Director of Public Prosecutions v Bayer & Ors

A common-law defence of private defence or protective force is available only where the defendant honestly believed that actual or imminent damage to property constituted, or would constitute, an unlawful or criminal act. A court must first decide whether the defence is legally available on the facts. If it is, the court assesses the circumstances as honestly believed by the defendant and then decides objectively whether the force used was no more than reasonable in those circumstances. A belief that lawful activity may cause environmental or other property damage does not satisfy the threshold requirement. The common-law defence differs from the statutory lawful-excuse defence in Criminal Damage Act 1972.

The Director of Public Prosecutions appealed by way of case stated from the decision of District Judge House in the Sherborne Magistrates’ Court. The district judge had acquitted four respondents charged under section 68 of the Criminal Justice and Public Order Act 1994 after they attached themselves to tractors planting genetically modified maize.

He accepted that the respondents honestly and reasonably feared damage to neighbouring property and held that their conduct was justified as a reasonable defence of property. The central issue was whether that finding was properly open to him.

1. Appeal allowed. The case was remitted to the district judge with a direction to convict. The ingredients of aggravated trespass under section 68(1) of the Criminal Justice and Public Order Act 1994 had been established.
2. Lawful justification may answer conduct satisfying a criminal offence, even where the offence does not expressly include words such as unlawful or without lawful excuse. The court must first determine whether the defence is available as a matter of law, then whether it defeats the charge.
3. The common-law defence of private defence or protective force requires actual or imminent property damage constituting, or which would constitute, an unlawful or criminal act. The respondents knew that the drilling was lawful, so the defence was unavailable. The district judge erred by considering reasonableness without first addressing that threshold.
4. If the threshold is met, the court considers the facts as honestly believed by the defendants and assesses objectively whether the force used was no more than reasonable in all the circumstances.
5. The common-law defence differs from the statutory defence in section 5(2)(b) of the Criminal Damage Act 1972. Costs in the High Court were awarded to the Director, subject to further submissions; costs below were left to the district judge.

• High Court (Administrative Court): appeal by way of case stated allowed and remitted with a direction to convict.
• Sherborne Magistrates’ Court: District Judge House acquitted the respondents on 7 March 2003, holding that their conduct was reasonable in defence of property.