control of the City of Bristol. On that assumption, the Criminal Damage Act 1971 applies. It is difficult to envisage any sensible defence to the charge (see Kelleher  EWCA Crim 3525).
The value of the statue will significantly exceed £5,000. As a result, the offence is one that carries a maximum prison sentence of up to 10 years. In addition, anyone convicted could face a hefty compensation claim to put right any damage.
Whilst many people will wonder why the statue remained in place given Colston’s tarnished reputation, it is likely that the courts will nonetheless take a dim view of the protesters actions, and possibly seek to discourage further like activity, mainly as there are probably many hundreds, if not thousands, of similar statues in our public places.
Deterrence may play an essential part in any sentencing exercise.
In 2003 Paul Kelleher was convicted after damaging a statue of former Prime Minister Margaret Thatcher. The court recording the following facts:
‘…on 3 July 2002 he visited the Guildhall Gallery, which houses the Corporation of London art collection, armed with a cricket bat and with the Intention of knocking the head off a statue of Lady Thatcher, that statue being on temporary loan from the House of Commons. The cricket bat proving ineffectual, Mr Kelleher took hold of a metal stanchion, which supported the cordon round the statue, and with that was able to achieve his purpose. We understand that the statue was damaged beyond repair and will cost £150,000 to replace.’
Kelleher received a sentence of imprisonment of 3 months. That was never the subject of any appeal (unlike the conviction), so we do not know what the Court of Appeal thought of the sentence. Many commentators at the time believed the sentence to be somewhat lenient.
Sentencing Guidelines for Criminal Damage
In terms of current sentencing guidelines, we can see that there is a high degree of culpability (High degree of planning or premeditation and Intention to cause very serious damage to property), and the offence possibly falls into the higher harm category (Serious consequential economic or social impact of offence).
Assuming some successful argument on the latter point, we get to a starting point of around six months. This is higher in length that Kelleher, but not substantially so.
Anyone convicted of this offence is at risk of a custodial sentence, with no certainty that it would be suspended.
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The Sentencing Council has published a new set of guidelines. They cover arson and criminal damage of all kinds, as well as threats to destroy property. There were existing guidelines, but they were thought to be very limited and only covered the Magistrates Court. There were no guidelines for the Crown Court, which deals with the more serious offences.
What are sentencing guidelines for?
Sentencing guidelines are designed to ensure that the court passes an appropriate sentence and does so consistently across all of these extremely varied cases.
A judge must follow sentencing guidelines unless it is not in the interests of justice to do so.
The new guidelines will replace those that existed in the Magistrates Court and extend to the Crown Court. They cover all offenders aged over eighteen.
What factors will the Court consider?
The Sentencing Council has said that the guidelines will make sure courts consider:
- The full impact of arson or criminal damage such as vandalism on national heritage assets. This also includes listed buildings, historic objects or unique parts of national heritage and history.
- The economic or social impact of damaging public amenities and services. For example, a fire at a school or community centre, or criminal damage at a train station. This can adversely affect local communities or cause economic hardship to neighbouring houses or businesses.
- The effect on communities when an area’s emergency services or resources are diverted to deal with criminal activity.
The guidelines provide starting points, and category ranges for offences of arson, arson and criminal damage (intending that, or being reckless as to whether life is endangered), criminal damage over £5,000, criminal damage under £5,000, racially or religiously aggravated criminal damage of both values, and threats to destroy or damage property.
The guidelines require the sentencing judge or magistrates to determine the ‘culpability’. This takes into account things like planning, intended amount of damage, and motive, and ‘harm’. It also takes into account physical or psychological harm caused, the value of the damage, and any subsequent loss caused.
Racially and religiously aggravated offences are given an ‘uplift’ for the level of aggravation. This makes for more severe punishment and possibly lifts an offence above the custody threshold.
To take an example, criminal damage under £5,000 with elements of significant planning and causing a high amount of damage and distress would lead to a starting point of a high-level community order with a range from a medium-level community order to three months custody. If that were a racially aggravated offence, where the racial motive was a significant part of the offence, that would likely increase the starting point to a custodial sentence.
Comments by the Magistrates Association
Commenting on the new guidelines, John Bache JP, National Chair of the Magistrates Association, said:
‘We are very pleased that the new guidelines for Arson and Criminal Damage have been published, and will be available for magistrates from 1st October. These new guidelines will be very helpful to magistrates dealing with these important cases and clearly set out the relevant factors in determining harm, beyond a focus on physical damage. It is, however, right that if an offender has mental health conditions or learning disabilities then courts must obtain assessments to fully understand whether this impacts on their culpability, and this guideline will help to ensure that this happens.’
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The MET police in London announced this week that it was ‘not practical’ to investigate certain low level crimes in London due to a strain on budget and future savings that are required to be made.
According to New Scotland Yard, there would be a shift towards ‘empowering our officers’ to assess for themselves whether it was proportionate to investigate offences such as shoplifting, criminal damage and car crime. If the complainant in a case was not willing to attend court or the value of the loss/damage was relatively low there could be a decision not to even investigate.
The MET current working procedures
Currently when a complaint is made the police will investigate and make an arrest, or interview voluntarily, if they have reasonable grounds to suspect a particular person’s involvement. If a decision cannot be made about that particular case, the suspect is either bailed to return to the police station or ‘released under investigation’ (RUI). In bail cases the police will work towards making a decision by a particular date; in RUI cases the matter is left open indefinitely whilst investigative work continues.
Increasingly, often due to workload, we have found that RUI cases do not appear to be actively investigated by officers as they do not seem to be high priority. This leaves both suspects and complainants not knowing what will happen to their case. For a complainant, this could leave them feeling justice is not done; for suspects, there will be no way of knowing whether they will face charge and potential criminal proceedings.
Has the MET really thought about the negative consequences of this cut?
There are numerous concerns we have with the proposals laid out by the MET. One of which is the stage at which the decision not to investigate will be made. If made at the point of complaint the effect is likely to be that there are no arrests; this could potentially lead to an emboldening of suspects. If a person inclined towards theft knows that there is a no investigation policy for theft below £50 they are likely to more carefully plan their theft so that it falls below that particular threshold. What is likely to happen is that there is a shift towards lower value theft but in far greater volumes.
If there is no investigation, and of course no arrest, charge and sentence to follow, victims will be left out of pocket and with a feeling that justice has not been done. This could lead to shops and retailers having to tighten their own security, the cost of which is almost inevitably going to pass to the innocent consumer.
Perhaps more worrying is the possibility that retailers and individuals alike may dispense their own justice. If a low-priority theft is not investigated, will it follow that a low-level assault committed on a suspected shoplifter also not be investigated? With budget cuts likely to continue will the new policy be extended; ie the threshold extended to £100?
Policing and law enforcement must not be cut: the criminal justice system is in danger!
We have all had to deal with the years of austerity and cut-backs, but policing and law enforcement is one of the key areas that simply cannot be cut. The criminal justice system is already at breaking point with decrepit prison conditions, prosecution failings, legal aid cuts and court closures. Of course there has to be prioritisation of certain criminal offences, but it should not be at the cost of properly policing and enforcing lower level offences.
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Duncan Roberts, SolicitorRead More