The Observer view on Tories’ questioning of Colston verdict
There is a plaque in the Old Bailey that commemorates the “courage and endurance” of Edward Bushell and 11 other jurors. In 1670, they were locked up by a judge without food and water for two days because they refused to change their not guilty verdict in the case of two Quakers who had been charged with unlawful assembly. Bushell petitioned the courts and the chief justice at the time, Sir John Vaughan, ruled that a jury could not be punished on account of the verdict it returned. In doing so, he established in English law the essential principle of jury independence.
That principle means there is no such thing as an “incorrect” jury acquittal: juries have an absolute right to acquit a defendant in a criminal trial regardless of the legal arguments advanced in a case. Yet in the case of the not guilty verdict returned by the jury in the Colston four case, senior Conservative politicians, including the attorney general, the principal legal adviser to the Crown and the head of the Bar in England and Wales, have weighed in with explicit or implied criticism of the verdict, a fundamental undermining of the rule of law.
The Colston four were charged with criminal damage for their role in toppling the statue of the slave trader Edward Colston in Bristol in 2020. Colston made his fortune by trafficking 80,000 men, women and children from Africa to America in the 17th century; one in five died in dreadful conditions en route. Bristol residents have, to little avail, long petitioned for their city to revisit the grossly offensive way he is honoured, including through this statue, which made no mention of his terrible legacy.
The defendants’ acquittal by a jury should be the last word in this case. There were four potential defences put forward by lawyers for the four protesters; even if the jury found none convincing, they were still within their right to return a verdict of not guilty. But Tory politicians, including the prime minister and the home secretary, have picked a culture war with antiracism protesters and well before the trial made their opinions on the toppling of the veneration of a slave trader well known. Since the verdict, they have not been able to resist implicitly expressing opinions on the lawfulness of its actions, thus undermining the rule of law.
Robert Jenrick, the former communities secretary, suggested that the jury verdict itself undermined the rule of law, thus committing the very deed he wrongly accuses them of. Robert Buckland, the former justice secretary, himself a lawyer, called the verdict “perverse”. The transport secretary, Grant Shapps, said the government would fix the “loopholes in the law” that allowed for the jury verdict, without specifying what he meant, and indeed, whether he was questioning the very principle of jury independence established in 1670.
By far the worst intervention, however, came from the attorney general, Suella Braverman, who announced via social media that, while trial by jury is an important right, the Colston verdict is causing confusion and so she is considering referring it to the court of appeal to clarify the law. A referral to the court of appeal is within her rights as attorney general and, as she stated, the court of appeal cannot overturn the jury verdict. However, there is absolutely no justification for her announcing that she is considering seeking a clarification on the law, without also setting out exactly what point of law in the judge’s directions to the jury, or in the court proceedings, is unclear. This is a gross politicisation and serves no purpose other than allowing her to inappropriately express a view on the jury’s verdict.
Braverman’s announcement is only the latest sign of a Tory government only too willing to trash the rule of law for its own political ends. The examples abound, most memorably, Boris Johnson’s attempted prorogation of parliament in July 2019, ruled unlawful by the supreme court. Johnson said he disagreed with the supreme court, a nonsensical position given the highest court in the land does not opine on the law, it states how the law applies. Another cabinet minister, Jacob ReesMogg, accused the supreme court of a “constitutional coup”.
But there are others. In 2016, Liz Truss while lord chancellor failed to defend the independent judiciary against dangerously hostile attacks from the press. In November 2020, the Home Office released a video that attacked “activist lawyers” for representing clients against the state, a role without which the justice system would not deserve its name. The government introduced the internal market bill in late 2020, which ministers readily conceded broke international law. And in recent years there have been repeated political attacks on judicial review – a vital route through which citizens can challenge the lawfulness of government actions – that give the impression of a government that wants to avoid all consequences of acting unlawfully. This rubbishes the core principle that the law applies equally to us all, including those involved in making it.
The uncodified British constitution means that we as citizens rely on our politicians to abide by an unwritten honour code: that they will act to uphold the rule of law and respect the seven principles of public life. There may be advantages to a flexible constitution, but it is vulnerable to battering by a populist government such as Johnson’s. He is a prime minister with little regard for standards in public life or the rule of law. The damage Johnson is doing to fundamental constitutional principles that have evolved over centuries to protect citizens from the unlawful excesses of the state will last long after he leaves office.