Prof Tom Lewis, NLS https://www.ntu.ac.uk/staff-profiles/law/thomas-lewis
On 8th February the Security Minister, Tom Tugendhat MP, announced a series of proposed changes to public order law to be introduced as amendments in the new Criminal Justice Bill. As a response to recent protests over the environment and the ongoing war in Gaza they include restrictions on the use of the defence of reasonableness in public order offences and on the use of face-coverings during protests. But they also propose a new specific criminal offence of ‘climbing on a war memorial’, punishable by up to 3 months in prison and a £1000 fine. In the House of Commons Tugendhat said:
“In recent months, we have seen cases where individuals have broken away from large protests and scaled national monuments. War memorials belong to all of us. They are the altars of our national grief, and it is clearly not acceptable to disrespect them in that way; it is an assault on the memory of so many who gave their life for our freedom and to defend our nation. Attacking our national memorials goes beyond the legitimate exercise of free speech.”
This move is apparently a response to recent protests relating to Gaza on 15 November, at which protestors climbed on the Royal Artillery Memorial at Hyde Park Corner. The Metropolitan Police Commissioner, Mark Rowley, said that the actions may have been ‘inflammatory’ but that it was ‘not illegal to climb on a statute’. He added, ‘the officers at the scene asked them to get down and they did’.
Questions of memory and memorialisation – the ways in which we remember the past through physical symbols in our public spaces – have, perhaps surprisingly, been at the front-line in the so-called ‘culture wars’ that have beset the UK in recent years. Our ‘mnemonic environment’ is important. It goes to our sense of identity and belonging, of nationhood and community, and the ‘glue’ that binds us together.
One manifestation of the current angst over memorialisation has been in relation to long standing monuments to those whose actions – once considered to be worthy of commemoration – are now considered by many to be reprehensible, such as the statues of Bristol slave trader Edward Colston or the colonialist Cecil Rhodes. The issue of what to do with such statues has been the topic of well documented controversy with the government recently issuing new planning guidelines for England saying that we should not hide from our history and should not remove such statutes other than in the most extreme circumstances – rather we should ‘retain and explain’ them.
But war memorials raise different kinds of memory issues which relate not to a supposed ‘hiding from history’ but rather to the supposed appropriate level of respect that we should accord to the memory of those who fought and died in the country’s wars. Its apparent motivation is to protect the memory and dignity of those people, as well as the feelings of the living who are insulted by these actions today. They are clearly not aimed at the prevention of physical damage to the memorials in question since, if actual damage is caused to a war memorial, then the statutory offence of criminal damage could be charged. Moreover, they are presumably not aimed at the prevention of violence, for if the climbing were to lead to actual or reasonably apprehended immediate violence then the police could use their common law powers in relation to breach of the peace and make arrests, subsequent to which the climbers could potentially be bound over by a magistrate to keep the peace and be of good behaviour.
Previously, in some circumstances the common law offence of outraging public decency has been used in relation to war memorials, specifically in cases of individuals urinating on them. The Law Commission in 2010 explained outraging public decency as consisting ‘of performing any indecent activity in such a way that more than one member of the public may witness and be disgusted by it’. Climbing on war memorials does not, apparently, reach this threshold, or perhaps the offence caused is of the wrong type to constitute an outrage to public decency.
If there is no damage and no risk of provoking violence, and the conduct is not so indecent as to constitute an outrage to public decency, then the criminalisation of mere climbing must be intended to protect the memory of the fallen from insult, and the consequent feelings of offense amongst the living to which this conduct may give rise. The question arises then: is the protection of memory and the prevention of offense a sufficient justification to impose a criminal liability on otherwise harmless conduct?
Expressive conduct – which might in some, but not all, circumstances include climbing on a war memorial – falls within the ambit of the right to freedom of expression under Article 10 of the European Convention on Human Rights, part of UK law by virtue of the Human Rights Act 1998. In its case law, however, the European Court of Human Rights has accepted that protecting memory from deep insult may constitute a legitimate reason to interfere with freedom of expression. Thus, for example, in Sinkova v Ukraine an environmental protestor used a frying pan to cook eggs over the Eternal Flame at the Tomb of the Unknown Soldier in Kiyv. She claimed that her arrest and conviction for desecration – she received a suspended sentence – violated her Article 10 rights. The European Court however held that the criminal sanction was legitimate, and constituted a proportionate measure to protect the memory of those who had died in the war:
‘ … eternal flames are a long-standing tradition in many cultures and religions most often aimed at commemorating a person or event of national significance, or serving as a symbol of an enduring nature. The one on which the applicant fried eggs is part of a monument commemorating soldiers who gave their lives defending their and the applicant’s country during the Second World War. There were many suitable opportunities for the applicant to express her views or participate in genuine protests … without breaking the criminal law and without insulting the memory of soldiers who perished and the feelings of veterans …’
Having said this, the European Court has also found that a long prison sentence (13 years) for insulting the memory of the founding father of the Turkish Republic, Kemal Atatürk, by pouring red paint on his statute did violate Article 10. The Court said that even though there had been a ‘physical attack on property’ this could not justify such a severe punishment which could not be considered a proportionate limitation on Article 10 rights.
Having regard to this Strasbourg case law it will be arguable that the ‘climbing on war memorials’ offence, if enacted, could pursue the legitimate aim of preventing insult to the memory of the fallen and the prevention of offense to the living. And if the penalties imposed are not unduly harsh, it may be compatible with Article 10 in terms of its proportionality.
The question however remains: just because this new offence might be compliant with human rights standards as adjudicated by the European Court of Human Rights in Strasbourg, does this necessarily mean that it is wise to create a new criminal offence for non-violent, non- destructive, non-indecent behaviour that may, in certain circumstances constitute a form of political expression? Is the sanctity of the memory of the fallen sufficient justification for such a measure? Perhaps it is. In any event it is a question that must ultimately and appropriately be decided by the democratically elected and accountable parliament.
But memory is an extremely slippery phenomenon for the law to get to grips with. If this measure is enacted difficult questions of interpretation will no-doubt arise. For example, what constitutes a war memorial? Would it include memorials to those who fought in conflicts prior to World War I, for example, the Boer War or the Crimean War? Would it include monuments to military commanders such as the Duke of Wellington, or Oliver Cromwell, or ‘Bomber Harris’? Would Nelson’s Column with its frieze of the Battle of Trafalgar count? Would it be a crime to climb on the famous lions at its base? Is the offence to be restricted to ‘hostile’ or ‘disrespectful’ climbing – so as to avoid totally innocent physical interactions with such public art – and, if so, how is this to be defined? Should there be some kind of ‘expiry date’ after which memories are considered to have sufficiently faded so as not to cause offence today? These and other problematic questions will no-doubt have to be answered by the courts, should the offence ultimately be enacted, for such will be the consequence of legislating on a matter as difficult and un-pin-down-able as memory.
Further Reading
In relation to breach of the peace see e.g., R (o/a Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55
On the concept of collective memory see e.g., JK Olick, Verad Vinitzky-Seroussi and Daniel Levy, The Collective Memory Reader (OUP, 2011)
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