Many of us have read about the Colston 4 Crown Court trial, and the merits of the defences raised in that case. This piece examines the recent appeal by the Attorney General (AG) of that case, and specifically how it fails to clarify a crucial concept in criminal law: violence.
In January, the government was blindsided by the Colston 4 acquittal. Among other things, they were affronted at the notion of juries being instructed not to convict protesters for offences, unless the prosecution could prove such a conviction to be “proportionate” with their human rights. Johnson’s Conservative government made a policy priority of protecting monuments on two fronts: by pushing through legislation to increase punishments for defacing memorials, and by the AG asking the Court of Appeal to narrow the use of Ziegler.
In DPP v. Ziegler, protesters had (without use of force) blocked the entrance to an arms fair, and were charged under s.137 of the Highways Act 1980. In short, the Supreme Court found that the defendants had a “lawful excuse” under the statute, because their nonviolent protest engaged Articles 10 and 11 of the ECHR(European Convention on Human Rights): their rights to free expression and peaceful assembly. The rule Ziegler seemed to establish was that in protest cases, the prosecution must prove that the activists’ exercise of those rights merited interference by the state, and that prosecution would be proportionate to the disruption caused.
Now, in AG’s Reference No. 1 of 2022, the Court of Appeal has said that such a defence ought not to have been allowed for the Colston 4. Lord Burnett CJ drew from cases including DPP v Cuciurean to give a narrower interpretation of Ziegler, whereby the defence should be excluded in cases of serious criminal damage, or violence to property.
Other writers will no doubt examine the consequences for Ziegler in greater detail. Here, I want to open a different but equally important conversation, about the court’s interpretation of “violence.”
Our starting point is that the ECHR only protects peaceful assembly. Where protesters use or intend to use force against persons or property, there is no need for the state to “balance” their prosecution for relevant offences with the protesters’ Art. 10 or 11 rights: these rights fall out of the picture. But where protesters use no such force, the European Court of Human Rights (ECtHR) jurisprudence suggests that the state must balance Art. 11 interests to prosecute protester offences, even if the protest is very disruptive.[i]
It is common for this “use of force” to be called “violence” in domestic courts and the ECtHR. Lord Burnett CJ, following suit in this case, gave a dictionary definition of violence: “the exercise of physical force so as to cause injury or damage to a person, property, etc.” This step from force to violence at first glance seems uncontroversial, and fits with most people’s common understandings of both terms. To paraphrase peace theorist Johan Galtung, violence and peace do seem to be antithetical.
So, surely it is simple: what is forceful is violent; what is violent is not peaceful; and by implication, what is not violent is peaceful? You would be forgiven for thinking so. The difficulty is that English law, and liberal democratic philosophy, is terrible at defining “violence” coherently.
Fundamentally, we should interrogate the “force = violence” equation. Violence can include activity beyond applying force to other persons and their physical property. In the context of protest, violence against oneselfcan have traumatic and world-changing consequences, as Olivier Grojean’s examination of Kurdish self-immolating activists demonstrates.[ii] Violence against data is also a growing concern. As Aaron Brantlyargues, hacktivists have the ability to hold truth to power, but terrorist organisations can cause unprecedented damage through code alone. In an Arendtian sense, both these forms of violence still have the destructive or coercive capacity to alter or diminish the power of collective action within society. If this is the “evil” of violence, we should look beyond traditional definitions based solely on use of force to others.
In this case, Lord Burnett CJ did say, obiter, that nonforceful acts might also fall outside of Art 11 peaceful assembly. However, he did so in a way that lacks justificatory rigour, and may lower protections to nonviolent protesters. His Lordship claimed that nonforceful actions might still be unpeaceful: “it is not difficult to envisage a demonstration at which no violence to the person or property occurs, but which could not be characterised as peaceful, not least if it is intimidatory or causes alarm or distress.” If so, violence (that is, using force) is a sufficient but not necessary condition to remove one’s Art. 11 rights altogether. Nonforceful acts can violate a state of peace.
In reality, however, this is an unjustifiably overinclusive conception of “unpeaceful” protest that goes beyond the defined examples of violence to the self or to data, mentioned above. It encompasses alarming and distressing protest, which is not excluded under Art. 10 and Art. 11.[iii] The state can prosecute criminal activity in such protests, of course, but in doing so must balance these rights against the public interest. However, it does not, and should not, fall outside of Art. 11 protections altogether. Perhaps accidentally, his Lordship is seeking to pre-empt the limitations on the “force = violence” equation: not wanting to give carte blanche to intimidatory tactics which do not involve the threat of use of force, for example. But prosecution for such protests should be dependent on a balancing of rights and interests. By calling alarming protests “not peaceful,” without deeper analysis of why such action is not violent, yet not peaceful, we lose protections afforded by Art. 11 without clear justification.
Aside from this, we should also question the “force = violence” equation in that not all application of force to persons or their property can rightly be called violence, nor should be treated as such. For one thing, does only a small use of force really amount to “violence?” Despite the simplistic dictionary definition, which makes no reference to magnitude of force, his Lordship does concede that incidental or temporary property damage need not entail violence, nor threaten peacefulness. This is important given the wide scope of what amounts to “damage” under s.1. of the Criminal Damage Act 1971. This even includes marking a wall with chalk that would be expunged by the next rain.[iv] Such small damage under the Act is clearly not “violent.” If this graffiti occurred during a protest, the intentional force of applying chalk to concrete in this “criminal damage” would clearly fall below what amounts to “violence,” and to “unpeaceful” protest. Lord Burnett CJ rightly says that such cases of “minor or temporary” damage under s.1 would require Ziegler proportionality review for conviction, but not cases where damage which is more serious.
We might also decouple “force” from “violence” not just based on magnitude of force, but whether the force is justified, morally or legally. Raymond Williams argued that no one definition of “violence” exists, but it necessarily entails violation, unruliness, and transgression. The Colston 4 were acquitted, and therefore violated no law: yet the Court of Appeal was adamant that their actions were self-evidently “violent.” It is possible to describe their actions as both lawful and violent, of course: illegality need not be a defining component of violence. For example, consensual boxing might be called violent, and yet still be lawful.
But even if we accept this as “violence,” should lawful and justified use of force be considered so violent, or violating, that it should be deemed “not peaceful,” and so automatically lose Art. 11 protections altogether? Let us imagine a protester who lawfully uses self-defence against a counter-protester, or other assailant, during a protest. If her violence is itself subject to lawful excuse – as self-defence is, under rules codified under s.76 of the Criminal Justice and Immigration Act 2008 – then there should be no reason to remove ECHR protections for its exercise during protest. That lawful use of force would still be entirely in keeping with the principles of a peaceful and democratic society, which the Convention seeks to preserve. The Colston 4 did raise defences of lawful excuse for their use of force, including that they were removing a criminally obscene image, or acting with the consent of the people of Bristol. Inasmuch as either defence applied, their violence would be lawful, and in keeping with peaceful, democratic society. Yet it would still constitute “violence” per Lord Burnett’s definition, and automatically fall beyond the aegis of Art. 11.
If we decouple what is “violent” from what is “violating,” in this way, we lose sight of that aspect of violence which is aberrant to society. Justified force is entirely in keeping with liberal democratic life: indeed the Weberian conception of the nation state depends upon lawful use of force. It is the violating use of force that must be kept in check.
Finally, his Lordship further complicates matters by remarking that even peaceful damage from protest could fall outside of Art. 11: “If significant damage were caused, even if “peacefully”, it would not even be arguably disproportionate to prosecute and convict for criminal damage.” His Lordship continues: “It is, at least in theory, possible to cause significant financial damage to property without being violent. Smashing something with a hammer would be violent but it would be possible to cause as much financial damage to many objects by quiet and calm action.” This are unfortunate obiter dicta, for two chief reasons.
First, what does peaceful, nonviolent, significant, criminal damage during a protest look like? It is possible that, for example, the deletion of valuable data might meet these criteria: as in the case of R v. Whiteley, which his Lordship cites in his judgement.[v] Perhaps his Lordship is accidentally incorporating Brantly’s theory of “violence against data” into his analysis of protest violence. Yet it is difficult to think of damage to tangibleproperty, in the course of ordinary protest, that could not be called “violent” per se: particularly as the current case defines violence broadly as the “use of force,” without qualification on the intensity or scope of that force.
Secondly, it is regrettable because Art. 11 protects “peaceful” assembly. It does not qualify this against significant economic loss: indeed most protest entails the loss or redirection of state resources. Prosecutions against peaceful protesters must be subject to proportionality review, under Ziegler, and economic losses might then factor in balancing protester and public interests accordingly. Whatever peaceful property damage in protest means, if we are to meet our international obligations, it must fall under Art. 11 by definition.
This short blog post could not even begin to unpick our definitions of force, violence, and peace: they are uncomfortably stitched together in political theory, and then in turn, grafted clumsily into law. This is merely to open a conversation on the difficulties of defining violence in protest. In The Force of Nonviolence, Judith Butler say that we must “accept the difficulty of finding and securing the definition of violence when it is subject to instrumental definitions that serve political interests and sometimes state violence itself.”[vi] The state jealously guards these definitions, through its laws and its courts. We should be wary of any decision which, by exploiting these mercurial definitions of violence, seeks to limit protections for protesters – particularly if it removes their protections under Art. 11 entirely.
[i] Kudrevičius v. Lithuania (2016) 62 EHRR .
[ii] Grojean, O. (2012a). “Violence Against Oneself,” in The Blackwell Encyclopedia of Social and Political Movements edited by Snow, D.A., della Porta, D., Klandermans, B. and McAdam, D. Oxford: Blackwell.
[iii] Animal Defenders International v. United Kingdom (2013) 57 EHRR 21; Handyside v UK  12 WLUK 53 ECHR
[iv] Hardman v. Chief Constable of Avon and Somerset  Crim LR 330
[v]  93 Cr. App. R 25, 29
[vi] Butler, J.P. (2020) The Force of Non-Violence. London: Verso: p.7