Kelleher, R v

For the statutory defence of lawful excuse in criminal damage, the defendant’s asserted purpose must objectively engage the protection of property, a property right or an interest. Honest belief remains material to the statutory belief requirements, but political protest or publicity which cannot itself protect property does not raise the defence for a jury.

Withdrawal of an unsupported defence does not permit a judge to direct a guilty verdict. The Crown must still prove the offence to the jury, which alone returns the verdict. A wrongful direction may nevertheless leave a conviction safe where, absent the error, the only reasonable and proper verdict was guilty.

The appellant deliberately damaged a statue of Lady Thatcher at the Guildhall Gallery to publicise his opposition to political and economic policies which he believed endangered the future of his son and others.

At his first trial at Southwark Crown Court the jury was discharged after failing to agree. At the retrial, His Honour Judge Bathurst-Norman ruled that lawful excuse under the Criminal Damage Act 1971 was unavailable and told the jury that there could only be a guilty verdict. The appellant was convicted and sentenced to three months’ imprisonment.

He appealed against conviction, contending that lawful excuse should have been left to the jury and that the judge could not direct a conviction.

1. Appeal dismissed. The conviction was safe, although the trial judge’s language crossed the line between forceful comment and an impermissible direction to convict.

2. Under section 5(2)(b) of the Criminal Damage Act 1971, the statutory beliefs about immediate need and reasonable means are assessed by reference to the defendant’s honest belief. However, the court must first decide whether the defendant’s stated purpose is capable of engaging the statutory protection of property. Following R v Hunt ((1978) 66 Cr App R 105), that question is objective.

3. The appellant’s purpose was to express political views and obtain publicity. Damaging the statue was not an act capable of protecting his own property, another person’s property, or a relevant right or interest. The judge therefore correctly withdrew lawful excuse from the jury.

4. Even after that ruling, the prosecution had to establish the affirmative case of criminal damage to the jury’s satisfaction. The jury alone could return a voluntary verdict of guilty. The court followed DPP v Stonehouse ([1978] AC 55) and held that the contrary conclusion in R v Hill and Hall (89 Cr App R 74) was erroneous in this respect.

5. The error did not make the conviction unsafe. Applying the safety approach in R v Davis & Others ((2001) 1 Cr App R 115) and the application of the proviso in DPP v Stonehouse, the court held that the evidence and admissions made a guilty verdict inevitable after a proper direction.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction, holding that the defence of lawful excuse was correctly withdrawn but that the judge wrongly appeared to direct a guilty verdict.
• Southwark Crown Court At the retrial, His Honour Judge Bathurst-Norman convicted the appellant of criminal damage and imposed three months’ imprisonment. An earlier jury trial before Aikens J ended when the jury failed to agree and was discharged.