Attacking statues in the moral maze

T, Belman. This is an issue for Americans to ponder what with all the destruction of statutes in the US for the last couple of years. Should political activists otherwise known as vandals, be permitted to tear down statues they deem offensive. In other words, who gets to decide if statutes stay or not?

…or, as it turned out, just outside

By Melanie Phillips

Man damaging Eric Gill statue of Prospero and Ariel at BBC Broadcasting House, January 12 2022

On BBC Radio’s Moral Maze this week, we tackled the issues behind the acquittal of the “Colston Four” last week. The four defendants were cleared by a Bristol jury of causing criminal damage in June 2020 when they toppled a statue of the 17th century slave-trader and Bristol philanthropist, Edward Colston, which was then thrown into the river.

The four had argued that they were “on the right side of history” by protesting against slavery and colonialism, and that they had committed no criminal offence because the existence of the statue was itself an offence (sic).

The jury found in their favour, for reasons which in the English legal system always remain undisclosed.  Others, however — including the former Justice Secretary, Sir Robert Buckland QC — maintain that the jury’s verdict was “perverse” because it flew in the face of the evidence and sent a message that vandalism is acceptable if it is seen to be “direct action” in support of a cause that anyone seeks to justify.

My fellow panellists were Mona Siddiqui, Ash Sarkar and Tim Stanley. Our witnesses were Jeremy Black, professor of history at Exeter university; Jen Reid, a Black Lives Matter activist in Bristol; Steven Barrett, a barrister and legal commentator for the Spectator;  and Kirsty Brimelow QC, vice-chair of the Criminal Bar Association.

I asked Jen Reid whether, in the light of this verdict, people would feel justified in tearing down statues of people such as Christabel Pankhurst, the suffragette leader who was subsequently jailed for pro-Nazi sympathies during World War Two; or Edward I, who expelled the Jews from England in the 13th century.

In a striking irony, between the recording of the programme at BBC Broadcasting House during the afternoon and its transmission that evening, there was indeed a similar incident of “direct action” against another statue — this time at Broadcasting House itself.

A protester climbed up above the entrance and started using a hammer to damage the statue there of Shakespeare’s Prospero and Ariel, which has been an integral part of the Grade II*-listed building since 1933. This was apparently in protest at the fact that the sculptor, Eric Gill, was a paedophile. Although the police were called to the scene, the man was reportedly allowed to continue chipping away at the statue for two hours.

I asked Kirsty Brimelow about the desirability or otherwise, in the light of the Colston Four acquittal, of so-called “perverse” jury verdicts — commonly understood to be verdicts which fly in the face of the evidence presented in court.

I referred to the observation by the former Law Lord and legal philosopher Lord Devlin who — as I wrote in my Times column (£) this week — said a jury had a right to be perverse as part of its role in safeguarding society against oppression. “If it’s asked to enforce law which it really feels is against its conscience, it says no and it acquits,” he said. “And that’s to my mind our proudest constitutional achievement”.

I stated:

Just to make clear, I’m certainly not suggesting that the jury returned a verdict which was in any way against the law, or against the judge’s direction. What’s so troubling to some people is that the law seems to have got to a stage where the exercise of people’s conscience can actually justify the causing of harm to others. That can’t be right, surely, as a matter of principle?

In her replies, Brimelow rejected the suggestion that the Colston verdict was “perverse” if, she said, we “understand a perverse verdict to be outside a legal framework”. She added: “There’s no evidence that this is a matter of conscience. The evidence is that the law is applied”.

This seemed to me totally to misunderstand the point I was making. So in the panellists’ discussion at the end of the programme, I clarified my argument still further. I said it was a liberal principle that the exercise of someone’s rights could not justify causing harm to others. I went on:

And what I found very perplexing in Kirsty Brimelow’s remarks was that she seemed not to understand, or certainly didn’t agree, that the verdict in this case was what was called a “perverse” verdict. She didn’t understand or agree that the idea of a “perverse” verdict is the exercise of conscience. Conscience is simply a matter of what people think is right right or wrong.

The jury in the Colston case, I said, certainly was acting within the law in finding the defendants not guilty of criminal damage. That’s because the law of criminal damage makes provision for certain characteristics which can be held to justify such “direct action” if the jury finds that these conditions were met. I went on:

But those characteristics are all justifications which depend on a viewpoint, which was not supported by the evidence. Therefore [the jurors] could return a verdict which flies in the face of the evidence, which is a “perverse” verdict.

And the point about their individual viewpoint — which is based on conscience, their idea of right and wrong — is to do with this idea that people passionately believe, as we’ve heard on this show, [in] the cause of anti-racism, the cause of anti-slavery.

I don’t disagree or disapprove of those causes at all. But the issue is that these are subjective causes which are combated and divisive and don’t have the agreement of  everybody; they are subjective. And the idea that you can cause harm to others because you believe in a cause that is right seems to me, if it’s legally approved of, the route to anarchy.

Today, Kirsty Brimelow tweeted:

Kirsty Brimelow QC @Kirsty_Brimelow<
>
@fred_mackintosh @MelanieLatest It was unfortunate that @MelanieLatest could criticise my knowledge at the end when she was the one who doesn’t understand that it’s not a perverse verdict if the defences were left to jury (meaning there is evidence in support);verdict is within legal framework. @MichaelBuerk

January 13th 2022
and then later in a further tweet:

Kirsty Brimelow QC @Kirsty_Brimelow
@fred_mackintosh @MelanieLatest It was unfortunate that @MelanieLatest could criticise my knowledge at the end when she was the one who doesn’t understand that it’s not a perverse verdict if the defences were left to jury (meaning there is evidence in support);verdict is within legal framework. @MichaelBuerk