The will of the people

The handwringing from some quarters, mostly right wing politicians and media outlets, following the acquittal of the ‘Colston 4’ on charges of criminal damage in Bristol, England this week has prompted a lot of debate.

Back in June 2020, during a Black Lives Matter protest in Bristol, a monument of 17th century slave trader Edward Colston was pulled down and thrown into the harbourside. Consequently, four of those involved, were charged with criminal damage. The statute of Colston was recovered from the harbour and is now in a local museum.

I’m not going to into the in and outs of the legal case, but there is an excellent explainer by ‘The Secret Barrister’, a criminal lawyer, that considers the law of England & Wales on criminal damage and the jury system (Scotland is slightly different) and legal considerations in this case. Although I think the most important points are that jury verdicts do not actually set legal precedents and a ‘not guilty’ verdict is also a valid outcome in the operation of the ‘rule of law’.

Although rare, that juries might reach a not-guilty verdict in what may seemingly be an open and shut case, shouldn’t come as a surprise. There are plenty of examples in English law where this has happened. The Colston 4 didn’t deny pulling down the statue, or their actions.

Bushell’s case is a famous 17th century English trial and legal case which removed a judge’s power to punish juries that didn’t reach the ‘right’ verdict. The case involved a juror on the case against William Penn (of Pennsylvania fame) and William Mead. Both had been arrested in 1670 for illegally preaching a Quaker sermon and disturbing the peace, but four jurors, led by Edward Bushell, refused to find them guilty. Instead of dismissing the jury, the judge sent them back for further deliberations. Despite the judge demanding a guilty verdict, the jury now unanimously found Penn guilty of preaching but acquitted him on the charge of disturbing the peace and acquitted Mead of all charges. The jury was then subsequently kept for three days without “meat, drink, fire and tobacco” to force them to bring in a guilty verdict; when they failed to do so the judge ended the trial. As punishment, the judge ordered the jurors imprisoned until they paid a fine to the court.

Four jurors refused to pay the fine, and after several months, Bushell sought a writ of habeas corpus from the Court of Common Pleas. Chief Justice Vaughan discharged the writ, released them, and called the power to punish a jury “absurd”, and forbade judges from punishing jurors for returning a verdict the judge disagreed with. This series of events is considered a significant milestone in the history of ‘jury nullification’ and the case law in England & Wales that says a judge cannot direct a jury to convict anyone – an important safeguard in exercising judicial power. The particular case is celebrated in a plaque displayed in the Central Criminal Court (the Old Bailey) in London.

More recently, in 1982, during the Falklands War, the British Royal Navy sank an Argentine cruiser, the ‘General Belgrano’ with considerable loss of life. Three years later a British government employee named Clive Ponting leaked two government documents concerning the sinking of the cruiser to a opposition Member of Parliament and was subsequently charged with breaching section 2 of the Official Secrets Act 1911. The prosecution in the case demanded for the jury to convict Ponting as he had clearly contravened the Act by leaking official information about the sinking of the Belgrano during the Falklands War. His main defence, that it was in was in the ‘public interest’ that the information be made available, was rejected on the grounds that “the public interest is what the government of the day says it is”, but the jury acquitted him, much to the consternation of the government.

So juries reaching perverse or uncomfortable verdicts is not without precedent, but you can see why it might cause problems some politicians who like to tell us what the ‘will of the people’ is and that history should not be ‘cancelled’? With all the recent debate around statues of slave traders could it actually be that in reality there is widespread public support for taking down such monuments?

The handwringing is all the more hypocritical when you consider the same people say they cherish British institutions, sovereignty and want laws made and enforced in the UK. Those politicians, some of whom are the same that supported Brexit in 2016, would tell you they were distrustful of anything with the word “European” and that they dislike the notion of fundamental human rights. Instead those politicians prefer “ancient liberties” and “the common law” and extol Magna Carta (where trial by jury has roots) and seek to replace the Human Rights Act with a “British Bill of Rights.” If you were to press someone with this mindset for specifics, they would perhaps mention freedom of speech and trial by jury. Then, suddenly, a jury acquits in a high profile culture war case, and the cry is “No, not that sort of trial by jury!”

It is absurd on another level. Edward Colston was “chief executive officer” of a company responsible for enslaving more Africans than any other in British history. While Colston was a shareholder in the Royal African Company (RAC) it shipped 84,000 Africans into slavery, including 12,000 children. It is believed the company transported more Africans into slavery than any other company in the whole history of the slave trade in the north Atlantic. Colston was heavily involved in the company, eventually becoming deputy governor, a position equivalent to a modern chief executive. For almost all of his tenure he was in the elite of the elite, not just someone who was invested but someone able to make directions about what the company did at the time.

The agents of the company meted out violence and brutality to Africans kidnapped into slavery, which operated fortresses along the coast of Africa where people were imprisoned before being transported. Slaves were branded with hot metal with the initials ‘RAC’ to show they were company ‘property’ including to children as young as nine years old. When you get into the details you can at the very least understand why the citizens of Bristol didn’t want a statue of slave trader and murderer gracing their city.

Colston was involved in the RAC between 1689 and 1692. He died in 1721. Colston’s statue was erected in 1895, but it is really odd to see people being described against slavery as a “21st century value”. There were abolitionists when Colston was alive and it was a popular movement by the end of the 18th century. The abolition of slavery was literally part of 19th century British values – the will of the people and parliament if you like – with abolishment laws passed in 1807 and 1833. Colston’s involvement in the slave trade, despite philanthropic works in Bristol for which the statue was in part honouring, has been known about since 1920 with calls since the 1990s in Bristol for the statue to be removed long before the current culture war argument started.

Colston was a particular person. His monument belongs to a specific time and place – and is now in a Bristol museum, which hardly suggests a motive to ‘erase’ the past. But perhaps the jury’s decision (and we don’t know their reasoning as this remains secret) shows that members of the public are more than willing to think about the messages embedded in our built environment, including monuments – so many of them Victorian. Maybe they accepted the defence’s case that it was the presence of the statue, and failure to update the plaque, that constituted a moral – if not a legal – offence.

Reckoning with the past is difficult. Britain was once an empire that governed vast areas of the world. Astonishing levels of greed and cruelty are part of our history. Everyone who cares about knowledge should support efforts to increase public understanding of all this. In organisations across the country, including the National Trust good work is being done.

But we are in a place, not just in the UK, where some politicians have set their face against anything that might make heritage less celebratory, condemning as “woke” all attempts to place artefacts such as those that fill British country houses (and city squares) in a broader context.

Statues are symbols, and tackling racism requires more than moving them. But acknowledging historic injustices is a valid part of public discourse and historical enquiry. Rather than complaining about the way in which the law has been applied, as some politicians have done, it may be worth recognising that Britain is better off without Bristol’s monument to Colston. And perhaps the will of a 12 person Bristol jury is far wiser than their politicians in concluding that a statue to a mass murderer in a public square is not acceptable in modern Britain.

We wouldn’t raise and maintain a statue to Hitler would we?

Happy New Year.



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