12:52, June 15 165 0 theguardian.com

2020-06-15 12:52:03
The UK government responded to Black Lives Matter – by protecting statues

The government’s response to the protests of the past week followed a predictable pattern. Step 1: A flurry of headlines promising: “Violent protesters face jail within 24 hours”, optimism unencumbered by any understanding of the law, procedural fairness or how Covid-19-struck criminal courts are operating in practice. Step 2: Announce longer prison sentences for something.

That something is apparently low-value criminal damage of war memorials, which, according to 125 Conservative MPs, is not being punished severely enough. So it was that backbench demands for a new offence carrying a maximum sentence of 10 years’ custody filled the Sunday press, with MPs vowing not to “stand idly by as our democracy is dismantled in this way”.

Seemingly sympathetic to the proposition that spray-painting a statue portends the dismantling of democracy, the government has thrown its weight behind the proposals, with the home secretary, attorney general and justice secretary all said to be supportive. What came as perhaps more of a surprise was the opposition joining the chorus. No doubt wary of falling into a populist-shaped elephant trap, the new shadow home secretary, Nick Thomas-Symonds, hitched Labour’s wagon to this nonsense, telling Sky News that he would “support the government in creating a new specific offence of protecting war memorials”.

The notion that a “new specific offence” is required to prohibit damaging war memorials betrays fundamental misunderstandings of what the law currently says. The Criminal Damage Act 1971 provides a maximum sentence of 10 years’ custody for the offence of criminal damage, and applies to all property, including statues and war memorials. Where a statue is a listed building, a further offence, carrying a maximum sentence of two years, is available under section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

What upsets the campaigners is that where the value of criminal damage is under £5,000, it is treated as a summary-only offence (triable only at the magistrates’ courts) and carries a maximum sentence of three months. So where an unlisted memorial is defaced but the remedial cost is low – say removing spray paint – a lengthy spell behind bars is unlikely to follow.

The “solution”, we are told, is either to amend the Criminal Damage Act or to pass new legislation – the desecration of war memorials bill – allowing the maximum of 10 years to apply, irrespective of the value of the damage (and, in the case of the new bill, there need not even be any damage caused). In their fervour, few of the protagonists seem to have realised that the proposed narrow definition of “war memorial” would exclude most of the statues and monuments that have captured recent headlines – neither Colston’s nor Churchill’s statue, nor the memorial to PC Keith Palmer, would qualify for protection, for instance. Nor has it occurred to them that most acts of damage or disrespect to monuments are caused in the context of wider, more serious offending, for which lengthy custodial sentences are already available.

But even more troubling is what such an escalation in sentencing powers would represent. While in practice the maximum of 10 years would rarely, if ever, be imposed, the new cross-party consensus appears to be that displaying disrespect – not even quantifiable damage – to an inanimate object is worthy of a higher maximum sentence than inflicting grievous bodily harm, violent disorder, affray, theft, carrying knives, acid or offensive weapons, voyeurism, upskirting and causing death by careless driving, to name but a few offences that cause tangible harm to real people. It would inject criminal sentencing, which already suffers from wild incoherence and inconsistency between offence types, with another dose of gratuitous disproportionality.

What disappoints most is that the criminal justice system is in desperate need of unified political attention. The system, already on its knees pre-Covid-19, is in tatters. The backlog of cases in the crown courts has soared above 40,000 due to year after year of cuts to court sitting days. A lack of police and CPS resources means that it typically takes over a year to charge many cases, with victims, witnesses and the accused then subjected to a further wait of at least a year for a crown court trial date.

Publicly funded lawyers, starved of government financial assistance, are going to the wall. We still have Chris Grayling’s “innocence tax”, whereby the government refuses you legal aid and, when you are acquitted, refuses to fully reimburse your legal fees, leaving you thousands of pounds out of pocket for having been wrongly accused. And, bringing the conversation back to where attention should rightly be focused at this time, the 35 recommendations in the 2017 Lammy review into the treatment of BAME individuals in the criminal justice system are, three years on, yet to be implemented.

Yet somehow, our elected representatives have surveyed the wreckage of the criminal justice system, and considered the burning social injustices dragged into the spotlight by the BLM protests, and have concluded that the priority – the first piece of bipartisan criminal legislation they should pass – is one seeking to protect the feelings of concrete. Our country deserves better.

The writer is a junior barrister who writes anonymously about the English and Welsh legal system, and is the author of The Secret Barrister: Stories of the Law and How It’s Broken



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