Suella Braverman deals in gesture politics – as her Colston tweet shows

With Braverman, it seems that whatever lip service she pays to the integrity of the courts is always followed by a ‘but’ or a ‘however,’ writes Sean O’Grady

The attorney general, Suella Braverman used Twitter to voice her opinion on the verdict (PA Wire)

It’s fair to say that a routine charge of criminal damage being tried at Bristol crown court wouldn’t usually attract the attention of the attorney general, still less a potential referral to the court of appeal, and still less than that an apparent attempt to undermine the jury system by tweet.

The case of the “Colston Four”, though, has prompted the attorney general for England and Wales, Suella Braverman, to take to social media to declare: “Trial by jury is an important guardian of liberty & must not be undermined. However, the decision in the Colston statue case is causing confusion…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.”

Arguably, the most damaging “confusion” is to be found among those Conservative politicians who pay lip service to the sanctity of the rule of law before questioning the verdict in cases which they find politically offensive, rather as Braverman seems to have done. In any case the acquittal cannot be reversed on ministerial orders, and the move is perhaps “performative”, primarily aimed at appeasing the more excitable elements in her own party. But such rightist virtue-signalling by a senior law official has the potential to be damaging to the independence of the judicial system. A more responsible reaction came from the Avon and Somerset Police: “Having been presented with the evidence, a jury has now determined their actions were not criminal and we respect its decision.”

We will have to see what the “senior judges” make of the Colston case – if it goes that far – but they cannot direct future juries in future unknown statue-topplings to convict the accused. Braverman’s move is pure gesture politics.

The senior judges might actually do worse than tell Braverman that sometimes juries do crazy things, unwelcome things and unpopular things (in some quarters), but that’s the whole point of trial by jury. They are one of our ancient safeguards against arbitrary laws and a tyrannical executive. We could dispense with juries and instead try everyone by magistrates and judges, but that too has its obvious drawbacks. Or we could, in the modern way, use an algorithm to weigh evidence, make allowances in mitigation and issue precise calculations of degrees of guilt and degrees of punishment – abandoning the crude binary distinction between guilt and innocence.

Juries represent one of the flexes in the system, and they are free to find folk guilty or not guilty as they wish under conventions that date back many centuries. Bad laws and weak prosecution cases can be addressed by trial by jury. They are a protection against persecution. As Tony Hancock once asked, playing a foreman of the jury in a sitcom long ago: “Does Magna Carta mean nothing to you? Did she die in vain?”

Another prime example of misunderstanding is provided by Tom Hunt, Conservative MP for Ipswich, who has also objected to the Colston verdict: “I believe the verdict of the jury sets a dangerous precedent and could essentially lead to political activists ransacking statues up and down the country with impunity, regardless of what the majority think.”

Of course in legal terms one verdict in one particular set of circumstances in one lower court cannot set such a binding precedent and in effect re-make the law.

Hunt, though, is not the government’s principal legal adviser and does not oversee the Crown Prosecution Service (CPS); Braverman does, and this is not the first time a tweet from her has caused some raised eyebrows. In the summer of 2020, inexplicably, she commented on Dominic Cummings alleged breach of the laws on Covid lockdown. While the police investigation was still live, on 23 May, Braverman responded to a Downing Street statement saying, “Mr Cummings believes he behaved reasonably and legally”, in these supportive terms: “Protecting one’s family is what any good parent does,” the attorney general wrote. “The @10DowningStreet statement clarifies the situation and it is wholly inappropriate to politicise it.”

Ms Braverman said she did not regret the tweet when later questioned during her first appearance before the Justice Committee on Tuesday. “I think it’s clear for anyone to see that I didn’t offer any legal view,” she told MPs. “I don’t think a tweet of some 10 words can really be described as a legal opinion.” But what else is a publicly issued opinion about the application of the law made by the attorney general but a legal opinion? There’s no statute or case law laying down a minimum “word count” for an attorney general, and to me her meaning was clear and ill-judged.

When Braverman was promoted to replace Geoffrey Cox as attorney general in February 2020 it was assumed she would be more sympathetic to the prime minister and his wishes. Braverman polished her Johnsonite populist credentials soon after her appointment she apparently confirmed this by writing a trenchant article for ConservativeHome, in which she openly attacked the way the judiciary was doing its job: “Yes, courts should operate to curb abuse of power by government but if a small number of unelected, unaccountable judges continue to determine wider public policy, putting them at odds with elected decision-makers, our democracy cannot be said to be representative”.

With Braverman, it seems that whatever lip service she pays to the integrity of the courts is always followed by a “but” or a “however”. She seems not to accept that the independence of a court of law from political intervention - post hoc or through merely opining on events - is not compatible with the way she is discharging her responsibilities.