Sheriff Appeal Court upholds acquittal of Glasgow students involved in university spray-paint protest

About this case:

• Citation:
  [2026] SAC (Crim) 11
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Temporary Sheriff Principal B Mohan

Two students were acquitted at trial on charges of malicious mischief libelled in connection with a protest involving the spray-painting of a university building. The Crown’s appeal against those acquittals proceeded to be heard before the Sheriff Appeal Court.

The appeal was heard by Temporary Sheriff Principal Brian Mohan, Appeal Sheriff Christopher Shead and Appeal Sheriff Ian Cruickshank, with BJ Gill KC, advocate depute, appearing for the Crown and the respondents appearing in person.

No evidence of lasting damage

In February 2025, the respondents staged a protest against the University of Glasgow’s investment in defence companies linked to the Israeli government’s military action in Gaza. Before proceeding to sit on the ground and film video content to publicise their protest, both students used a fire extinguisher to spray red, water-based paint on the glass façade of the university’s James McCune Smith learning hub.

At trial, both respondents were acquitted of common law charges of malicious mischief. Although satisfied that the building had been sprayed deliberately, the sheriff did not regard the appellants necessarily as having caused or intended to cause loss or damage to property. Although no evidence was led at trial as to how the paint was removed from the building – with Appeal Sheriff Cruickshank later questioning, “Was it by human intervention or merely a heavy shower of rain?” – there was likewise no evidence that the university had suffered patrimonial loss, nor the building any lasting damage.

After the Crown appealed both acquittals, the sheriff posed a single question to the Sheriff Appeal Court by way of stated case: namely, whether she had erred in law by acquitting the respondents “by finding that the Crown had not proved that the actions caused loss or damage to the property”. The Crown argued that the sheriff had misdirected herself by assuming that the actus reus of malicious mischief involves an act causing permanent loss or damage, and that its mens rea requires an intention to do the same; and by overestimating the significance of the lack of evidence that the university suffered quantifiable economic loss.

The respondents, by contrast, submitted that extending the definition of damage to include ‘defacement’ would significantly broaden the scope of the crime, potentially giving rise to a violation of their rights under Article 11 of the European Convention on Human Rights. Reference was made to the Attorney General’s Reference (No 1 of 2022), in which the Court of Appeal considered the human rights implications of protest-related criminal damage prosecutions following the acquittal of four protestors involved in toppling Bristol’s Edward Colston statue in 2020.

Malicious mischief fact-dependent

In a passage with which both of his colleagues agreed, Appeal Sheriff Cruickshank began his opinion by framing the scope of the appeal: “The issue for this court is whether the sheriff was entitled to acquit the respondents on the undisputed facts as presented by the Crown … As ha[s] been outlined in your Lordships’ respective opinions the question as framed for this court does not focus on the issue of mens rea although the sheriff’s conclusion was that this had not been established and could not be inferred from the respondents’ actions. The matter for the consideration of this court relates to whether there is in this case ‘loss or damage’ to the building sufficient to constitute the crime libelled.”

In a separate opinion, Appeal Sheriff Shead gave the view that the accordingly limited scope of the appeal rendered the proceedings entirely academic: “Assuming that the court answered the question in the stated case in the affirmative that would still leave the acquittal undisturbed. That is because the sheriff was not satisfied that the actions of the respondents were intended to cause loss or damage to the property of another. In other words her conclusion as regards mens rea is not challenged in the stated case … Having reflected on the question in the stated case I consider that it is unnecessary and unhelpful to answer it since even an affirmative answer would not affect the acquittal.”

Continuing nevertheless on the question of the actus reus of malicious mischief, Appeal Sheriff Cruickshank observed: “[N]one of the authorities cited to this court give any consideration as to what the necessary level or degree of damage is required to constitute the crime in the absence of their [sic] being patrimonial loss. In the present case, there was no wilful intent on the respondent’s part to cause either loss or damage, and, in fact, on one view there was no damage, dependent on how damage is to be defined … The crime of malicious mischief must be fact specific. It will depend on the facts and circumstances of each case whether there has been loss or damage sufficient to constitute the crime. Whether or not an accused committed the crime of malicious mischief would have to be viewed objectively. In the facts and circumstances of this case, viewed objectively, my view is that the sheriff was entitled to conclude the respondents did not commit the crime.”

In a dissenting opinion, Temporary Sheriff Principal Mohan gave consequentialist reasons for differing from his colleagues’ conclusions: “The finding that ‘water-based paint’ had been used as opposed to other forms of paint (presumably oil-based) is relevant to how easy or difficult it may be to clean off. It is relevant to the extent of the damage, not to its existence … The damage caused in this case may seem less real and less harmful because it was caused by two student activists who sprayed paint on a university building. But to hold that only permanent damage constitutes the crime of malicious mischief would be going too far. Temporary damage is still damage. To acquit an accused merely because water-based paint is more easily removed than other types could set an unwarranted and undesirable precedent. It might encourage anyone who engages in anti-social behaviour as part of any protest or demonstration - whether organised or spontaneous - to think that they could deface property with impunity simply by using a particular type of paint.”

With Appeal Sheriffs Shead and Cruickshank both concluding that the sheriff had not erred in acquitting the respondents, the appeal was refused.