Defences S.5(5)- general defences (e.g.

. mistake, self-defence and duress of circumstances) can be pleaded on a charge of criminal damage Both subsections (1) and (2) provide that the destruction or damage to property must be ' ithout la ful e!cuse' but, given the endangerment to life element of the offence contrary to subsection (2), it ould only be in fairly exceptional circumstances that a defendant ould succeed.

 "n e!ample might be here the defendant hits his attacker in selfdefence ith a heavy ornament so hard that the blow smashes the ornament and fractures his attacker s skull. o #ere, provided the defensi!e force was both necessary and reasonable, the defendant ould have a defence should he be charged ith aggravated criminal damage.

s.5(2) "awful excuse $ote that here the defendant claims that he had a la ful e!cuse the burden of proof remains on the prosecution to prove that he did not have such la ful e!cuse. Section 5(2) of the %riminal &amage "ct provides hat could be described as a partial definition of la ful e!cuse as a defence but only to a charge under s.#(#) of the "ct (i.e. simple criminal damage). 'ection 5(2) does not apply to the offence contrary to s.#(2)$(%) of the "ct. [s.5(1) mentioned only applied to s.1(1)]

 'ection ((2)(a) and (b) sets out t o situations here a defendant ill have a defence to a charge of simple criminal damage. o (a) )here the defendant belie!es that a person entitled to consent to the destruction or damage has consented to it, or would do so if that person knew of the circumstances, or o (b) )here the defendant acted in order to protect property& right or interest (either his own or another s) in the belief that the property or interest was in immediate need of protection and that the actions ere reasonable in all the circumstances. That mean criminal damage can be done in order to protect another thing 'ection ((2)(a) is similar to s.2(1)(b) of the *heft "ct 1+,-

.f no evidence of la ful e!cuse, then ithdra from /ury but not lead the /ury to convict 0ou ill see from the cases you have /ust considered that here there is, in truth, no e!idence of lawful excuse that the /ury could be asked to consider, the trial 'udge is entitled to withdraw that issue from the 'ury but the /ury should not be directed by the trial /udge to convict. *his as approved by the #ouse of 1ords in (ang 2233(4

s.((5) )onestly belie!e enough for both subsection 2no need reasonable believe4, reasonable s.( (2)(b) based on hat & believed "s ith s.((2)(a), the defendant's belief that he as acting in order to protect property under s.((2)(b) only needs to be honest* it does not need to be reasonable.

S.5(%)- +or the purposes of this section it is immaterial whether belief is 'ustified or not if it is honestly held.

, ! -ones and others 223364 the appellants appealed to the %ourt of "ppeal on a number of issues *he prosecution cross-appealed against the trial /udge's ruling on the issue of hether a belief that property is in need of protection has to be /ustified or merely honestly held and hether the threat to property sought to be protected has to be unla ful for the purposes of s.((2)(b).

 *he defendants in this case had been charged ith a number of offences, including criminal damage and arson at an 7"8 base. *hey had raised a number of defences including that under s.((2) (b) of the %riminal &amage "ct 1+91. *hey sought to rely on their beliefs as to the la fulness of the actions of the :; in preparing for, declaring and aging ar in .ra< in 2335. *he %ourt of "ppeal held that the effect of s.5(2)(b) as that a defendant ould be treated as ha!ing a lawful excuse if, at the time he acted, he belie!ed the property in .uestion was in immediate need of protection and that the means proposed to be adopted would be reasonable ha!ing regard to all the circumstances. .t as immaterial whether the belief was 'ustified pro!ided that it was honestly held.

 *he only ob'ecti!e element /reasonableness0 that the /ury ould need to consider as whether it could be said that& on the facts as belie!ed by the defendant, the criminal damage alleged could amount to something done to protect another s property. *here as no further re<uirement that, on the facts as believed by the defendant, those facts established that the threat as of unla ful damage to the property.

 1atham 1=, ho handed do n the /udgment of the court, said> o )hilst there are clearly strong policy arguments for imposing such a further restriction on the availability of the defence, the fact is that the statute does not so provide. Sub'ect to the one ob'ecti!e element to hich e have referred, the court and the 'ury are concerned simply with the .uestion of a defendant s honestly held beliefs. .t follo s that no issue can arise in relation to this defence hich involves consideration of the legality of the ar in .ra<.

?ven drunken mistaken honest belief is valid although it is basic crime *he only issue here is hether the defendant's belief as honestly held and in -aggard ! Dickinson 21+-34, it did not matter for these purposes that the defendant s mistake was a drunken mistake. D& after an e!ening s drinking& found that she had been locked out of her home. She broke into a house hich, in her drunken state, she thought belonged to a friend who would consent. 1n fact she was mistaken@ it the house ne!t door. as

*he &ivisional %ourt <uashed the conviction relying on s.((5) hich states> +or the purposes of this section it is immaterial whether a belief is 'ustified or not if it is honestly held .

 Austill = said that2 o the court is re<uired by s.((5) to focus on the e!istence of the belief, not its intellectual soundness@ and a belief can be /ust as much honestly held if it is induced by intoxication& as if it stems from stupidity& forgetfulness or inattention. 0ou should note here that this decision has 'troubled' the 1a %ommission as criminal damage is a basic intent offence. 'ee para 2.+6 (at page 65) of its 7eport '.nto!ication and %riminal 1iability' (1a %om $o. 516) published in =anuary 233+, and clause ( of the Bill.

1. 5(2)(a) - )here the defendant belie!es that a person entitled to consent to the destruction or damage has consented to it, or would do so if that person knew of the circumstances 3 sees that his neighbour4s garage is in a dangerous condition and likely to fall causing in'ury to passers-by, if B pulls do n the garage to prevent such possible in/uries in the belief that 5 would ha!e consented, he will ha!e a lawful excuse. .n Denton it as held that here any employee damaged property belonging to his employer at the re.uest of his employer ho ished to make a fraudulent claim in relation to the property, the employee as entitled to rely on his honest belief that the person entitled to gi!e consent to the damage to the property had, in fact, done so

Cerson entitled to consent no necessarily be the o ner 6ormally speaking, the person believed to be entitled to consent will be the owner, but not necessarily. .t may include the owner s agent or manager or any other person D thinks has the power of consent.

%ontrast> 7xcluded honestly believe entitlement come from Dod 8lake ! D99 a vicar as prosecuted for riting a biblical <uotation on a concrete pillar at the perimeter of the #ouses of Carliament. #e had been one of a group of protesters against the use of force by the allies in the Dulf )ar. Cart of his defence as that he was carrying out the instructions of :od& and that he belie!ed :od to be the person entitled to gi!e permission to damage the property. *he &ivisional %ourt held that although po erful and genuine his belief that Dod as the person entitled to give permission, but this did not amount to a lawful excuse under the domestic law of 7ngland

"pplication> .ncluded act on o nerEs re<uest .n Denton, D set fire to ; s property at ; s re.uest, to perpetrate an insurance fraud. #e as convicted at first instance but his conviction as later <uashed. ;he insurance company had no proprietary interest in the property damaged and ; was the sole owner, so could not be liable. "s 1ord 1ane %= said in this case> 1t is not an offence for a man to set light to his own property . <nd if ; was not liable& D could not be either because of the presence of ; s consent (see s.((2)-la ful e!cuse).

2. 5(2)(b)- defendant acted in order to protect property& right or interest (either his own or another s) in the belief that the property or interest was in immediate need of protection and that the actions ere reasonable in all the circumstances.

%lamping of the tyre did not consider as Fimmediate4 need of protection Mitchell 223354- not immediate & accepted that his damaging a wheel clamp hich had been attached to his car did not fall ithin s.((2), because of the lack of immediacy. )unt 21+994- not direct and immediate #ere the defendant set fire to some bedding in a block of old people's flats. .t as decided that it was to draw attention to the fact that the fire alarm was defecti!e and not to protect property hich is the essence of the defence *hat mean he argued to test the fire alarm by criminal damage in order to protect

)onestly belie!e /sub'ecti!e0 enough for both subsection 2no need reasonable believe4, reasonable s.( (2)(b) /ob'ecti!e0 based on hat & believed "s ith s.((2)(a), the defendant's belief that he as acting in order to protect property under s.((2)(b) only needs to be honest* it does not need to be reasonable.

S.5(%)- +or the purposes of this section it is immaterial whether belief is 'ustified or not if it is honestly held.

, ! -ones and others 223364 the appellants appealed to the %ourt of "ppeal on a number of issues *he prosecution cross-appealed against the trial /udge's ruling on the issue of hether a belief that property is in need of protection has to be /ustified or merely honestly held and hether the threat to property sought to be protected has to be unla ful for the purposes of s.((2)(b).

 *he defendants in this case had been charged ith a number of offences, including criminal damage and arson at an 7"8 base. *hey had raised a number of defences including that under s.((2)(b) of the %riminal &amage "ct 1+91. *hey sought to rely on their beliefs as to the la fulness of the actions of the :; in preparing for, declaring and aging ar in .ra< in 2335. *he %ourt of "ppeal held that the effect of s.5(2)(b) as that a defendant ould be treated as ha!ing a lawful excuse if, at the time he acted, he belie!ed the property in .uestion was in immediate need of protection and that the means proposed to be adopted would be reasonable ha!ing regard to all the circumstances. .t as immaterial whether the belief was 'ustified pro!ided that it was honestly held.

 *he only ob'ecti!e element /reasonableness0 that the /ury ould need to consider as whether it could be said that& on the facts as belie!ed by the defendant, the criminal damage alleged could amount to something done to protect another s property. *here as no further re<uirement that, on the facts as believed by the defendant, those facts established that the threat as of unla ful damage to the property.

 1atham 1=, ho handed do n the /udgment of the court, said> o )hilst there are clearly strong policy arguments for imposing such a further restriction on the availability of the defence, the fact is that the statute does not so provide. Sub'ect to the one ob'ecti!e element to hich e have referred, the court and the 'ury are concerned simply with the .uestion of a defendant s honestly held beliefs. .t follo s that no issue can arise in relation to this defence hich involves consideration of the legality of the ar in .ra<.

Besides honestly believe, courts have to access hether reasonable on the fact belief by & hereby the action capable of protecting property$had protected the property 8lake ! D99 here B claimed that he had damaged the property in the belief that it ould protect property in the Dulf, but the &ivisional %ourt held that e!en if he did belie!e that he had a lawful excuse under s.5(2) (b)& the court must ob'ecti!ely assess whether, on the facts believed by the defendant, the action taken by him was capable of protecting the property or had& in fact& protected the property. %ommentary .t is easy to understand hy, in the conte!t of Blake, the court ished to impose an ob/ective test, but it is extremely difficult to find such a test in the wording of the statute. "t best it could be said that an ob/ective assessment of the facts

might assist the court in determining what belief the defendant did& in fact& hold.

Reasonable objective standard .f threat already materialiGed, then satisfied the re<uirement 'o far as s.5(2)(b) is concerned, the defendant ill satisfy the re.uirement that his property or interest was in immediate need of protection if the threat to his property has already materialiGed (=hamberlain ! "indon (1++-)). D had demolished a wall built on >4s land as & honestly belie!ed such action as necessary to protect his right of !ehicular access across >4s land and that delay ould pre/udice his rights. *he &ivisional %ourt held that D had a lawful excuse* ob'ecti!ely determined& he was protecting his right of way.

$ot satisfied if only tenuous connection to the purpose of protecting the property )here the defendant's conduct, ho ever, has only a tenuous connection ith his alleged purpose of protecting property this defence may not be a!ailable to him, as in )unt 21+994 #ere the defendant set fire to some bedding in a block of old people's flats. .t as decided that it was to draw attention to the fact that the fire alarm was defecti!e and not to protect property hich is the essence of the defence o *hat mean he argued to test the fire alarm by criminal damage in order to protect

.f several purpose, one of the purpose to protect is sufficient .f a person acts with more than one purpose, it is sufficient that one purpose is to protect property (see =hamberlain ! "indon).

.f no evidence that & believe his conduct is necessary to protect, then no la ful defence .n ?elleher223354 the defendant ho decapitated a statue of Aargaret *hatcher in an art gallery and as charged ith criminal damage contrary to s.1(1) of the "ct, failed ith his defence under s.((2)(b). )e argued that his damage to the statue as to bring attention to those policies of @argaret ;hatcher hen she as Crime Ainister hich fostered materialism and continued to make the orld more dangerous and ould e!entually lead to the destruction of the planet. "t his first trial the /ury as unable to come to a verdict but at his retrial the trial /udge directed the /ury to convict as the defence under s.((2) did not apply. *he defendant's appeal dismissed. as

 *he trial /udge's direction to the /ury to convict as rong but this did not /ustify allo ing the appeal. *he defendant's purposes fell outside the scope of those provided by s.((2)> there as no e!idence that he had belie!ed that his conduct was necessary in order to protect his own or another s property or right or interest.

"pplication> 6o defence if the belief protected property is a !alid property =resswell ! D99 ;he defendants, had entered the property and destroyed the traps in order to safeguard AwildB badgers. .n defence, they contended that the badgers were no longer wild but formed ApropertyH ithin s.13 and as such they ere acting to safeguard the property (badgers reduced into possession). *his argument as re/ected by the &ivisional %ourt. ;eane 1.=. asserted that here a trap has been established a wild animal will not be Ain the course of being reduced into possessionB until the point at which the animal enters the trap@

 Besides, 6o indi!idual had any proprietary right or interest in the badgers& or had possession or control of them& therefore they are not yet a !alid property

"pplication> & damages property in order to protect their o n property, e.g. o shoots a dog worrying their sheep o sets fire to a haystack to pre!ent a fire on neighbouring land spreading to their house