The truth about statues and the law

There is a proposal to change how we criminalise people who damage statues. This proposed change is set out in the Police, Crime, Sentencing and Court Bill and has received much criticism — it is the supposed cause of last night’s protests in Bristol, the first place in the UK to see a prominent statue being toppled last summer.

But it is not for lawyers to tell the public what they can or should think — the law is the law, but any changes to it are political decisions. Lawyers can elucidate how our regulations currently work but it is for the public and their politicians to decide what those regulations are. So it is worth looking at how the law treats those who deface public monuments and that, perhaps, can inform whether we think the regulations need changing.

Damaging property that does not belong to you is a crime. Damaging a statue is one type of crime. That crime is called criminal damage. All crimes have an inbuilt feature: the punishment differs based on how severe the crime is. Steal a penny from the floor? Well, that will be treated less severely than stealing the Mona Lisa.

The crime of criminal damage has its own concept of severity. It ties severity directly to how much something costs. Damage the Mona Lisa, you’ll find life tricky. Doodle on someone else’s notepad and things may be less tricky. What matters is the cost.

This is the issue. For 800 years we’ve actually been a pretty hard-nosed lot. Napoleon called us a nation of shopkeepers. He meant to criticise us because we cared more about the cash than anything emotional. And law moves very slowly — so largely, we still only care about cost.

Now that, whether for good or ill, has clearly changed in the nation. The new law on statues looks to me to be a part of that broad development — we do emotion now. The issues around dog theft are another, linked issue. We linked our criminal law directly to cost. But cost is not value.

I love my pet. If you run her over, things won’t be made right by simply giving me the cash to buy a replacement. But for hundreds of years our laws pretended it would be. We are a bit of an outlier here. Most other legal systems tri to address this discrepancy between cost and value.

The ancient Romans identified this problem. They would deem some property to be Res Religiosae, religious property. That means in simple terms the law saying: ‘yes I realise that what you destroyed will cost tuppence to replace, but it was important for other reasons’.

The counter argument that the law already covers damage to statues misses this point. It is also quite normal for our law to have multiple criminal offences to cover a single criminal action. We’re a bit belt and bracers when it comes to crime. If you only have one offence, you risk the criminal getting off. Better to have multiple.

Nor I think is it much use to argue against the new law by saying this will happen rarely. In 2003 Lord Blunkett made necrophilia illegal. We hadn’t felt the need to do that in the preceding 800 years. It’s not, I think, been found to be an endemic problem since. But there it is.

No, the nub of the issue is this: if a person damages a statue today, how they are treated depends on the cost of the statue they damage. But many statues, much like pets, have a value beyond their cost. The new law tries to close that gap.

The test case is not someone knocking the nose off Nelson. That statue has a very high cost. The test will be a statue of very low cost, but very high value and there are more of those than you think.

Where you stand on the broader issue though is not for me, because it is still a political choice to change this law. What I think is unhelpful is for lawyers who want to publicly state their political choices to imply or suggest their status as a lawyer matters more on this choice. When lawyers talk about law, by all means treat us as experts. When we publicly express political views, we can only ever be equals.