Tuesday 19 March 2024

Criminal Damage Act 1971 - damage caused by protesters and the defence of lawful excuse

The Criminal Damage Act 1971 was enacted to 'revise the law of England and Wales as to offences of damage to property ...'  First, a bit of history ...


The Act was the product of the Law Commission's work (Report 29 published 23 July 1970) which, at the time, was part of a process of revising the criminal law with a view ultimately to codification. The latter has not been achieved. A link to the Commission's report is below.

The House of Lords Second Reading on the Criminal Damage Bill is worth reading for the succinct speech of Lord Hailsham (then Lord Chancellor), setting out the purpose of the Bill - Criminal Damage Bill Hl - Hansard - UK Parliament

The Law Commission reported

that the criminal law relating to damage to property was 'extremely complicated and unsatisfactory.' That was well-known to practitioners at the time and very few, if any, wept for the repeal of most of the Malicious Damage Act 1861. 

The Criminal Damage Act 1971 thus removed from the law all but a few sections of the 1861 Act and also repealed many other enactments relating to damage (e.g. Arson in Her Majesty's Dockyards etc). For years afterwards some used to insist that the dockyards offence was still one of the remaining capital offences)!

The 1971 Act:

Section 1 enacted two offences of criminal damage - see section 1(1) and 1(2). In both cases the phrase 'without lawful excuse' appears. Section 2 deal with threats to destroy or damage property and section 3 deals with possession of ' anything with intent to destroy or damage property.'

The important question of what is a "lawful excuse" is addressed to some extent by section 5

The Law Commission report noted:

'Clause 5(1) whilst preserving all existing defences (see subsection (5)), provides for certain special lawful excuses, as to the impact and extent of which, on the law as it stands, there is some doubt.'

The special lawful excuses were (a) an honest belief that the owner of the property concerned has consented to its destruction or damage, or would have consented had he known the circumstances; and  (b) an honest belief that it was reasonable to destroy or damage property to protect property belonging to oneself or another, or to protect a right or interest (as defined in subsection (4)) which was or was believed to ‘be vested in oneself or another.'

Section 5(2)(a)

Attorney-General Reference No 1/2023

Interestingly, there was only very limited authority on the interpretation of section 5(2)(a) but it became an increasingly prominent provision  in the context of the activities of climate change protesters.

Now the section must be read in the light of Attorney General's Reference On A Point of Law No. 1 of 2023 [2024] EWCA Crim 243 (18 March 2024) (bailii.org).

A full reading is essential but, in particular, note paragraphs 40 to 51 where the court's view of the defence is set out. The paragraphs are clearly written and there is no need for me to set them out here.

The conclusion is at paragraph 65 - 

    i) "Circumstances" in the phrase "the destruction or damage and its circumstances" do not include the merits, urgency or importance of the matter about which the defendant is protesting, nor the perceived need to draw attention to a cause or situation.
    ii) "Damage and its circumstances" means the damage and the circumstances of the damage which, in protest cases, means the fact that the damage was caused as part of a protest (against a particular cause).

Paragraphs 54 to 64 discuss when a trial judge is entitled to remove a defence from the jury. Essentially, the court reaffirmed the law as stated in Attorney General's Reference (No.1 of 2022) - [2022] EWCA Crim 1259.

Note: The image at the top is the maze at Hampton Court. Lord Hailsham told the House of Lords Second Reading that his research revealed about thirty different statutory offences, under diverse Acts, relating to a wide variety of valuable objects; including tomb stones, hackney carriages, gas-lit street lamps and Westminster Bridge. He described the results of this as a "Hampton Court maze" which was 'often tiresome and occasionally bizarre.'

The Law Commission report:

LC.-029-CRIMINAL-LAW-REPORT-ON-OFFENCES-OF-DAMAGE-TO-PROPERTY.pdf (cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com)

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