During the UK's response to the CoVid-19 pandemic, some - not many - English people joined the "Black Lives Matter" bandwagon that was, after all, a reaction to events in the USA and which have little or no relevance in the UK where racism is far less endemic than in the USA. Does it exist? Yes, of course it does but every ethnic minority suffers while only "Black" lives matter to the troublemakers. They should address racism as a whole, not selectively.
I am not going to discuss the rights and wrongs of the Black Lives Matter "movement" other than to say that, in the UK, it has often been used as an excuse for thuggery and civil disobedience and as something for a media bored with coronavirus to write about when they couldn't go out and find a story.
In the present case, five young men, all white, pulled down a statue owned by the public and threw it into Bristol Harbour causing cost to recover, clean, repair and re-site it. In a city where race-based riots are far from unknown, they claimed that the statue represented a slave trader and was therefore insulting to black people. Never mind that slave trading was only a tiny part of what John Cabot, the subject of the statue, did for international trade from which the entire city of Bristol benefited and so did the surrounding areas.
Let's just look at the disgraceful situation where these young men were acquitted, an acquittal which, if it is allowed to stand, creates carte blanche for anyone with an interest in a hashtag to commit crime and say "it's OK, I was just doing it because I follow that."
The broad-left, including The Guardian, are heralding the decision as a beacon of free speech.
No, it was catastrophically bad and arguably corrupt.
The facts are these.
The defendants made a positive decision to cause damage to property which they did not own and followed a course of action to put that into effect.
Those are the only two elements of the crime.
Their motive - as would be the motive of, say, "animal rights protestors" - is irrelevant to the crime but it may be relevant to sentencing. There was no imminent danger here that might be used as a defence.
The judge failed to properly direct the jury. The defence played on motive not conduct and the prosecution failed to make the simple aspects of the action with sufficient force.
"Motive" should not have been allowed in evidence but only in mitigation. The judge should have made that clear, pre-trial, and enforced his ruling. The prosecution should have made an application for such a ruling and pushed it relentlessly - and even drawing the attention of the jury to that if they lost.
This is how the trial should have gone:
Trial:
"Did you do it? " Yes.
"Did you intend to do it?" Yes.
Guilty.
Sentencing:
"Why did you do it"? Reasons...
Sentence accordingly.
It seems to me that the jury could not have come to the decision to find the defendants not guilty if it was properly directed and if the Judge had not allowed evidence of motive to be led when the only thing the jury needed to know about was intent.
The decision should be overturned on appeal for the reasons above and it should be remitted to a differently constituted court for sentencing. And judges should be instructed on the scope of evidence relating to guilt v matters in mitigation. Prosecutors must be prepared to be aggressive and to constrain the use of rhetoric to muddy the waters.
Why do I care so much?
First, it flips the rule of law on its head, allows mob rule a free hand and makes way for a breakdown of law and order. You might think I am overstating the case but I'm not.
Secondly, put simply, the judge abrogated his responsibility: had he been faced with a guilty verdict, then he would have had to decide on penalty and no matter what he decided there would have been criticism. That's tough: it's what judges sign on for. They are not there to avoid making difficult decisions; they are there to take it on the chin.
But even that is not my main concern. Let's have just one example of the terrible mess this decision leaves English law (and all those legal systems that take precedents from English law) in..
The UK has recently broken with the EU and that freed it to create an independent sanctions regime. True it's highly selective (murder thousands in Palestine, fine; arrest a few thousand, we'll freeze your bank account) but it's early days. Hopefully, it will, in time, be applied without fear or favour.
But what use is a sanctions regime if it turns out to be optional? At the moment, it's only about travel and freezing orders. That is likely to change as the UK takes more control over its laws.
There are other sanctions, ordered by the United Nations and by the EU (sanctions which the UK remains bound to follow for the time being).
If motive is to be held as a defence, then the entire system of sanctions will fail, for example.
"Oh, but I think the government is wrong to sanction the leaders of that despotic regime so I decided to ignore the Order and send the weapons anyway."
It's not a slippery slope. It's not the thin end of the wedge.
It's here.
Now.
Until this stupid decision is overturned.
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Nigel Morris-Cotterill is a former Solicitor and author of "Sun Tzu and the Art of Litigation" available in paperback from Amazon group websites and some traditional bookshops.
For details, click on "Books."
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