What Does It Mean When The Attorney General Refers A Case To The Court Of Appeal: The Case Of The Colston Topplers
The principal role of the Attorney General is to uphold and promote the Rule of Law through his or her constitutional functions. In short, they are instated to restrict the arbitrary exercise of power through the laws and constitutional framework that they protect.
The Attorney General holds various functions and powers, with a common feature that they are exceptional and direct interventions in the functioning of the justice system, in the interests of supporting the system itself, and maintaining public confidence in the administration of justice (A-G Jeremy Wight QC MP, 2016).
One such function is where a defendant or defendants have been tried in the Crown Court and acquitted, the Attorney General has the discretion to seek the opinion of the Court of Appeal under section 36(1) Criminal Justice Act 1972. This does not affect the acquittal of the defendant, but allows the higher court to provide its opinion on any point of law that arose in the case. This opinion will then be influential in future cases with similar issues.
Colston 4 Trial
On 5th January 2022 four defendants, two of whom were represented by Raj Chada and Laura O’Brien of Hodge Jones & Allen, were acquitted of criminal damage for removing a statue of slave trader Edward Colston in Bristol in the aftermath of George Floyd’s murder in June 2020.
Following this historic result, which faced disappointing criticism from Conservative political players, the current Attorney General Suella Braverman stated “Without affecting the result of this case, as Attorney General, I am able to refer matters to the court of appeal so that senior judges have the opportunity to clarify the law for future cases. I am carefully considering whether to do so.”
This comment can appear at odds with the fact, highlighted by Raj Chada in a Channel 4 interview following the case, that “there is no legal precedent created by this case, it very much turns on its own facts and on what the jury heard”. Cases heard in Crown Courts cannot set legal precedents for future cases. Furthermore, this particular case was successful largely on the basis of its unique facts and context; the history of attempts to have the statue removed democratically, and the racist history of Edward Colston which was highlighted by Black Lives Matter protests and brought renewed public attention to the movement.
Many of the principles used in the Colston case have been used as defences in other protest related cases (such as right to free speech or prevention of crime) and it would be irrational for this case to be referred because it appears Conservative politicians were unhappy with the result. Indeed, the higher courts, including the Supreme Court and Court of Appeal have already ruled on such principles in a number of cases.
The crux of this controversial case has become whether the unique power of referral, which has been used twenty times since 2000, is being used in this instance to uphold the rule of law as intended. It is an absolute right of a jury to acquit, which has been exercised in the past for protesters against both climate change and military action, even where defendants have admitted to the offences with which they are charged.
It is important that powers of the Attorney General are exercised in a fair and proper way – not in a response to pressure from media and political commentators. That calls into questions the very essence of the power itself and amounts to political interference in the criminal justice system.
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