Criminal Damage Defence Guidance Handed Down by Court of Appeal
Judgment was handed down in the matter of an AG Reference that considered the interpretation of a possible defence to criminal damage by protesters.[1] The AG contended that the issue had been dealt with inconsistently by the lower courts, and was therefore seeking guidance from the Court of Appeal regarding its proper application.[2]
What could have been an opportunity for the Court of Appeal to clarify the law has instead resulted in a judgment that obfuscates and confuses more than it reveals. But first, what was the Reference regarding?
S. 5(2)(a) of the Criminal Damage Act 1971 states:
(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;
Further Section 5(3) states: it is immaterial whether a belief is justified or not if it is honestly held.
In short, if D honestly believes that the owner would have consented to the destruction of their property had they known of its circumstances, then the defence applies.
The Submissions
The AG Reference largely turned on the interpretation of ‘and its circumstances’ in s.5(2)(a). The AG submitted that a reliance on the defence by protesters could not have been envisaged by Parliament when the 1971 Act was passed and that the merits or importance of a protest were not directly connected to the damage, and therefore could not be included in ‘its circumstances’.[3]
Counsel for C however submitted that what constituted ‘circumstances’ was a matter of fact that should not be restricted in the ways proposed by the AG, as the arguments that spurred C on to cause damage would be relevant to their honest belief in the owner’s consent.[4] They further argued that restricting the interpretation of ‘circumstances’ would artificially limit the availability of the defence to a subcategory of cases – i.e. for protesters.[5]
The Judgement
In passing judgment on the issue, the Court has attempted to tread a line between the two arguments that is difficult to reconcile into a logical whole. Firstly, it construed the ‘its’ in ‘its circumstances’ as a possessive pronoun, therefore delimiting the ‘circumstances’ to that which are ‘relevant’ to the damage.[6] It then listed a series of examples of what may be considered ‘relevant’ – the time, place, and the extent of the damage caused.[7] However, none of these issues consider why the damage was caused. If the only facts that the defendant is able to rely on to establish an honest belief is information such as what was damaged, where it was, and when, then nobody is likely to ever establish an honest belief in consent to property being damaged. What is relevant is surely a question of fact that will be specific to each case, rather than a series of information points relating to a ‘relevance list’ set out by the courts. The Court further stated that the circumstances do not include the political or philosophical beliefs of the person causing the damage,[8] even though it is exactly those beliefs that can lead to a person holding an honest belief that the owner would consent to the damage.
The Court then explores an example – of a child trapped in a car on a hot day requiring someone to break a window to get them out.[9] As examples of what is relevant as circumstances it listed – the need for speedy action, the importance (merits!) of rescuing the child, and the relative unimportance of the damage to the vehicle.[10] All these points could arguably apply to action taken as a result of a belief in the catastrophic effects of climate change. Speedy action is required, it is important to rescue our climate, and the damage to the property is likely to be unimportant relative to the destruction of entire habitats. Therefore, whilst the Court initially attempted to de-limit the boundaries of ‘circumstances’, it appears to then undermine its own argument in the example it gave.
One might argue that the damage caused in the example was sufficiently proximate to what it was attempting to achieve, and that on this basis it is differentiated from damage caused by protesters. But what if protesters damage property that is directly funding fossil fuels, or fossil fuel producers / suppliers / transporters? Would that then be sufficiently proximate?
Proximity and Possessiveness
It is in the Courts next argument that its logic begins to show greater cracks. It states that the circumstances must belong to the damage, and not to the defendant.[11] This follows from its assertion that ‘its’ was a possessive pronoun that directly related the ‘circumstances’ to the ‘damage’, and not the defendant. It draws parallels with Hill and Hall,[12] in which the circumstances cannot be so remote from the damage as to no longer be ‘part of the damage’, and that there must be a ‘sufficient connection’ between the damage and its circumstances.[13] But the proximity and sufficiency of connection have nothing to do with to what or whom the circumstances belong. In the Courts initial statement, circumstances must belong to the damage, not the defendant. It follows, that if it belongs to the defendant, it should be discounted as irrelevant. Proximity has nothing to do with possessiveness. Joining these two arguments together appears to be an attempt to relate the Courts previous argument regarding the irrelevance of the beliefs of the defendant to the direct wording of the legislation. However, in my opinion, it fails to do so.
There is no reason why ‘damage and its circumstances’ should not relate to the beliefs of a defendant, and attempting to designate ‘circumstances’ as belonging to ‘damage’ or ‘defendant’ is unnecessarily artificial and unhelpful. Going back to the example given by the Court of the child in the car – the honest belief of the person in needing to take action, and having the consent of the owner of the car, is apparently made clear by their belief in the urgency of the situation and potential harm that might result if they don’t act. Why then should not the urgency of climate change be relevant? Or the potential extensive damage it can cause? This may be as obvious to protesters in their beliefs as is the damage that may come to the child in the car.
Even more strange is that the Court then somewhat backtracks and states that the fact that the defendant caused the damage in furtherance of a protest could be a ‘circumstance’ of the damage, but that anything beyond that should not be considered as relevant.[14] But wouldn’t that be a circumstance that belonged to the defendant rather than the damage, as it relates to their intention. An act of protest does not exist independently of the protester and their intention as a circumstance belonging to the damage rather than themselves. If subjective intention is relevant, why is it only the abstract intent to protest that belongs to the circumstances, but the rest belongs to the defendant? It is anticipated that this particular logic is going to face some difficulties.
Conclusion
In its conclusion, the Court stated that ‘circumstances’ does not include the ‘merits, urgency or importance of the matter about which the defendant is protesting.’[15] This is despite a reference to the urgency and need for speedy action in getting the child out of the car in the example where the defence would be capable of applying. Furthermore, as Counsel for C anticipated, this has created a specific sub-category – protesters – to whom this applies, and not apparently to all defendants. The only fact that a protester can rely upon is that the act was committed as an act of protest and nothing more.[16] One could be protesting changing the name of ‘Cocopuffs’ to ‘Chococrispies’ and the fact that it is a protest would have the same relevance for the damage as protesting against climate change. Whilst on the surface, no protest should necessarily have any more ‘importance’ than another, when it comes to having an evidenced honest belief that one could cause the damage with consent of the owner, the subjective belief in the importance and urgency of the issue being protested is surely relevant.
All of this becomes more confusing when taken in light of the second question of the AG which related to when a judge can withdraw a defence from a jury. Whilst this part of the judgment essentially upheld existing caselaw on the subject, stating that ‘a judge may withdraw a defence from a jury if no reasonable jury properly directed could reach a particular conclusion’,[17] there may now be concerns regarding what evidence can be put to a jury. If evidence relating to the opinions of the defendant in regard to the cause for which they protest are now irrelevant, one would assume they cannot be presented to the jury. Only evidence that relates to that fact that it was a protest in the abstract would now be relevant, as only an honestly held belief that the owner would have consented to the damage due to an abstracted protest is now permitted. So, would the names of the protest groups be withheld for fear of influencing opinions on the ‘urgency’ and ‘merits’ of the protest?
This judgment therefore appears to be muddled in its reasoning and may end up confusing more than it clarifies. Attempting to link arguments of proximity to possessiveness in relation to ‘circumstances’ so that it may relate to the wording of the legislation is artificial, complicated, and unclear.
[1] Attorney General’s Reference No.1 of 2023 Pursuant to Section 36 of The Criminal Justice Act 1971 [2024] EWCA Crim 243 (AG Ref 2024).
[2] AG Ref 2024 (n 1), [19].
[3] AG Ref 2024 (n 1), [19].
[4] AG Ref 2024 (n 1), [21].
[5] AG Ref 2024 (n 1), [21].
[6] AG Ref 2024 (n 1), [44].
[7] AG Ref 2024 (n 1), [44].
[8] AG Ref 2024 (n 1), [44].
[9] AG Ref 2024 (n 1), [45].
[10] AG Ref 2024 (n 1), [45].
[11] AG Ref 2024 (n 1), [46].
[12] Hill and Hall (1989) 89 Cr App R 74.
[13] AG Ref 2024 (n 1), [46].
[14] AG Ref 2024 (n 1), [47].
[15] AG Ref 2024 (n 1), [65(i)].
[16] AG Ref 2024 (n 1), [65(ii)].
[17] AG Ref 2024 (n 1), [52] – [64].
