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| June 2020 |
Some people detest the very existence of particular statues and are prepared to protest about them, damage them or even forcibly remove them. The recent Black Lives Matter protests have seen the words "was a racist" paint-sprayed on to the Churchill statue near Parliament - iNews 14 June. A statue to Edward Colston (1636-1721) was removed in Bristol and thrown into the harbour. It was subsequently "fished out" and taken into storage. I will return to Mr Colston later.
Others purported to be on the streets to protect particular statues. CBS News reported on 13 June that "far right activists" had "descended on" London "claiming they were protecting statues from anti-racism activists."
Action was taken to ptotect several prominent statues or memorials from protesters. The picture shows the cenotaph in
Whitehall (London) boxed in to protect it from protesters. Similar action was taken with other statues such as those of Winston Churchill , Nelson Mandela, and Lord Baden-Powell.
Reaction - longer sentences / hold a review:
Reaction to all of this has included calls for violent protesters to face jail within 24 hours (The Sun 12 June) and politicians calling for 10 year prison sentences for "desecrating" war memorials (The Telegraph 13 June). See also The Telegraph 20 June 2020.
As other legal commentators have observed - (e.g. The Secret Barrister - The Guardian 15 June) - the offence of criminal damage already carries a maximum sentence of 10 years imprisonment - Criminal Damage Act 1971.
The Prime Minister announced a cross government commission to tackle racial inequality. Mr Johnson said that it will focus on discrimination in criminal justice, health, employment and education - Channel 4 - 15 June and Express and Star 15 June. Opposition MPs and race campaigners have criticised the idea of yet another review – with the Equality and Human Rights Commission pointing to “countless” reports and data already in existence which expose the scale of racial inequality in the UK.
One such report is the 2017 review by David Lammy MP which examined "the treatment of, and outcomes for Black, Asian and Minority Ethnic individuals in the criminal justice system." The recommendations remain to be implemented. Another example is the Windrush Lessons Learned Review.
Statues and Memorials:
In the UK there are thousands of statues and memorials recalling either notable events or the lives and actions of individuals. We have statues to Monarchs (e.g. Queen Victoria), Prime Ministers (e.g. Churchill, Lloyd George, Gladstone), figures from history such as Oliver Cromwell, military figures (e.g. Admiral Nelson, the Duke of Wellington). Other statues commemorate the lives of those who, in a particular locality, performed some deed or service or, quite often, who donated money to the locality perhaps to address a local need.
Bearing in mind that "beauty is in the eye of the beholder" it is true to say that many statues have considerable artistic merit in their own right regardless of who or what they commemorate. The deeper question is who merits a statue and what criteria exist. It seems that there are no general rules about this but planning permission from the council is usually required.
It is perhaps natural enough to mark the lives of notable individuals but, at times, this has been done without due regard to the entirety of the individual's life and inscriptions on some statues and memorials have not presented an accurate picture of the individual. The inscription on the Colston statue in Bristol offered an example of inaccurate wording - "Erected by citizens of Bristol as a memorial of one of the most virtuous and wise sons of their city.”
A further feature of some statues is that they are "listed buildings." Bristol University Law School blog notes that, in 1977, the Colston statue became a Grade II listed building - see the interesting discussion at Edward Colston: Listing Controversy. The practice of listing objects as buildings was recently reviewed in the Supreme Court in Dill v Secretary of State for Housing, Communities and Local Government and Another [2020 UKSC 20].
Nine years ago on this blog I wrote about a large portrait of Lt. Gen. Thomas Picton (1758-1815) which was on display in a courtroom in Carmarthen - previous post 27 November 2011. Picton was appointed military governor of Trinidad and his term of office was noted for brutality amounting, even by the appalling standards of those days, to torture. I wrote that the fight against torture must fall to each generation to continue to seek its prevention. The torturer is "hostis humanis generi" (the enemy of mankind). I concluded by writing - "The condemnation of torture can also be extended in many small ways. Perhaps the time is right for the removal of Picton's portrait from a courtroom in the United Kingdom." This plea went unheeded but I believe that the courtroom is no longer in use - Wales Online 13 May 2019.
Edward Colston:
A statue of Edward Colston stood in Bristol from 1895 to June 2020.
Colston was born in 1636 and died in 1721. It was not until 1895 that his statue was erected in Bristol. His entry in Wikipedia notes that - "In 1680, Colston became a member of the Royal African Company, which had held the monopoly in England on trading along the west coast of Africa in gold, silver, ivory and slaves from 1662. Colston was deputy governor of the company from 1689 to 1690. His association with the company ended in 1692."
Wikipedia goes on to note - "Although it is unknown how much Colston gave to charity, his name permeates Bristol on buildings and landmarks. Colston supported and endowed schools, almshouses, hospitals and churches in Bristol, London and elsewhere ..... In Bristol, he founded almshouses in King Street and Colstons Almshouses on St Michael's Hill, endowed Queen Elizabeth's Hospital school, and helped found Colston's Hospital, a boarding school which opened in 1710 leaving an endowment to be managed by the Society of Merchant Venturers for its upkeep. He gave money to schools in Temple (one of which went on to become St Mary Redcliffe and Temple School) and other parts of Bristol, and to several churches and the cathedral. David Hughson, writing in 1808, described Colston as "the great benefactor of the city of Bristol, who, in his lifetime, expended more than £70,000 in charitable institutions." (Note: The equivalent of around £6.25m today).
The statue was commissioned by a committee organised by a Bristol printer and publisher - J. W. Arrowsmith. As Bristol Law School notes - "Historians tell us that financial contributions were so unforthcoming that an anonymous benefactor (probably Arrowsmith himself) had to pay the final amount." Unveiled by the Lord Mayor of Bristol on 13 November 1895, the statue was erected 170 years after Colston’s death.
The various Colston financial endowments were no doubt welcome in Bristol. A documentary by David Olusoga - A House Through Time - tells of the poverty existing in Victorian times. Life for most people was desperate and law and order was maintained by the infliction of severe punishments such as hanging, corporal punishment, transportation.
Controversy over the statue arose in recent years because of Colston's involvement in the slave trade. This brutal and horrific trade made many individuals very wealthy and, when slavery was finally abolished in 1833, many slave-owners were compensated financially for loss of their "property." For a considerable time efforts were on-going to either have the Council remove the statue or, at least, to alter the inscription to point out the provenance of much of Colston's wealth - see Bristol Live 10 June. Efforts to address this wording on the statue are described in an article by the Bristol Radical History Group - The Edward Colston corrective plaque
Throwing the statue into the harbour appears to be symbolic of the infamous ship known as The Zong where a ship captain decided to “jettison” some of the cargo (i.e. the slaves) in order to save the ship and provide the ship owners the opportunity to claim for the loss on their insurance. The Zong was owned by a syndicate of Liverpool merchants including a William Gregson who became Mayor of Liverpool in 1762. By the end of his life, vessels in which Gregson had a financial stake had carried 58,000 Africans to slavery in the Americas.
Criminal Damage:
It is very likely that, in law, those responsible for removing the Colston statue committed criminal damage contrary to the Criminal Damage Act 1971 which defines the offence of destroying or damaging property.
The actus reus is destroying or damaging property. The mens rea is intent to destroy or damage the property or being reckless in that regard. BUT the section begins with the words "without lawful excuse." Those words have resulted in some interesting case law including R v Kelleher [2003] EWCA Crim 3525 where Kelleher's conviction was upheld.
Kelleher held strong and sincerely views about certain policies of the United States, the United Kingdom and other western countries which he considered were leading the world towards its eventual destruction. He was particularly troubled about the future of his infant son and others in like circumstances. Among his bugbears were the prevailing materialistic values and the influence which major corporations seemed able to exercise over supposedly democratic governments. Baroness Thatcher was among those he held responsible.
The law report states - "On 3rd July 2002 Kelleher visited the Guildhall Gallery, which housed 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."
The Court of Appeal (Criminal Division) held that, on the evidence, the trial judge was right to direct the jury that the defendant did not have a defence of lawful excuse.
This case presents a considerable difficulty for those trying to use political motives as a lawful excuse for criminal damage. Further discussion on this may be read at Barrister Blogger - The Colston statue destroyers have no defence in law but they will never be convicted
The case is also likely to test whether the European Convention on Human Rights - Freedom of Expression - offers defendants a defence to criminal damage.
A further discussion is at Hodge, Jones and Allen (HJA) - The Edward Colston statue: could the protesters be prosecuted and is there a defence?. Ths article looks at section 5 of the Criminal damage Act 1971 - honest belief in consent to the destruction or damage. IF the protesters believed that the owner of the statue would have consented to its destruction or damage then there might be a defence. Section 5 further provides that - "For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.
The HJA article also considers a possibility that the statue itself may have been a breach of the criminal law. Section 5(1)(b) of the Public Order Act 1986 states that a person is guilty of an offence if she or he:
Given the significant changes in attitudes towards
slavery and race since the statue was erected in 1895, as well as the
deeply distressing and personal history it invokes for many members of
the black community, it could be argued that the statue itself is a
visible representation that is likely to cause members of the black
community alarm or distress.
Dealing with the past:
There is a need to deal objectively with the past and to properly present it for the future. One example is the International Slavery Museum at Liverpool - itself a major slave trading port. Their website notes:
"Liverpool ships carried about 1.5 million enslaved Africans across on approximately 5000 voyages, the vast majority going to the Caribbean. Around 300 voyages were made to North America - to the Carolinas, Virginia and Maryland.
The ships returned to Europe with goods such as sugar, cotton, coffee and tobacco. Liverpool grew rich on the back of trading in enslaved people.
The resistance of enslaved Africans and the abolitionist movement brought the British slave trade to an end in 1807. However, Liverpool's connections with slavery continued through cotton and other trades that were dependent on slave labour for much of the 19th century.
The International Slavery Museum explores issues linking the Americas with Liverpool using our outstanding collections of artefacts and archives."
The Bristol Museum - Bristol and the Transatlantic Slave Trade - notes that "Bristol’s participation in the slave trade stretches at least as far back as the eleventh century. Irish and English slaves were routinely sold in the port from this time until the 1100s."
"By the late 1730s Bristol had become Britain’s premier slaving port. In 1750 alone, Bristol ships transported some 8,000 of the 20,000 enslaved Africans sent that year to the British Caribbean and North America. By the latter half of the century, Bristol’s position had been overtaken by Liverpool. But even as late as 1789, the trade to Africa and the West Indies was estimated to have comprised over 80 per cent of the total value of Bristol’s trade abroad."
The old form of slavery may have been abolished in 1833 but slavery continues in the modern world and takes many forms - see What is modern slavery?
This website comments - "Modern slavery is the severe exploitation of other people for personal or commercial gain. Modern slavery is all around us, but often just out of sight. People can become entrapped making our clothes, serving our food, picking our crops, working in factories, or working in houses as cooks, cleaners or nannies.
From the outside, it can look like a normal job. But people are being controlled – they can face violence or threats, be forced into inescapable debt, or have had their passport taken away and are being threatened with deportation. Many have fallen into this oppressive trap simply because they were trying to escape poverty or insecurity, improve their lives and support their families. Now, they can’t leave."
If we are to be serious about dealing with human exploitation and its dire consequences it is crucial that these matters are addressed. Truthful dealing with the past is an essential part of that process.
The UK has the Modern Slavery Act 2015.
Materials:
David Olusoga - A House Through Time.
Discovering Bristol - Slavery
BBC News - Why British slave owners opposed abolition
BBC News - Pub chain and insurer apologise for slavery links
BBC2 - Britain's Forgotten Slave Owners
The Guardian - Bristol should make peace with slavery past says Colston descendant
From Twitter
A further discussion is at Hodge, Jones and Allen (HJA) - The Edward Colston statue: could the protesters be prosecuted and is there a defence?. Ths article looks at section 5 of the Criminal damage Act 1971 - honest belief in consent to the destruction or damage. IF the protesters believed that the owner of the statue would have consented to its destruction or damage then there might be a defence. Section 5 further provides that - "For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.
The HJA article also considers a possibility that the statue itself may have been a breach of the criminal law. Section 5(1)(b) of the Public Order Act 1986 states that a person is guilty of an offence if she or he:
“distributes
or displays to another person any writing, sign or other visible
representation which is threatening or abusive, within the hearing or
sight of a person likely to be caused harassment, alarm or distress
thereby.”
Dealing with the past:
There is a need to deal objectively with the past and to properly present it for the future. One example is the International Slavery Museum at Liverpool - itself a major slave trading port. Their website notes:
"Liverpool ships carried about 1.5 million enslaved Africans across on approximately 5000 voyages, the vast majority going to the Caribbean. Around 300 voyages were made to North America - to the Carolinas, Virginia and Maryland.
The ships returned to Europe with goods such as sugar, cotton, coffee and tobacco. Liverpool grew rich on the back of trading in enslaved people.
The resistance of enslaved Africans and the abolitionist movement brought the British slave trade to an end in 1807. However, Liverpool's connections with slavery continued through cotton and other trades that were dependent on slave labour for much of the 19th century.
The International Slavery Museum explores issues linking the Americas with Liverpool using our outstanding collections of artefacts and archives."
The Bristol Museum - Bristol and the Transatlantic Slave Trade - notes that "Bristol’s participation in the slave trade stretches at least as far back as the eleventh century. Irish and English slaves were routinely sold in the port from this time until the 1100s."
"By the late 1730s Bristol had become Britain’s premier slaving port. In 1750 alone, Bristol ships transported some 8,000 of the 20,000 enslaved Africans sent that year to the British Caribbean and North America. By the latter half of the century, Bristol’s position had been overtaken by Liverpool. But even as late as 1789, the trade to Africa and the West Indies was estimated to have comprised over 80 per cent of the total value of Bristol’s trade abroad."
The old form of slavery may have been abolished in 1833 but slavery continues in the modern world and takes many forms - see What is modern slavery?
This website comments - "Modern slavery is the severe exploitation of other people for personal or commercial gain. Modern slavery is all around us, but often just out of sight. People can become entrapped making our clothes, serving our food, picking our crops, working in factories, or working in houses as cooks, cleaners or nannies.
From the outside, it can look like a normal job. But people are being controlled – they can face violence or threats, be forced into inescapable debt, or have had their passport taken away and are being threatened with deportation. Many have fallen into this oppressive trap simply because they were trying to escape poverty or insecurity, improve their lives and support their families. Now, they can’t leave."
If we are to be serious about dealing with human exploitation and its dire consequences it is crucial that these matters are addressed. Truthful dealing with the past is an essential part of that process.
The UK has the Modern Slavery Act 2015.
Materials:
David Olusoga - A House Through Time.
Discovering Bristol - Slavery
Bristol - The Society of Merchant Venturers and their statement regarding Colston.
BBC News - Pub chain and insurer apologise for slavery links
BBC2 - Britain's Forgotten Slave Owners
The Guardian - Bristol should make peace with slavery past says Colston descendant
Bristol Radical History Group - The Edward Colston corrective plaque
From Twitter
Why was #EdwardColston put up as a statue in Bristol in the first place, in 1895, over 170 years after he died? If they wanted a white businessman/philanthropist (and we'll get onto his philanthropy later), there were many other candidates. Why a slave trader?— Prof Kate Williams (@KateWilliamsme) June 10, 2020
People who say - authorities should take statues down after discussion. Yes. But it isn't happening. Bristol'sbeen debating #EdwardColston for years and wasn't getting anywhere. In 2018, it was agreed that statue would bear a plaque noting his involvement in the slave trade. BUT— Prof Kate Williams (@KateWilliamsme) June 7, 2020
*** Additional Note 28 September 2022 ***
Attorney General’s Reference No. 1 of 2022 - Courts and Tribunals Judiciary
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