Court clarifies scope of ‘lawful excuse’ defense in protest-related damage under Criminal Damage Act 1971

Citation: [2024] EWCA Crim 243
Judgment on

Introduction

The case Attorney General’s Reference on a Point of Law No 1 of 2023: EWCA-Criminal 2024 243 [2024] EWCA Crim 243 deals with the scope of the ‘lawful excuse’ defense under section 5(2)(a) of the Criminal Damage Act 1971. It examines its applicability, particularly in the context of protest cases, where damage to property occurs as part of a political demonstration. The court is tasked with determining what constitutes ‘circumstances’ of damage necessary for this defense and clarifying the law for uniform application in such cases.

Key Facts

The defendant, referred to as C, was acquitted of conspiracy to damage property during protests aimed at drawing attention to climate change. C and co-defendants caused damage to various properties by throwing paint and attaching letters, inviting those responsible to respond to the climate emergency. The appeals raise important questions about the interpretation of “circumstances” under section 5(2)(a) of the Criminal Damage Act 1971. C’s defense, in part, hinged on her belief that the persons entitled to consent to the damage of their property “would have consented if they had known of the damage and its circumstances.”

The case revolves around two core legal principles:

  1. Lawful Excuse Defense under Section 5(2)(a): The court clarifies that the defense requires belief in the owner’s consent to the damage at the time of the act. This is a subjective test, but despite an honest belief not requiring justification, it must be specific to the circumstances of the damage.

  2. Objective Circumstances Related to Damage: The court interprets ‘circumstances’ to mean matters directly associated with the damage. It rules that the moral or political justifications for the damage do not relate to its circumstances within the meaning of section 5(2)(a). Thus, the belief causing the act – here, as a protest – can be circumstances of damage, but deeper motivations or goals of the protest are not.

The court references several prior cases to reinforce the statutory interpretation of ‘lawful excuse’, discussing the remit of ‘circumstances’ and when such a defense should be left to the jury:

  • R v Jaggard: Relevant due to the owner’s consent being central to the defense but not applicable to the present case’s facts.

  • R v Denton: Shows that irrespective of owner’s intent, consent to the damage validates the defense.

  • R v Jones and DPP v Ditchfield: Both reiterate that exercising the right to protest doesn’t include damaging property and the courts are not platforms for promoting causes through criminal acts.

  • Hill and Hall: Demonstrates remoteness of the damage from the eventual aim, impacting the defense’s validity.

The court also declined a question about ruling before the case was opened to the jury, applying the principles from the Attorney General’s Reference (No.1 of 2022) concerning when an issue should not be left to the jury.

Outcomes

The court concludes that:

  1. Merits of Protestor’s Cause: The merits, urgency, or importance of the protest subject do not qualify as ‘circumstances’ under section 5(2)(a).

  2. Protest as Part of Circumstances: The act of protest itself, meaning the fact that damage was caused as part of a protest against a particular cause (such as climate change), can be part of the ‘circumstances’.

  3. Standards for Removing a Defence: The trial judge may only remove a defence from the jury’s consideration if no reasonable jury, properly directed, could find for the defendant.

Conclusion

The case Attorney General’s Reference on a Point of Law No 1 of 2023 sets a precedent for construing the lawful excuse defense under section 5(2)(a) of the Criminal Damage Act 1971, particularly in relation to protest-related damage. It underlines that the circumstances of the damage, not the philosophical or political motivations behind it, must justify a belief in consent. This decision delineates the contours of lawful excuse and clarifies when such a defense may reasonably be left to a jury, thereby equipping legal professionals with a precise legal framework to apply in analogous situations.