3.2) Criminal damage - lawful excuse

Will a defendant have committed criminal damage if they have a lawful excuse?
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Will a defendant have committed criminal damage if they have a lawful excuse?
No.
What can a lawful excuse be?
- Any general defence, where relevant, can apply to any offence of criminal damage/arson under the CDA 1971 (s 5(5)); or
- S 5(2) CDA 1971 lawful excuse defences, where relevant, can apply to basic criminal damage or basic arson (but not the aggravated form of these offences, which are covered in a separate element)
What are the two lawful excuse defences in S 5(2) CDA 1971?
- Section 5(2)(a): operates where the defendant believes that the owner would have consented to the damage; and
- Section 5(2)(b): operates where the defendant acts to protect their or another's property.
Section 5(2)(a) - D believes the owner would have consented. Where is this defence dealt with?
S 5(2) and (3).
What does S 5(2)(a) state?
S 5(2)(a) operates where the defendant believes that the owner would have consented to the damage.
What does S 5(3) state?
S 5(3) says that the defendant's belief need not be reasonable. It is only necessary for it to be honestly held.
How is 'without lawful excuse' defined?
(2) 'A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse -
a) if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances; or
(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.'
What happened in Jaggard v Dickinson?
Dickinson broke a window in the drunken belief that the house was that of a friend with whom she was staying.
What was held in Jaggard v Dickinson?
- The court confirmed that the test was subjective
- Applying the CDA 1971, s 5(3), the court held that Dickinson was entitled to the defence under the CDA 1971, s 5(2)(a), irrespective of whether the belief was reasonable, even, as here, where it resulted from the defendant's intoxication
Can a D's motive be taken into account?
Provided the defendant honestly believes that the owner of the property has or would have consented to the damage to property, the D's motive for causing the damage is irrelevant to the CDA 1971, s(5)(2)(a), even where the motive is to perpetrate a fraud.
Is criminal damage an offence of dishonesty?No.What happened in R v Denton?- The owner of a factory in financial difficulties had apparently said to D: 'There is nothing like a good fire for improving the financial circumstances of a business' - D took this as an instruction to set fire to the factory, which he didWhat was held in R v Denton?His conviction for arson was quashed, the Court of Appeal holding that he was entitled to the CDA 1971, s 5(2)(a) defence.What happened in Blake v DPP?- The defendant attempted to rely on the CDA 1971, s 5(2)(a) defence using a novel argument - During a demonstration protesting about the use of military force by the allies in Iraq and Kuwait, Blake, a vicar, used a marker pen to write a Biblical quotation on a concrete pillar at the Houses of Parliament - He appealed against his conviction for criminal damage, claiming, inter alia, that he was carrying out the instructions of God - He argued that he had lawful excuse under the CDA 1971, s 5(2)(a) in that he believed God to be the one entitled to consent to the damage - He also argued that the CDA 1971, s 5(2)(b) applied as he had damaged the property to protect the property of others (the court's ruling on this issue, will be discussed later)What was held in Blake v DPP?The QBD dismissed his appeal, holding that a belief, however powerful, genuine and honestly held, that God had given consent was not a lawful excuse under the domestic law of England.Where does S 5(2)(b) operate?Where the D acts to protect their or another's property. The section relates only to the protection of property, as opposed to the protection of people.What happened in R v Baker & Wilkins?A mother could not raise the CDA 1971, s 5(2)(b) defence to a charge of criminal damage to a door that she had kicked open in order to rescue her child from a perceived threat by her estranged husband.What was held in R v Baker & Wilkins?- The court held that the child did not constitute 'property' for the purposes of the CDA 1971, s 5(2)(b) - If it had been a pet dog or cat, then the case might have been different, as these are property - For example, letting a person's pet parrot out of its cage could be criminal damage or theft of the birdWhat is meant by 'without lawful excuse'?(2) 'A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse - (b) if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed - (a) that the property right or interest was in immediate need of protection; and (b) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances. (3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.'How many requirements are there for the S 5(2)(b) defence aspects?Four.What are they?a) R v Baker & Wilkins - The defendant must act to protect property. b) Section 5(2)(b)(i) - The defendant must believe that the property was in immediate need of protection (subjective test, see s 5(3)). c) Section 5(2)(b)(ii) - The defendant must believe that the means of protection adopted are reasonable (subjective test, see s 5(3)). d) R v Hunt - The damage caused by the defendant must be (objectively) capable of protecting the property.What happened in Johnson v DPP?- Johnson, a squatter in a council house, damaged a door while attempting to fit locks in the house - Johnson was charged with criminal damage and raised the CDA 1971, section 5(2)(b) defence on the grounds that there had been a high number of thefts in the area, and that he had therefore acted to protect his propertyWhat was held in Johnson v DPP?The Queen's Bench Division upheld his conviction on the grounds that he did not believe his property was in immediate need of protection.What happened in R v Hunt?- In order to demonstrate the inadequacy of the fire alarm in a block of flats, Mr Hunt started a fire in a bedroom in a deserted part of the block - He pressed the fire alarm, which did not work - He then called the fire brigadeWhat was held in R v Hunt?- The Court of Appeal, rejecting the defence under the CDA 1971, s 5(2)(b), introduced an objective element into the defence in addition to those specifically mentioned in the Act - The court held that it was not sufficient that the accused intended to prevent further damage to property (as statutory language suggests) but also required that the act be objectively capable of protecting the property from damageWhy is the introduction of this objective test arguably inconsistent with the language used in the CDA 1971 S 5(2)(b)?Because this language indicates a subjective test.The fourth aspect of the s 5(2)(b) lawful excuse defence is that the damage caused by the accused must be what?Objectively capable of protecting the property.What else was held in Blake v DPP?- The defendant put forward the additional argument that he was entitled to rely on the CDA 1971, section 5(2)(b) because he had acted to protect property in the Gulf States - Applying the objective test from Hunt, the court held that his actions were not capable of having this effectWhat happened in R v Hill and Hall?- The accused, a nuclear protestor, was arrested outside a nuclear submarine base - She was in possession of a hacksaw blade, which she intended to use to cut through the wire fence - She was charged under the CDA 1971, s 3 (possessing anything with intent to destroy or damage property) and unsuccessfully raised the defence under the CDA 1971, s 5(2)(b) that she was acting in order to persuade the Americans to leave the base, to reduce the threat of a nuclear strike, and thus protect her propertyWhat was held in R v Hill and Hall?- The objective test in Hunt was confirmed in this case - The court held that cutting the wire was far too remote from the eventual aim of protecting property to satisfy the testWhat does S 5(5) CDA 1971 preserve?The availability of the general defences to criminal offences such as self-defence and duress. S 5(5) states: 'This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges.'